Tuesday Attorney General Jeff Sessions announced the Trump administration will put its weight behind student free-speech complaints against public universities, in a speech at Georgetown University Law that predictably sparked student and faculty protests.
The speech mentioned widely covered recent student protests that descended into violence such as at Middlebury College in Vermont and the University of California at Berkeley, and called for colleges and universities to champion a constitutionally protected American right and the culture necessary to undergird it. Sessions also gave a basic explainer about why it’s important that we continue to protect and cherish our First Amendment rights, even though they sometimes allow others to do things we don’t like.
But even setting aside the law, the more fundamental issue is that the university is supposed to be the place where we train virtuous citizens. It is where the next generation of Americans are equipped to contribute to and live in a diverse and free society filled with many, often contrary, voices.
Our legal heritage, upon which the Founders crafted the Bill of Rights, taught that reason and knowledge produced the closest approximation to truth—and from truth may arise justice. But reason requires discourse and, frequently, argument. And that is why the free speech guarantee is found not just in the First Amendment, but also permeates our institutions, our traditions, and our Constitution.
The jury trial, the right to cross-examine witnesses, the Speech & Debate Clause, the very art and practice of lawyering—all of these are rooted in the idea that speech, reason, and confrontation are the very bedrock of a good society. In fact, these practices are designed to ascertain what is the truth. And from that truth, good policies and actions can be founded.
Reading it, one might wonder why Sessions would take the time to say such rather obvious things. To provoke leftist protesters into making positive reactionary publicity for him? That’s the cynical answer, which in the political world is very often the true one, but to judge by the reactions to Sessions’ speech it appears many Americans do indeed need a free speech 101 class.
Free Speech Is Not Saying Anything With No Pushback
Let’s start with the Georgetown Law faculty, because they ought to know way better. Before Sessions arrived on campus, several signed a protest letter complaining about Sessions’ “hypocrisy” in “speaking about free speech” because “Sessions is a key cabinet member in an administration headed by a President who spent last weekend denouncing athletes engaging in free expression and calling for them to be fired.”
As Sessions pointed out in response during Q&A, the president has free speech rights, too. If the federal government were to prosecute football players for making public political statements, that would indeed violate their free speech rights. The government is doing no such thing nor should it; however, Trump or any other public official also speaking publicly about the matter is merely more free speech.
The Associated Press made this same mistake in its writeup of the event but focused on Sessions’ condemnation of the NFL protesters instead of Trump’s, perhaps taking its frame of supposed hypocrisy from the Georgetown professors. If that’s indeed where AP got the idea, what we have here are Georgetown Law professors teaching influential figures, and all who listen to them, false ideas about constitutionally protected rights. This matters. At out of control campus protests, misunderstandings about free speech have been a key instigator of violence.
Decrying what he sees as political correctness run amok, Attorney General Jeff Sessions said Tuesday the Justice Department will support students who sue universities claiming their free speech rights were violated.
But during the same speech at Georgetown University’s law school, Sessions condemned the NFL players who have been exercising their freedom of expression by kneeling silently during the national anthem before games.
“I have never seen a faculty so quickly and so numerously object to any speaker coming to campus, let alone an Attorney General of the United States of America,” Georgetown Law professor Heidi Li Feldman, a letter signatory, told the Huffington Post. “It is insulting to the community, to the idea of freedom of expression, and therefore to the very point of a law school, which is supposed to be communicating uncontested legal values.”
Free Speech Doesn’t Make It Okay To Spread Falsehoods
The professors’ letter also charges hypocrisy from the Trump administration for touting free speech because it is prosecuting leftist activist Desiree Fairooz, whose “alleged crime is laughing for a few seconds during Sessions’ confirmation hearings last January and then loudly protesting her unlawful arrest.” Quite simply, this is fake news. A jury convicted Fairooz for two misdemeanors related to disorderly conduct, and not only because she laughed, the jury foreman told the Huffington Post (an outlet one assumes these professors are likely to read), but because with other rowdy behavior she “disrupted the session,” which is a crime.
