[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]
FIRST AMENDMENT PROTECTIONS ON PUBLIC COLLEGE AND UNIVERSITY CAMPUSES
=======================================================================
HEARING
before the
SUBCOMMITTEE ON THE CONSTITUTION
AND CIVIL JUSTICE
of the
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
__________
APRIL 4, 2017
__________
Serial No. 115-15
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin JERROLD NADLER, New York
LAMAR SMITH, Texas ZOE LOFGREN, California
STEVE CHABOT, Ohio SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
LOUIE GOHMERT, Texas THEODORE E. DEUTCH, Florida
JIM JORDAN, Ohio LUIS V. GUTIERREZ, Illinois
TED POE, Texas KAREN BASS, California
JASON CHAFFETZ, Utah CEDRIC L. RICHMOND, Louisiana
TOM MARINO, Pennsylvania HAKEEM S. JEFFRIES, New York
TREY GOWDY, South Carolina DAVID CICILLINE, Rhode Island
RAUL LABRADOR, Idaho ERIC SWALWELL, California
BLAKE FARENTHOLD, Texas TED LIEU, California
DOUG COLLINS, Georgia JAMIE RASKIN, Maryland
RON DeSANTIS, Florida PRAMILA JAYAPAL, Washington
KEN BUCK, Colorado BRAD SCHNEIDER, Illinois
JOHN RATCLIFFE, Texas
MARTHA ROBY, Alabama
MATT GAETZ, Florida
MIKE JOHNSON, Louisiana
ANDY BIGGS, Arizona
Shelley Husband, Chief of Staff and General Counsel
Perry Apelbaum, Minority Staff Director and Chief Counsel
Subcommittee on the Constitution and Civil Justice
STEVE KING, Iowa, Chairman
RON DeSANTIS, Florida, Vice-Chairman
TRENT FRANKS, Arizona STEVE COHEN, Tennessee
LOUIE GOHMERT, Texas JAMIE RASKIN, Maryland
TREY GOWDY, South Carolina JERROLD NADLER, New York
C O N T E N T S
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APRIL 4, 2017
OPENING STATEMENTS
Page
The Honorable Steve King, Iowa, Chairman, Subcommittee on the
Constitution and Civil Justice................................. 1
The Honorable Steve Cohen, Tennessee, Ranking Member,
Subcommittee on the Constitution and Civil Justice............. 3
The Honorable Bob Goodlatte, Virginia, Chairman, Committee on the
Judiciary...................................................... 5
The Honorable John Conyers, Jr., Michigan, Ranking Member,
Committee on the Judiciary..................................... 6
WITNESSES
Stanley Kurtz, Senior Fellow, Ethics and Public Policy Center:
Oral Statement............................................... 9
Greg Lukianoff, President and CEO, Foundation for Individual
Rights in Education (FIRE):
Oral Statement............................................... 10
David Hudson, Ombudsman, First Amendment Center:
Oral Statement............................................... 12
Ken Klukowski, Senior Counsel & Director of Strategic Affairs,
First Liberty Institute:
Oral Statement............................................... 13
ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD
Letter submitted by the Alliance Defending Freedom. This material
is available at the Committee and can be accessed on the
committee repository at:
http://docs.house.gov/meetings/JU/JU10/20170404/105828/HHRG-
115-JU10-20170404-SD002.pdf
Letter submitted by the American Legislative Exchange Council
(ALEC). This material is available at the Committee and can be
accessed on the committee repository at:
http://docs.house.gov/meetings/JU/JU10/20170404/105828/HHRG-
115-JU10-20170404-SD002.pdf
Articles Submitted by The Honorable Steve King, Iowa, Chairman,
Subcommittee on the Constitution and Civil Justice. This
material is available at the Committee and can be accessed on
the committee repository at:
http://docs.house.gov/meetings/JU/JU10/20170404/105828/HHRG-
115-JU10-20170404-SD002.pdf
FIRST AMENDMENT PROTECTIONS ON PUBLIC COLLEGE AND UNIVERSITY CAMPUSES
----------
TUESDAY, APRIL 4, 2017
House of Representatives,
Subcommittee on the Constitution
and Civil Justice,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to call, at 11:30 a.m., in
Room 2237, Rayburn House Office Building, Hon. Steve King
[chairman of the subcommittee] presiding.
Present: Representatives King, Goodlatte, Franks, Gohmert,
DeSantis, Cohen, Conyers, Nadler, and Raskin.
Staff Present: John Coleman, Counsel; Jake Glancy, Clerk;
James Park, Minority Chief Counsel; Matthew Morgan, Minority
Professional Staff Member; and Veronica Eligan, Minority
Professional Staff Member.
Mr. King. The Subcommittee on the Constitution and Civil
Justice will come to order.
Without objection, the chair is authorized to declare a
recess of the committee at any time. We welcome everyone to
today's hearing on the First Amendment Protections on Public
College and University Campuses. And I now recognize myself for
my opening statement.
Fears of government overreach, in our Nation's founding
era, necessitated the inclusion of explicit protections of
liberty in the United States Constitution. Among them includes
provisions to protect speech. Indeed, the First Amendment
states that ``Congress shall make no law abridging the freedom
of speech or of the press or of the right of the people
peaceably to assemble.''
The Supreme Court has long held that the First Amendment
applies to States and government entities, including public
colleges and universities. While the First Amendment prohibits
public colleges and universities from restricting free speech,
it generally does not apply to private institutions because the
First Amendment regulates only government conduct.
