Free Speech Shields Left and Right Alike

Corey Friedman
Tue, 26 Apr 2022 10:04:38 -0700
Opinion

Conservatives are cheering the latest circuit court decision on campus free speech. Few seem to realize it will help dismantle Republican-backed education bills targeting critical race theory in the classroom.

A unanimous 11th Circuit U.S. Court of Appeals panel sided with the conservative nonprofit Speech First in its lawsuit against the University of Central Florida last week. Students sued UCF over provisions in its discriminatory harassment and computer use policies that run afoul of the First Amendment and argued the school's bias response team chills protected speech.

The case, Speech First v. Cartwright, et al., turned largely on a procedural issue. Appellate judges reversed a district court's finding that the plaintiffs — UCF students who hold membership in the Speech First organization — lacked standing to sue because they hadn't faced discipline for breaking university rules, unconstitutional or not.
Updated: Tue Apr 26, 2022

Conservatives are cheering the latest circuit court decision on campus free speech. Few seem to realize it will help dismantle Republican-backed education bills targeting critical race theory in the classroom.

A unanimous 11th Circuit U.S. Court of Appeals panel sided with the conservative nonprofit Speech First in its lawsuit against the University of Central Florida last week. Students sued UCF over provisions in its discriminatory harassment and computer use policies that run afoul of the First Amendment and argued the school's bias response team chills protected speech.

The case, Speech First v. Cartwright, et al., turned largely on a procedural issue. Appellate judges reversed a district court's finding that the plaintiffs — UCF students who hold membership in the Speech First organization — lacked standing to sue because they hadn't faced discipline for breaking university rules, unconstitutional or not.

Students have a legal right to challenge the policies, Circuit Judge Kevin C. Newsom wrote in the court's opinion, because their very existence causes self-censorship.

As 11th Circuit precedent, the published opinion makes it easier to hold colleges accountable for infringing on free speech rights in Florida, Georgia and Alabama. That's a significant, if somewhat technical, victory. It's not the kind of landmark case that settles a raging constitutional controversy.

Speech codes that prohibit expression the First Amendment protects are unlawful on public college and university campuses, and courts have consistently struck them down, Whack-a-Mole style, for decades. If UCF didn't think it could have the Cartwright suit tossed for lack of standing, university lawyers likely would have rewritten the rulebook and rushed to the settlement table.

Judges didn't preside over a wholesale expansion of student speech rights — they didn't have to, as those freedoms already are quite robust. They did, however, take full advantage of the opportunity to lambast American colleges for enacting restrictions that would file down the sharp elbows of vigorous debate in the name of campus comfort.

"A university that has placed its highest premium on the protection of feelings or safe intellectual space has abandoned its core mission," Senior Circuit Judge Stanley Marcus inveighed in an absolute thunderbolt of a concurring opinion. "The protection of feelings or the creation of safe space rightly might be the foremost goal in some settings, like at a family dinner, but it is not right for a university. Its unambiguous mission must remain the pursuit of truth."

Marcus' concurrence drips with disdain for colleges that make the fatal mistake of limiting discourse in order to spare minorities and members of marginalized groups from offense.

"A university that turns itself into an asylum from controversy has ceased to be a university; it has just become an asylum," he concludes.

Conservative culture warriors like to style themselves as champions for free speech, but they caterwaul as loud as any progressive on the social justice left when the First Amendment wrecking ball comes swinging for their preferred prohibitions.

Case in point: Florida's Stop WOKE Act, which bans concepts associated with critical race theory in college as well as in the state's K-12 public schools. Opponents filed the first federal suit against the law mere minutes after Gov. Ron DeSantis signed it last week.

Florida's law is similar to a bevy of bills aimed at stopping what Republicans call indoctrination on race and gender issues that takes the form of worksheets instructing students to tally their privilege points and social studies lessons describing American policies as examples of structural racism.

States can ensure that no student is forced to parrot progressive views, but banishing mere mention of such ideas from the classroom is censorious overreach. Florida's law is especially egregious in its scope, treating adult college students and tenured research professors like grade schoolers and homeroom teachers.

The Foundation for Individual Rights in Education sent letters to 39 public colleges and universities in Florida reminding them that state laws don't supersede the Bill of Rights. Forbidding discussion of sensitive or uncomfortable topics is unconstitutional.

When Florida's House Bill 7 is inevitably struck down, many conservatives are sure to cry foul. They'd do well to reread Judge Marcus' wise words: A college that squelches controversy in the name of comfort is no college at all.