Again, one assumes that not only are these professors likely to read the Huffington Post, they must know that disorderly conduct is grounds for legitimate prosecution, and that all outbursts are not protected free speech. Unless it is their argument that free speech ought to protect all disorderly conduct — an argument that is well out of the line of First Amendment jurisprudence plus one they do not make in their letter — they seem to be content to spread falsehoods in a error-riddled letter they know will get widespread media coverage without so much as spending three minutes on Google factchecking their assertions.
Is this the kind of documentation they teach Georgetown Law students to bring to their legal cases? Is it the kind that holds up their other complaints about Sessions and the Trump administration? It appears so.
Free Speech Does Not Protect Crimes
Politico’s write-up of the speech also failed miserably in attempting to pin hypocrisy on Sessions and the Trump administration. The following paragraphs imply that free speech rights encompass a “right” to publish classified information. That’s actually a crime, because citizens’ right to speak freely does not extend to treason: actions that endanger American lives or national security. There is definitely a debate to be had about whether too many things are improperly classified to avoid public transparency, but this debate should be conducted within the proper legal channels, not vigilantism.
In other areas, Justice has taken a more jaundiced view of free expression. Federal prosecutors and the FBI, responding to public calls from Trump, have dramatically ramped up a campaign to ferret out leakers and crack down on unauthorized disclosures of classified information.
Last month, Sessions and other officials publicly touted the new anti-leak drive, announcing that the department is reviewing Justice Department regulations limiting the use of subpoenas and search warrants to track journalists’ phone calls and emails.
Justice officials notably refused to reissue the Obama administration’s pledge that no reporter would be sent to jail for doing his or her job. ‘They cannot place lives at risk with impunity,’ Sessions said of the media.
Notice the “sent to jail for doing his or her job.” Is it part of a reporters’ job to put American lives at risk?Apparently Politico reporter Josh Gerstein thinks so. Neither most Americans nor our legal system do. Again, there’s legitimate disagreement between what Sessions may think risks American lives and what any given reporter may think, but it’s neither illegitimate nor a contradiction of the First Amendment to punish illegal disclosures of sensitive information.
The Politico framing implies instead that there is no legitimate limit to reporters’ use of such disclosed information. It’s a hidden political judgment masquerading as news reporting.
Deporting Foreigners Doesn’t Conflict with Free Speech
In its further attempts to depict the Trump administration as free-speech hypocrites, the Politico article also strangely implied that deporting noncitizens violates the First Amendment. It should be needless to say, but it is entirely constitutional and no conflict with free speech rights to return foreign citizens to their countries.
To imply otherwise is, quite frankly, so deeply constitutionally illiterate that one wonders how those who advance this idea ever graduated from a so-called American education institution. Yet here’s Politico’s White House reporter since the Obama administration started (maybe he took constitutional law from Barack Obama):
The Justice Department is also defending the Trump administration’s anti-illegal-immigration efforts, even when they’re accused of using threats of deportation to silence critics. Justice lawyers fought litigation brought by an Argentinian woman, Daniela Vargas, a former DACA recipient who claims she was arrested and put into deportation proceedings just after she left a Jackson, Miss., news conference against the administration’s immigration policies.
Vargas is an Argentinian citizen who entered this country illegally as a child. She was a Deferred Action for Child Arrivals recipient, but this legal fig leaf expired months ago. She has no right, legal or otherwise, to remain in this country. It is not “suppression of free speech” to send a foreign citizen who is breaking American laws back to her country. It is in fact upholding the law and protecting the rights of American citizens to define the terms upon which we will accept new neighbors. Americans have exercised our free speech rights to form the laws that Vargas has broken. It is justice as well as protective of free speech to return her to her country.
It’s not just law professors and reporters. Many, many Americans do not know basic truths about the First Amendment. Frighteningly large numbers, for example, believe “hate speech is not free speech” and that government should restrict what Americans are allowed to say in the public square. This is largely due to American institutions’ massive failure to teach and preserve the laws and traditions that nourish our peculiar society. It’s a shame that Sessions’ basic remarks about this fundamental constitutional right are so necessary and unfamiliar to so many, particularly people in prominent positions in media and law, who presume to lecture us despite their ignorance. No wonder Americans don’t trust them.