And while acceptance of Federal funding confers some
obligations on private colleges, such as compliance with
Federal antidiscrimination laws, compliance with the First
Amendment is not among these obligations.
Today, our institutions of high learning have, too often,
turned from being a marketplace of ideas to a dictatorship of
ideas. Students, for example, no longer feel comfortable
expressing ideas. According to a 2015 national survey released
by Yale University's William F. Buckley, Jr. Program, 49
percent of students surveyed often, ``Felt intimidated to share
their ideas, opinions, or beliefs in class because they were
different than their professors and course instructors.''
According to the same survey, half of the students surveyed
often, ``Felt intimidated to share their ideas, opinions, or
beliefs in class because they were different than their
classmates or peers.'' This is, in part, due to the
administrative policies maintained by the institutions. These
administrative policies known as ``speech codes'' are defined
by the Foundation for Institutional Rights in Education, known
as FIRE, F-I-R-E, defined this way: ``Any campus regulation
that punishes, forbids, heavily regulates, or restricts a
substantial amount of protected speech.'' They come in a
variety of forms, including restricting free speech to
designated areas on campus called, ``free speech zones,'' or
banning offensive communication altogether. Not at all what our
Founding Fathers had in mind.
Time and time again, courts have struck down these
administrative policies; nevertheless, we continue to hear that
students are being prevented from engaging in all manner of
expression. For example, Alliance Defending Freedom filed a
lawsuit earlier this year regarding the arrest by campus police
of a student and of Young Americans for Liberty supporters who
were passing out copies of the Constitution on the sidewalk of
Kellogg Community College in Battle Creek, Michigan.
Last week, FIRE warned student newspapers about printing
satire on April Fools' Day. The warning stated in part,
``Disturbingly, colleges have, indeed, launched full-fledged
investigations into newspapers following satirical editions,
threatening the publications with loss of funding and future
oversight by content review boards. Staff members have been
subjected to sensitivity training; editors have been fired,
newspapers themselves confiscated.''
A police state is what that sounds like to me, not the
United States of America, and I happen to remember standing
outside at Charlie Hebdo in Paris, some months ago. I went
there to witness the location of what it would be like, when
they come in with a speech code and slaughter, I believe, 12
people in that place for their satire. In America, we stand up
against that.
These examples in the hundreds, if not thousands, of
stories that continue to arise reflect a dangerous trend. It
was observed in the founding era by Benjamin Franklin, who was,
himself, a great satirist, that, without freedom of thought,
``There can be no such thing as wisdom and no such thing as
public liberty without freedom of speech.'' It is, therefore,
clear that we seek to maintain our form of government. To do
so, we must uphold its fundamental principles.
I think of some other circumstances, and I mentioned what
happened in Paris, but I am also thinking of sitting down with
a young lady named Elizabeth Wolff in Vienna some couple of
years ago, who was on her last appeal and on her way to the
European court because she had been convicted of hate speech
through the Austrian legal system, and all the way up, appealed
to the European court for this, for asking the rhetorical
question, ``If you have sexual relations with a 9-year-old,
does that make you a pedophile?'' It was politically incorrect,
and she faced that criticism.
I think, very recently, of the second most popular
politician in the Netherlands, Mr. Geert Wilders, who was
convicted of hate speech by the courts in his own country that
he nearly became the Prime Minister of. We do not want to see
that in this country, but what the motive is, I think, is
captured here.
First, I would point out Charles Murray has been booed, and
hissed, and some violence on campus, and driven off campus
because they did not like the ideas that they thought he might
speak to, or they did not like what he had written 20-some
years ago.
But I think it was captured to a degree by George Orwell in
his book 1984. He wrote, ``We are not interested in the overt
act; it is the thought that we care about.'' And the thought of
that is, ``If you can control the words, you can control the
thoughts; if you can control the thoughts, you can control the
action.''
So, this anti-hate speech thing and this suppression of our
First Amendment liberties, and this God-given First Amendment
liberties in this country, are being suppressed by political
correctness; they are being suppressed on the campuses across
this land; and it is not just suppressing our freedom of
speech: what it is doing, it is suppressing our freedom of
thought. And a Nation that does not have freedom of thought
cannot cure its problems. That is why we have freedom of
speech.
So, I would yield back the balance of my time and recognize
the ranking member from Tennessee for his opening statement.
Mr. Cohen. Thank you, Mr. Chair. I cannot and will not get
into the pros and cons on this issue. There are both pros and
cons. We are all for free speech, and we all understand,
though, I think, that are some limits to it: ``fire'' in a
theatre; and speech, maybe, where you incite people to gross
people out of a political arena; where there are limits, and
you cause violence, or you threaten people. So, there are
limits, but then we have respect for free speech.
My concern is, while this is important, and no question, it
is an important issue, that the real important issues facing
this country at this time is the First Amendment is freedom of
the press. And there are attacks on the press on a regular
basis today, which I think this subcommittee needs to look
into. It was Richard Nixon that first thought that the press
was the enemy, the enemy of the people, in modern history.
Before that, it was Stalin; that was modern, too, but it
was not American. It was before the Russian-American melding
took place. And what we have seen here is the beginnings of
fascism, in some ways, and part of what you see with fascism,
disdain for the press, controlling mass media; there are other
signs that we see that are scary. That is part of it.
