Does Trump’s order clarify or complicate free speech on campus?

Two University of Georgia cases illustrate legal challenges

Peter Smagorinsky is a frequent contributor to the AJC Get Schooled blog. He teaches in the University of Georgia's College of Education and is the recipient of the 2017 Distinguished Service Award from the National Council of Teachers of English.

In a guest column today, Smagorinsky discusses Donald Trump's recent executive order threatening to withhold federal research dollars if colleges don't respect and protect free speech.

"We're dealing with billions and billions and billions of dollars," said Trump said at the White House signing ceremony on March 21. "Universities that want taxpayer dollars should promote free speech.”

The order was designed to placate supporters who contend college campuses are liberal incubators that are intolerant and even hostile to conservative thought and speakers.

Colleges are already required to uphold the First Amendment. The White House has refused to explain how the requirement would be enforced differently in the wake of the executive order.

With that background, here is Smagorinsky’s column.

By Peter Smagorinsky

Three recent news stories concerning First Amendment rights caught my attention. I'll start nationally, then look at two events from the University of Georgia that might be affected by the national story.

On March 21, President Trump issued an executive order "directing federal agencies to link grants and certain other funds for higher education to how colleges and universities enforce the right to "free inquiry" on their campuses. At a White House signing ceremony, the president said he wanted to give notice to "professors and power structures" seeking to prevent conservatives "from challenging rigid, far-left ideology."

Agencies, he said, would control grants “to ensure that public universities protect, cherish, protect the First Amendment, First Amendment rights of their students or risk losing billions and billions of dollars of federal taxpayer dollars.”

President Trump’s plan is much longer on vision and intent than it is on details. Analysts have noted, for instance, that there is no mechanism yet to determine when free speech is threatened, when that speech represents a conservative ideology of the sort explicitly protected by the order, how it would be policed (and thus financed), or much of anything else.

Rather, it is a very broad order that explicitly seeks to defend conservative points of view from being suppressed on college campuses that rely on federal funding to support their programs.

I find issues of this sort to be quite fascinating, because they involve defining terms and how they are realized in practice, without having easy answers. The First Amendment of the U.S. Constitution states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

And, yet, not all people have access to “the freedom of speech.” Justice Oliver Wendell Holmes wrote a little over a century ago, “The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic. ... The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”

Libel laws make it so that I cannot say in this space that so-and-so has fathered 10 children out of wedlock, when I know that person has not. That would be defamation or slander, especially if so-and-so can make the case that I lied to harm his reputation, income, brand, or other area of stature.

Cases of this sort often end up in court, because they involve a subjective judgment whether or not I have falsely created a panic or harmed someone’s reputation. Therein lies the problem with any First Amendment issue: It’s a matter of interpretation how that speech is used in relation to other people.

So, let's look at two recent events from UGA, which is the recipient of federal funds. The university made the news with the release of a video of some frat boys in their dorm, drinking beer, mocking slavery, and using the N-bomb to refer to African Americans. UGA swiftly condemned their speech and actions, the Tau Kappa Epsilon national fraternity expelled them, and UGA suspended the fraternity.

The Red & Black student newspaper's coverage included the following: "the future of [the students'] status at UGA likely lies in the hands of social repercussions rather than legal, said Adam Steinbaugh, the director of the individual rights defense program within the Foundation for Individual Rights in Education. Because the university is a public institution, it cannot legally impose formal discipline for speech that is viewed as hateful or offensive, Steinbaugh said. Any further discipline imposed by the university would violate the students' free speech rights. Likely consequences to occur that don't abridge the First Amendment are social consequences, in which peers stop associating themselves with the students or future employers look down on the students' judgment, Steinbaugh said."

University of Georgia professor Peter Smagorinsky
University of Georgia professor Peter Smagorinsky

The boys, then, were exercising their right to freedom of speech, and may be shunned by those who disapprove of their actions. But they are likely to face no formal consequences beyond the national chapter’s decision to expel them.

Under President Trump's order, however, is speech like this to be protected from "rigid, far-left ideology" that imposes "politically correct" values? Associating racial bigotry with a political party or ideology is a subjective judgment.

From what I can gather, liberals consider conservatives to be prone to being racist, and conservatives believe they are not. At the same time, there has been a documented "decline in civility" under President Trump as people have heeded his call to ignore people's sensibilities and speak their minds about people they don't like.

Would the frat boys, then, qualify as victims of far-left ideologues who stifle the free speech of conservative people who courageously defy the politically correct campus environment and tell it like it is? Like the expelled racist frat boys at Syracuse, will they sue the university if they are disciplined?

The second story concerns Irami Osei-Frimpong, an African American teaching assistant and doctoral student in philosophy, who blogs as The Funky Academic. He made racially inflammatory remarks about white people on social media, including, "Some white people may have to die for black communities to be made whole in this struggle to advance to freedom" and "white people are crazy [although] not all of them," given that there are "white allies trying to do the right thing."

His remarks were interpreted as racist by the UGA administration, which responded by saying it “has been vigorously exploring all available legal options. Racism has no place on our campus, and we condemn the advocacy or suggestion of violence in any form. We are seeking guidance from the Office of the Attorney General as to what actions we can legally consider in accordance with the First Amendment.”

Another campus group, the United Campus Workers of Georgia, has come to his defense in a letter co-signed by some faculty members, saying, "Protecting Mr. Osei-Frimpong's right to speak freely and to challenge the long history of white supremacy in this country, this community, and especially this University, should not be controversial. That is the University's job."

Meanwhile, the university is under pressure from donors who have threatened to withhold contributions as long as Osei-Frompong is employed. Alumnus Andrew Lawrence wrote on their behalf, saying, "In this moment, money given to UGA is money given to supporting racism, and the university itself has made it clear that public relations concerns and the inability to reprimand a university employee are of greater importance than the interests of the diverse student body that they constantly tout."

That’s a lot of free speech surrounding these events. Which is subject to discipline from the federal government, and which is not? How do the decisions get adjudicated, and by whom? At what cost, and by whose time and funding, is this inquiry conducted? Who figures out the specific cost associated with any particular free speech violation, and by what formula?

Neither the frat boy nor teaching assistant incident has been resolved to this point. I will follow these developments with great interest, along with so many others that would be subject to President Trump’s executive order.

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