On Constitution Day, AG Sessions Vows to Fight for Free Speech on Campuses

September 17, 2018 Updated: September 18, 2018

Responding to a trend of speech codes being instituted on college campuses, Attorney General Jeff Sessions said the Department of Justice is concerned about the suppression of free speech, and that it won’t hesitate to get involved if it finds this right being eroded on college campuses in favor of “politics, ideology, passion, and power.”

Last year, the Foundation of Individual Rights in Education (FIRE) found that of 449 colleges it surveyed, almost 40 percent had some sort of speech code that restricted the right to free speech protected under the First Amendment, which also protects the rights to assemble, to petition the government, and to freely practice one’s religion.

Speaking at the Department of Justice on Constitution Day, Sept. 17, Sessions said that while the United States has not always done a good job of upholding the law (he cited the Sedition and Alien acts), he quoted James Madison in saying that freedom of speech is “the only effectual guardian of every other right.”

Since Sessions has been in office, the Department of Justice has submitted four statements of interest in cases that deal with free speech on college campuses.

In one case, the University of California–Berkeley allegedly created both written and unwritten policies for “high-profile” guest speakers that members of the Young America’s Foundation and Berkeley College Republicans said discriminated against conservative speakers they tried to bring on campus. A judge decided in May to dismiss the university’s request to throw out the case.

Pierce College in Los Angeles allegedly prevented a student from distributing Spanish copies of the Constitution outside the school’s free speech zone. The suit alleged that students had to get a permit to use the free speech zone, and once the permit was issued, they were told that there were rules on what they could say in the free speech zone. In January, a judge allowed the case to go forward.

Georgia Gwinnett College in Lawrenceville, Georgia, also allegedly limited free speech to a zone on campus that only opened for 18 hours per week and could only be used by an applicant every 30 days. One of the two plaintiffs, a student who tried to use the free speech area to proselytize for Christianity, said he was asked to leave by campus police after they received complaints. The judge dismissed the case after the school changed its policy.

The Justice Department became involved in another case brought in March against the University of Michigan by a group called Speech First for forbidding certain types of speech and creating a “Bias Response Team” on campus. The plaintiffs said the team was charged with investigating incidents of bias, but that later the language on the team’s webpage was changed to say that it does not do investigations and does not have any disciplinary power. A federal judge sided with the university and dismissed the case.

The issue is tricky for college administrators who try to foster diversity while also sending a message of inclusion and respect on their campuses.

Lee Tyner, general counsel at Texas Christian University, said college administrators can get in trouble for protecting free speech, especially what is deemed as “hate speech,” because it can get them in trouble under the Civil Rights Act’s Title 6 or Title 9, which prohibits discrimination based on appearance, national origin, or gender.

“The university must pick its poison,” he said. “The university is either liable to the speaker for prohibiting harassing speech before it breeds a hostile environment, or the university is liable to the target of harassment for failing to stop the harassing conduct before it has created a hostile environment.

“[It’s] an impossible task to fulfill one duty without creating a liability for breaching the other.”

He disputed any characterization that free speech on college campuses was at a “crisis” point.

FIRE found that 46 percent of college students and 48 percent of adults not in college believed that hate speech should be protected by the first amendment.

However, opinions differed among members of different political parties. Adults who identified as Republican versus Democrat believed 60 to 38 percent that hate speech was protected, while 52 percent of Republican students versus 41 percent of Democratic students believed it was protected.

A Knight Foundation, Newseum, and Gallup poll found that 78 percent of students say colleges should expose students to all types of speech and viewpoints, compared to 66 percent of adults.

Sessions—pointing to the 231 years that the Constitution and 227 years that the Bill of Rights have been in existence—said the right to speak freely, no matter how offensive, is part of the United States’ foundation.

“We are going to keep fighting for the great freedoms vouchsafed to the American people,” he said. “And we will endeavor to do so according to the highest constitutional standards.”

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