The freedom of the press is so important to being a check
and balance on government and to government that is
uncontrolled. That is overarching the issue that we face today
concerning the First Amendment, is the freedom of the press,
not necessarily this particular limited freedom of speech,
which is, oftentimes, on campuses and, oftentimes, invective
that is hurled at sexual orientation, minorities, and/or people
of minority religions, whether Jews, or Muslims, gays,
transgendered, et cetera.
And there are some reasons to limit that speech because
sometimes it turns to violence, and that is another problem
that we have, as one of the signs of fascism that is exhibited
at the Holocaust Museum is identification of enemies as a
unifying cause, and some of this is what happens there, and we
are seeing it today.
I also must mention, today is the anniversary of Dr. King's
assassination in Memphis 49 years ago. It is also the 50th
anniversary of his speech at Riverside Church, which is the
most powerful speech, I think, that I know in my lifetime.
Reflecting on the three -ism's, militarism, materialism, and
racism, that still are the enemies of this Nation and mankind,
which we have not been able to deal with in an appropriate way.
And Dr. King was not allowed to speak in Memphis, was not
allowed to march in Memphis, and that is part of speech, is the
ability to protest and to march, and the city did not want him
to protest.
Lucius Burch had to go to court to get the Federal court to
allow him to march. And that is why he came to Memphis, for
people's rights and workers' rights, which were not being
respected. Unfortunately, that is where he was assassinated.
So, freedom of speech is important. We have come a long way
with it. I understand, Mr. King, you are having this hearing,
and I will submit into the record my wonderful remarks that
were prepared on this subject that are just outstanding, but
were not the remarks I wanted to deliver today because I
thought, with this anniversary of this speech and the
assignation, it was important to reflect on Dr. King, but so
much more important to reflect on the press and the limits that
we have got in this country right now and the ability to
attempt to paint the press as enemies and fake news and to
discredit the truth.
You can have freedom of the press, but when you have got
powerful people in your country claiming that the press is not
to be believed and is putting out fake news, that is a problem,
and the First Amendment did not envision it. Our Founding
Fathers, who we talk about reverently and how brilliant they
were, even though they did not understand slavery was wrong and
did not understand--or if they did, they did not have the guts
to put it in the Constitution, and they did not understand the
fact that women should have a right to vote and to full
participation, and people without property should have that
right. They did not anticipate an executive who talked about
fake news, remarks without any profession or expert
consultation that sometimes came straight from Russian
television.
So, I would ask the chairman to try to look into having the
freedom of the press, First Amendment hearing, because that is
what faces this country right now and is most urgent.
And with that, I yield back the balance of my time.
Mr. King. The gentleman returns his time, and his unanimous
request to introduce his statement into the record is, hearing
no objection, so ordered, along with, before I recognize the
ranking member, or the full chairman of the committee, I would
ask also unanimous consent to introduce into the record
statements from the American Legislative Exchange Council, the
Alliance for Defending Freedom, and also these two newspaper
articles that I referenced in my opening statement on Mr.
Charles Murray.
Hearing no objection, so ordered.
This information is available at the Committee or on the
Committee repository at: http://docs.house.gov/meetings/JU/
JU10/20170404/105828/HHRG-115-JU10-20170404-SD002.pdf.
I now recognize the chairman of the full committee, Mr.
Goodlatte, for his opening statement.
Chairman Goodlatte. Thank you, Mr. Chairman. Mr. Chairman,
on August 14, 2015, this committee sent a letter to 160 public
colleges and universities that had received a red light rating
from the Foundation for Individual Rights and Education, FIRE.
According to FIRE, a red light institution is one that has at
least one policy that both clearly and substantially restricts
freedom of speech. FIRE defines a ``clear restriction'' as a
policy that, on its face, is a threat to free speech and does
not depend on how the policy is applied. FIRE defines a
``substantial restriction'' as a policy that is broadly
applicable to speech on campus.
Given the positive responses to this letter by many
colleges and universities and the increased attention to this
issue, we have seen a substantial decrease in unconstitutional
policies across the country in the last 2 years. FIRE reported
last year that only 45.8 percent of the public schools surveyed
received a red light rating. This year, the number has dropped
to 33.9 percent. My hope is that the number will soon reach
zero.
Policies that limit free speech limit the expression of
ideas, and no one, no one, can be confident in their own ideas,
unless those ideas were constantly tested through exposure to
the widest variety of opposing arguments. This is especially
crucial in a democracy.
Founders of our country understood this clearly; George
Washington and Thomas Jefferson wrote of the importance of
knowledge in a democracy. Washington wrote, ``Knowledge is, in
every country, the surest basis of public happiness. In
proportion, as a structure of a government gives force to
public opinion, it is essential that public opinion should be
enlightened.''
And as Thomas Jefferson reminded us, ``Knowledge is power.
If a Nation expects to be ignorant and free in a state of
civilization, it expects what never was and never will be.''
James Madison wrote of the inherent connection between
learning and liberty, writing, ``What spectacle can be more
edifying or more seasonable than that of liberty and learning,
each leaning on the other for their mutual and sure support? A
popular government without popular information or the means of
acquiring it is but a prologue to a farce, or a tragedy, or
perhaps both. The people who mean to be their own governors
must arm themselves with the power which knowledge gives.''
John Adams wrote specifically of the young that, ``It
should be your care, therefore, and mine to elevate the minds
of our children and exalt their courage. If we suffer their
minds to grovel and creep in infancy, they will grovel all
their lives.''
I thank Chairman King for holding this hearing, and I thank
our witnesses for coming today. I look forward to your
testimony and your ideas about how we can continue to foster
the free expression of ideas on college campuses.
