Wednesday, October 17, 2018

Extension of the First Amendment to Private Colleges

Concerning the controversy that affected me a few weeks ago, the First Amendment quickly became the chief stumbling block for those eager to fire me or anyone else who may violate their opinions.  The blog I wrote was not hate speech. However, even it it had been hate speech, it would still have had  First Amendment protection.  As Eugene Volokh recently wrote in Reason:

Of course, there is no hate speech exception to the Free Speech Clause, as the Supreme Court unanimously reaffirmed this year in the Slants case. Private universities aren't legally bound by this (except in California, where a state law applies Free Speech Clause rules to them); but public universities, such as Texas A&M and UT, certainly are.

In the 2017 Slants case, Justice Alito wrote (I'm quoting Volokh) :

[The idea that the government may restrict] speech expressing ideas that offend … strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.”

Expressing hate toward the Democratic Party is perhaps the archetypal form of hate speech--at least according to politically correct academics.  However, partisan speech is not hate speech.  The Democrats who sent me threatening emails, necessitating the presence of five campus police officers outside my classroom two weeks ago, certainly see anti-Democratic Party speech as hate speech.  Of course, in their view calling Republicans Nazis is not hate speech while posting a pro-Republican poster is hate speech.

Justice Kennedy drew this conclusion (again quoting Volokh) in Slants:

A law found to discriminate based on viewpoint is an “egregious form of content discrimination,” which is “presumptively unconstitutional.” … A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.

Hate-filled left wingers will define hate speech to mean any speech that does not agree with their educationist and socialist views.  Hence, it is important to push the limits of speech restrictions.

Happily, early in the sequence of events, I received a helpful email from the Foundation for Individual Rights in Education.  FIRE made clear not only that the speech in the blog was protected but also that any personnel action whatsoever, even an email, amounted to a violation of my First Amendment Rights.

In a 2016 piece, prior to Slants, Adam Steinbaugh of FIRE wrote about the Obama Justice Department's unconstitutional requirements of investigations of speech violations of Title IX.  For instance, in 1992 the Second Circuit Court of Appeals declared that the City College of New York violated the First Amendment by going beyond vocal condemnation and creating a committee to investigate whether "the professor's views, which have no place at the college, 'affected his teaching ability.'"

An extension of a California law that extends First Amendment protection to professors at private colleges might be a useful step to counteract the left-wing intolerance and prejudice that dominates American colleges.  Any private college that receives federal money should be required to comply with the First Amendment as would any public college.