Mr. King. The gentlemen from Virginia has returned his
time, and the chair would now recognize the ranking member of
the full committee, Mr. Conyers, for his opening statement.
Mr. Conyers. Thank you, Chairman King. I am happy to
welcome the witnesses. I am going to yield to Jamie Raskin of
Maryland as soon as I make these two sentences.
While I do not pretend that we can fully resolve the long-
standing debate over hate speech and the First Amendment on
public campuses during the course of this hearing, and while I
acknowledge some tension between free speech and equality
interest, I hope we can have a productive discussion about the
proper balance between protecting free speech and ensuring
equal education opportunities for all students. So, I will be
looking forward to the discussion that will follow, and I yield
to the distinguished gentleman from Maryland, Mr. Raskin.
Mr. Raskin. Mr. Conyers, thank you very much for your
courtesy and your kindness, as I have another meeting I am
going to have to get to in a moment. Delighted to be here at
this very interesting panel with such great witnesses.
I suppose I should start by remarking that it is very easy
for the left to denounce right-wing political correctness on
campus, and it is very easy for the right to denounce left-wing
political correctness on campus. The issue is whether all of us
can stand up for all free speech, including the speech we
disagree with.
You know, I used to tell my students that free speech is
like an apple, and everybody wants to just take one bite out of
it. ``I am okay with free speech except for sexist speech;
except for racist speech; except for extreme, left-winged
speech; except for extreme, right-winged speech.'' Pretty soon,
everybody has taken a bite, and there is nothing left to the
apple. So, we have got to accept the whole apple if we want to
have free speech for real in the country.
Now, there are certain things that I imagine that would
unify everybody on the panel and everybody on this side of the
panel, as well, which is free speech zones are an anathema. In
America, under the First Amendment, the whole campus is a free
speech zone. And, to the extent that you depart from free
speech, that should be the exception and not the rule. So,
campuses that rope off a little area on the other side of the
soccer fields and say, ``That is the area where you can
exercise your free speech,'' are really in violation of the
First Amendment, and I think we should all be able to agree to
that.
It gets more complicated, of course, when you get into the
question of, what goes on in the classroom. What goes on with
people's scholarship and so on? And I think we need a little
bit of historical context, which I would be happy to have some
of the witnesses elaborate on. Seems clear to me, when you look
at it historically, that most of the speech suppression that we
saw in the 1950s and 1960s and 1970s was of a conservative or
right-wing nature against left-wing political speech.
In the 1950s, of course, it was McCarthyism, and there were
lots of professors who lost their jobs because they did not
conform to the standard academic or electoral dogmas of the
time. William F. Buckley's book, ``God and Man at Yale,'' was
an important moment in the history of orthodox political
correctness on campus. In that book, which I recommend to
anybody who has not read it, Buckley comes out very strongly
for indoctrination on campus in Christianity and individualism
and attacks views that he views as dissenting from that and
saying that they do not belong on campus.
In the 1960s and 1970s, of course, there were tens of
thousands of antiwar protestors, civil rights protestors, who
were suspended or expelled or, otherwise, driven off campus for
their views, or perhaps, their views interlace with different
actions that they took in terms of sit-in protests or whatever
it might be.
Today, it is not right-wing political correctness that is
seen as a big threat on campus; we hear a lot more about left-
wing political correctness, and of course, we have not seen
anything like the mass expulsion suspensions, firings that took
place in the 1950s, 1960s, and 1970s, but, undoubtedly, there
seems to be a rise in kind of puritanical language protocols
that are enforced in the classroom or on campus.
People are made to feel uncomfortable if they arrive at
campus not knowing the correct gender pronouns to use in this
case or that. And, you know, all of that, I think, is
problematic, but we need to put it in the overall historical
context of what really has gone on.
So, just a couple of points that I would welcome any
reaction to: one is about booing and heckling, which Mr. King
mentioned. And I think I agree with his point about this.
Booing and heckling is a venerated American art. If you go back
and read the transcripts to the Lincoln-Douglas debates, there
was lots of heckling that took place, but it was a kind of
interjection, and then there would be an answer from the
speaker, and that was all right. But the booing and heckling
that drowns somebody out is just stupid and is, I think,
outside of our free speech tradition and should not be
considered to be part of the general First Amendment norm.
The basic rule in the academic context was set forth by the
Supreme Court in Hazelwood v. Kuhlmeier, which said, ``Students
have the free speech right to wear a black armband,'' as Mary
Beth Tinker did in protest to the Vietnam War or to speak out,
as long as they are not materially interrupting the educational
mission and making it impossible for other people to learn. And
I think that is the most critical point here.
Obviously, kids have got to learn to accept other people
having a point of view that is antithetical to their own. That
is part of what it means to live in a liberal society. At the
same time, we do not want face-to-face vilification and
harassment of people, such that you really do create an
adverse, hostile learning environment. And I think that is the
difficult line to draw and that we would welcome the views of
the committee about that.
And then, finally, as to the question of academic freedom,
it seems to me that professors and teachers should have a First
Amendment right to take the views that they want, to have the
positions that they want. On the other hand, the schools and
the universities do have the power, through the tenure process,
to decide whether someone is actually progressing and
succeeding according to the rigorous academic standards in a
particular field.
So, if somebody on their own time, for example, wants to,
you know, say, deny that the Holocaust happened, but they are a
professor of mathematics, and it has nothing to do with their
academic teaching, that is obviously okay. If their whole
academic project is to show that the Holocaust did not happen,
and it is found not to live up to the rigors and the standards
of academic success in that field, I think it is perfectly fine
to say, ``That person does not get tenure.''
And so, I think that is another line that we need to draw,
and that is the right for people to have their private
political views, but not to say, just because I take some
extremist stance, that somehow that qualifies me to tenure.
Somebody can deny the existence of climate change off campus,
again, if they are a professor of history, but if they are in a
scientific field and they think that, just by denying the
existence of climate change, they should get tenured, that
strikes me as wrong, unless they are actually able to do, you
know, the scientific evidence that would lead to that
conclusion.
I yield back, and thank you very much.
Mr. Conyers. I yield back, Mr. Chairman.
Mr. King. His time has expired 2 minutes and 54 seconds
ago. Let the record reflect the chair resisted his temptation
to limit the gentleman's freedom of speech.
Mr. Raskin. Forgive me.
Mr. King. And now I would, without objection, other
members' opening statements will be made a part of the record.
Mr. King. And let me now introduce our witnesses.
Our first witness is Mr. Stanley Kurtz, a senior fellow at
the Ethics and Public Policy Center, and our second is Mr. Greg
Lukianoff, who is the president and CEO of the Foundation for
Individual Rights in Education, FIRE. And our third witness is
Mr. David Hudson; he is an ombudsman for the Newseum
Institute's First Amendment Center, and our fourth witness is
Ken Klukowski, a senior counsel and the director of strategic
affairs at the First Liberty Institute.
Excellent credentials, all, gentlemen, and I would ask each
of the witnesses' written statements will be entered into the
record in their entirety, and I ask you to summarize your
statements in 5 minutes or less. And hopefully, you can stay
within that timeframe. There is a light in front of you that I
think you are all familiar with by now.
And before I recognize the witnesses, we ask that you stand
and be sworn in. Stand and raise your right hand, please.
Gentlemen, do you swear that the testimony you are about to
give before this committee is the truth, the whole truth, and
nothing but the truth, so help you God?
You may be seated.
And thank you, and let the record reflect that all the
witnesses responded in the affirmative.
And so, I now recognize our first witness, Mr. Kurtz, for
your testimony. Mr. Kurtz.
Can you turn on your microphone, please?
STATEMENTS OF STANLEY KURTZ, SENIOR FELLOW, ETHICS AND PUBLIC
POLICY CENTER; GREG LUKIANOFF, PRESIDENT AND CEO, FOUNDATION
FOR INDIVIDUAL RIGHTS IN EDUCATION (FIRE); DAVID HUDSON,
OMBUDSMAN, FIRST AMENDMENT CENTER; AND KEN KLUKOWSKI, SENIOR
COUNSEL & DIRECTOR OF STRATEGIC AFFAIRS, FIRST LIBERTY
INSTITUTION.
STATEMENT OF STANLEY KURTZ
Mr. Kurtz. Okay, how is it possible that the condition of
free speech on our college campuses should be so precarious,
despite broad, public support for the First Amendment? I
believe that a critically important part of the answer to this
question lies in the failure of administrators to discipline
students who silence or disrupt visiting speakers or their
fellow students.
However problematic safe spaces and trigger warnings may
be, however important it is to overturn campus speech codes and
so-called free speech zones, so long as students are permitted
to silence the speech of visiting speakers or their fellow
students without disciplinary consequences, the growing threat
to campus free speech will never be overcome.
The destructive effects of speaker shout-downs, meeting
takeovers or acts, like the destruction of a run of
conservative student newspapers, go far beyond their
statistical occurrence. A university may host numerous visiting
speakers who conform to campus orthodoxies without incident.
Yet, even a single case in which a visiting speaker who clashes
with campus orthodoxies is shouted down sends a powerful signal
to students and faculty, who would also challenge those
orthodoxies, to keep silent.
Each silencing incident, moreover, makes it far less likely
that speakers who depart from campus orthodoxies will be
invited in the first place or will accept an invitation when
offered. Each act of silencing that escapes discipline also
encourages students to believe that they can continue to attack
and disrupt the speech of others. In short, the failure to
discipline direct attacks on the free expression of others
creates a kind of low-grade anarchy on campus, a world in which
intimidation rules, and violence can never be far behind.
All of this means that there is no substitute for well-
enforced policies of administrative discipline for incidents in
which protestors go beyond legitimate bounds and silence the
expression of others. Sadly, however, administrators, in our
day, are extremely reluctant to impose discipline on students
who interfere with the free speech rights of others, despite
the fact that public colleges and universities are obligated to
protect the First Amendment rights of their students.
Administrators, all too often, fail to enforce those
rights. This means that freedom of speech will never be secure
at our public colleges and universities until counter-pressures
are brought to bear upon administrators who remain reluctant to
discipline those who violate the free speech rights of others.
The key potential sources of such counter-pressures are
public scrutiny, university system boards of trustees, State
legislatures, and the Federal Congress. Along with James Manley
and Jonathan Butcher of Arizona's Goldwater Institute, I
recently co-authored a report that offers and explains model
State-level legislation designed to protect First Amendment
speech rights on America's public college and university
campuses. That report is published by the Goldwater Institute.
Although there are several legislative proposals in various
States designed to restore and protect campus free speech, only
the Goldwater Proposal systematically addresses the central
problem of discipline for those who interfere with the
expressive rights of others. While the Goldwater Proposal
offers the best legislative solution at the State level, there
is much that Congress could do to safeguard freedom of speech
on America's campuses.
I have outlined a possible Federal approach to campus free
speech in some detail, in a piece entitled Federal Funding and
Campus Free Speech: A Proposal. For example, Congress has the
option of requiring public colleges and universities, and even
private, secular colleges and universities, potentially,
seeking to qualify for Federal student loans under title IV of
the Higher Education Act, to file a pledge with the Department
of Education to uphold student speech and association rights.
So, for example, colleges wishing to qualify for student
aid could be required to agree to establish, maintain, and
utilize a system of sanctions to discipline students who
interfere with the expressive rights of others.
My written testimony explains both the State-level and
Federal legislative plans in greater detail. Thank you.
Mr. King. Thank you, Mr. Kurtz.
Mr. Lukianoff.
STATEMENT OF GREG LUKIANOFF
Mr. Lukianoff. Chairman King, Vice Chairman DeSantis,
Ranking Member Cohen, and distinguished members of the
subcommittee, my organization, FIRE, was founded in 1999 to
defend free speech, academic freedom, and due process on
America's college campuses. FIRE is a principled, non-partisan
non-profit, and this is reflected in both our staff and the
cases we take. For example, our litigation has recently
defended the right of students to protest animal cruelty and
advocate for pot legalization, Second Amendment rights, and
more.
Just last week, we filed a lawsuit against Pierce College
in California, which told a student that, if he wanted to
engage in free speech activities, he had to limit himself to a
tiny free speech zone. The zone comprised only 0.003 percent of
the campus. Put another way, if Pierce College were the size of
a tennis court, free speech would be restricted to an area the
size of a cell phone.
Since our founding, FIRE has fought free speech zones,
efforts by administrators to quarantine freedom of speech to
tiny areas, and we have defeated many of them, including Texas
Tech's infamous Free Speech Gazebo, the University of Hawaii at
Hilo's Free Speech Swamp, and this sad, little one at Blinn
College in Texas, which was divided into even smaller halves by
a bulletin board.
Many institutions even required advance permission for
students to speak inside of the zones. For example, the
University of Cincinnati asked for 10 working days' notice.
Other speech codes comprise broad and vague restrictions on
expression that practically anyone would be found guilty of
violating. Take the University of West Alabama's prohibition on
harsh text messages or emails, which is in force, currently, or
both the University of Connecticut and Drexel University's now-
defunct prohibitions on ``inappropriately-directed laughter.''
While many speech codes are absurd, fighting them, even at
colleges bound by the First Amendment, has required more than
60 lawsuits since 1989, and all of the 56 suits that have
concluded have resulted in either a speech-protective court
decision or the repeal of the speech code. The money and time
public campuses waste defending these manifestly
unconstitutional codes is a national scandal. Campuses should
not be forced to respect students' First Amendment rights.
But there is good news. Since I last spoke with the
committee in 2015, and thanks in no small part to a letter sent
by Chairman Goodlatte to 160 colleges and universities across
the country, the number of speech codes on campus has decreased
significantly.
FIRE uses a simple red, yellow, and green traffic light
system to rate colleges' written policies on expression. When
we first published our findings in 2007, 75 percent of colleges
maintained red light, or laughably unconstitutional, speech
codes.
In 2015, after years of fighting both inside and outside
court, the percentage of red light codes had dropped to around
55 percent. And since Chairman Goodlatte's letter was sent,
that number has now dropped to below 35 percent. At the same
time, the number of green light schools, colleges whose codes
do not threaten protected speech, has nearly doubled.
While there is no need to be fatalistic about speech codes,
much work still has to be done, particularly as the Department
of Education has championed a definition of sexual harassment
that is so vague and broad that it seriously threatens campus
speech. The Department of Education hailed this as a blueprint
for all universities to follow, but it specifically eliminated
the requirement that speech be both subjectively and
objectively offensive, and it also reduced the definition of
harassment to simply any unwelcome verbal conduct, also known
as speech, of a sexual nature.
To give you an idea of how broad such a code is, Professor
Teresa Buchanan was fired from her job at Louisiana State
University for violating a policy just like the blueprint,
allegedly because she explained, in realistic detail, the way
some parents talk to some teachers. She is currently suing
Louisiana State University, with FIRE's help, and we believe
that any judge looking at the Department of Education's
blueprint definition of harassment would have to find it
glaringly unconstitutional.
The House Judiciary Committee has already been a great ally
in the fight for free speech on campus. Even in these polarized
times, we hope that free speech on campus can be an issue that
unites all parties. In my written testimony, I recommend four
additional approaches: warn public campuses in each State that
speech codes are unconstitutional and can unnecessarily cost
the State money; support the CAFE Act to put a legislative end
to free speech zones; codify the Supreme Court's definition of
student-on-student harassment set forth in Davis v. Monroe
County Board of Education, which I think would address
Congressman Conyers's concerns; and pass a Federal New Voices
Act to protect student journalists, which should please
Representative Cohen.
So, thank you so much for your time.
Mr. King. The gentleman returns his time, and we appreciate
his testimony. The chair would now recognize Mr. Hudson for his
testimony.
Mr. Hudson.
STATEMENT OF DAVID HUDSON
Mr. Hudson. Mr. Chairman, distinguished members of the
subcommittee, it is a great honor to speak to you about First
Amendment protections on public university and college
campuses. I first want to discuss four animating principles of
First Amendment jurisprudence that should govern any
consideration of free speech issues. I then want to discuss the
four issues that I have covered in my written testimony.
The first animating principle is the marketplace of ideas.
Back in 1919, Justice Oliver Wendell Holmes, in his great
dissent in Abrams v. United States, wrote that, ``But when time
has upset many fighting face, men have come to realize and
believe in the very foundations of their own conduct that the
ultimate good desired is better reached through free trade of
ideas, that the best test of truth is the power of the thought
to get itself accepted into the competition of the market.''
United States Supreme Court in Keyishian v. Board of Regents in
1967 ruled that the classroom was peculiarly the quintessential
marketplace of ideas.
Any principles or legislation must consider the fact that
public universities must maintain a commitment to the
marketplace of ideas. I realize that critical race theorists
and others question the marketplace of ideas, saying that there
is not equal access to the market. And while this may be true
in some circumstances, where can we have a true marketplace of
ideas but at a public university campus? We must deal with
competing viewpoints.
The second animating principle is the counter-speech
doctrine. It was authored by Justice Louis Brandeis in his
concurring opinion in Whitney v. California in 1927. ``If there
be time to expose, through discussion, the falsehood and
fallacies, to avert the evil by processes of education, the
remedy to be applied is more speech, not enforced silence.'' We
must counter negative, harmful speech with positive speech.
Public university officials must take an approach where they do
not silence offensive, controversial speakers. We allow people
to protest peacefully, but not engage in substantial
disruption.
The third animating principle is content discrimination and
viewpoint discrimination. I like to tell my students, my First
Amendment students from the National School of Law in my alma
mater, Vanderbilt Law School, about the famous quote from
Justice Thurgood Marshall, who wrote in 1972, ``But above all
else, the First Amendment means that the government may not
restrict speech because of its message, its ideas, its subject
matter, or its content.''
Justice Antonin Scalia wrote that, ``Content-based
restrictions on speech are presumptively unconstitutional.''
And Anthony Kennedy said that viewpoint discrimination is, ``An
egregious form of content discrimination.'' When public
university officials allow some groups to distribute literature
and not allow other groups, that can be content discrimination,
and even worse, it can be viewpoint discrimination.
The fourth animating principle is that we, in this society,
must protect speech that we do not like. Chief Justice John G.
Roberts, Jr. said, ``Speech is powerful. It can stir people to
action, bring them both tears of joy and sorrow, and inflict
great pain. But the First Amendment requires that we do not
punish the speaker for inflicting pain. As a Nation, we have
chosen a different course; that is, to protect even hurtful
speech on public issues so as not to stifle public debate.''
The four issues that I cover in my written testimony: one,
we need to be very careful about allowing the infiltration of
legal standards from K through 12 decisions that negatively
impact college and university employees, professors, and
students. The standard from Hazelwood that Senator Raskin
mentioned, reasonably related to legitimate pedagogical
concerns, is breathtakingly broad. We are seeing this now in
the censorship of public officials and public school students
who engage in online speech.
The second principle I deal with is Garcetti v. Ceballos,
547 U.S. 41. On page 421, the U.S. Supreme Court wrote, ``When
public employees make statements pursuant to their official job
duties, they have no First Amendment protection.'' Thank you
very much.
Mr. King. The gentleman's time has expired, and we
appreciate his testimony. I now recognize Mr. Klukowski for
your testimony.
Mr. Klukowski. Thank you.
STATEMENT OF KEN KLUKOWSKI
Mr. Klukowski. Thank you, Mr. Chairman and members of the
committee. The Framers considered the Constitution's First
Amendment necessary to enlightened self-government, the oxygen
by which citizens can be informed to think through the issues
of the day and hold accountable those in power. Public
universities are State actors bound by the Free Speech Clause.
Because free speech is a fundamental right, government
restrictions on content are subject to strict scrutiny where
government must show the restriction narrowly tailored to
achieve a compelling interest. But often, we see viewpoint
discrimination. For example, saying you cannot discuss abortion
is content, but saying you can say pro-choice comments but not
pro-life, that is viewpoint.
We, at First Liberty Institute, have had to deal with this
issue. For example, Audrey Jarvis was a 19-year-old student at
Sonoma State University in 2013 and a devout Catholic. She was
working for the associated student production organization at a
student fair. During that event, her supervisor instructed her
to remove the cross necklace that she was wearing because it
might offend others.
Also in 2013, Ryan Rotela's professor at a communications
class in Florida Atlantic University instructed the students to
write the name Jesus on a piece of paper, put it on the ground,
and stomp on it. Ryan is a devout Christian who was not
comfortable stepping on his savior's name. He was suspended
from the class.
Purdue University accepted a financial gift from a family
who asked them to choose words for a plaque at the engineering
school. When they chose, ``Seeking to better the world through
understanding God's physical laws,'' Purdue called it an
unconstitutional endorsement of religion, even though the
Supreme Court in 2014 rejected this endorsement concept as a
faulty misinterpretation of the Constitution's First Amendment.
The reality is that viewpoint discrimination from private
speakers in protected speech categorically violates the First
Amendment. This is true in all forms of public forum, the
doctrine governing which is discussed in my written testimony.
More places on college campuses, most, are either traditional,
designated, or limited public forum, where students enjoy broad
free speech protections, and First Liberty Institute, as the
largest law firm in the U.S. exclusively dedicated to
protecting religious liberty for all Americans, represents all
of these students and donors entirely free of charge. We also
represent students in public grade schools dealing with similar
issues. All these infringements on speech are unconstitutional.
While First Liberty prevailed in all those cases, hostility is
increasing against certain viewpoints and beliefs on campuses.
A university is supposed to facilitate the free exchange of
ideas to advance our understanding of the world. Students are
better off when they are exposed to ideas or viewpoints they do
not share, and learning to respect speakers with whom a student
disagrees is vitally important to advancing a diverse and
tolerant culture, and the First Amendment commands public
universities to respect these principles.
Yet now, we see a culture of free speech zones, islands
surrounded by an ocean of university facilities and locations
where safe spaces, micro-aggression, and trigger are code words
justifying censorship. Multi-syllabic terms are invented to
whitewash the suppression of speech by covering them with a
veneer of pseudo-intellectualism. This intolerance for certain
ideas is found across many subjects, though with one disturbing
common denominator: political speech supporting President Trump
is disfavored.
Immigration speech on securing our borders is disfavored.
Speech supporting America's greatest ally in the Middle East,
the Nation of Israel, is disfavored, especially speech on
Jerusalem or Israel maintaining defensible borders. There is
even a boycott movement actively being promoted against Israel
on Americans' campuses today in an attempt to delegitimize
Israel.
America's Christian community is a great friend to Israel.
And speaking of Christians, no beliefs are under greater
assault on secular campuses. I have referred to orthodox
Christian beliefs in whatever tradition, carrying out the great
commission to share the gospel of Jesus Christ, speaking
biblical truths on the issue of the day, and believing the
Bible to be or contain the word of God. Opposition to these
views often forbids even mild expressions of belief. The
Capitol's painting on the baptism of Pocahontas, the portrait
of Jesus hanging outside the Great Hall in the Justice
Department, these works of art would not be welcome on many
modern campuses.
The common denominator here is that such conservative
speech does not comport with the prevailing ideology of some
campuses. People of faith, whether evangelical, Catholic,
Jewish, or other faith have a civil right under the First
Amendment to share their faith and viewpoint on public
campuses, and a university abridging those violates their civil
rights and could be investigated by the Justice Department. My
additional remarks are included, in addition to other topics,
that this committee could explore in my written testimony.
Thank you again.
Mr. King. The chair thanks the witnesses for your
testimony, and I will now recognize myself for my 5 minutes'
questioning period.
And I would turn first to Mr. Kurtz, whom I happen to know
to be a historian, and I would ask you if you are aware of what
our Founding Fathers thought about the limitations of free
speech as they watched the Greek city-states and how they
handled free speech there? Have you had any study on that
topic?
Mr. Kurtz. The Founders, I think, were concerned that the
classical world as a whole, both the Greek city-states and the
Romans, had a kind of democracy and yet lost it. And this
example was always in their mind. There was a question, when
the Founders began, as to whether a viable democracy was even
possible. So yes, they were very concerned about whether
freedom was sustainable, and the Constitution was a kind of
structural attempt to solve that problem, and of course, the
Bill of Rights as well.
Mr. King. Thank you, Mr. Kurtz. Have you taken a look on
balances? Are there any countries in the world that protect
freedom of speech the way we do here in the United States?
Mr. Kurtz. No, I really do not think there are any
comparable examples, and the examples you gave at the beginning
of Europe are very telling. And I would note that the attack on
freedom of speech on campuses is often framed in terms of
civility, but in my view, freedom of speech is the ultimate act
of civility. It is an exercise in the teaching of civility.
I go back to Justice Oliver Wendell Holmes, who said the
key test of free speech is not tolerating ideas that agree with
you, but freedom for the thought that you hate. So, think about
that. Free speech means that we have to tolerate something that
we hate. We have to hold ourselves back from attacking them,
physically attacking them, or trying to snuff them out.
Actually, we call it freedom, and it is, but freedom is
inherently an exercise in self-restraint, and I believe that it
is precisely because of America's unique tradition of liberty
that we have had greater civil peace, on the whole, than
Europe, where they do not have those protections. The Civil War
is the exception that proves the rule. That happened because we
violated freedom in a very important case. But on the whole,
freedom of speech actually produces civility, and this is what
I think people on campus need to learn.
Mr. King. Thank you, Mr. Kurtz, and I point out from a
historical perspective, our Founding Fathers were very well
aware that in the Greek city-states, if a demagogue became too
effective with his freedom of speech, he was banished from the
city-state for 7 years.
Presumably, he got over it, and he could come back again.
The Founding Fathers did not opt into anything of that nature.
They decided, instead, let's have this competition of freedom
of speech. Let the ideas compete. Let the good ideas surface,
and the bad ideas would be treated with the level of disrespect
that they deserved. I would turn to Mr. Klukowski and ask, on
college campuses, what is your recommendation? The private
schools, should they be allowed to focus, as much as they
choose, on their particular religions, whether it is
Christianity or Judaism, or any other religious group?
Mr. Klukowski. Two recommendations, Mr. Chairman. First of
all, regarding private institutions, Congress does have
authority under the Spending Clause to condition eligibility
for Federal funding on private universities respecting speech
in such a manner that, if they were to suppress speech in a
way, that would be a civil rights violation, actionable by the
Justice Department.
If done by a public university, that could be a trigger, to
use the word appropriately, for reducing or eliminating certain
types of Federal funding. The amount of Federal funds that Ivy
League universities are now receiving is so astounding that, in
just a few years, they would be in a financial position where
all of their students could attend for free if they would allow
that to go. So, I believe that's something that would really
get their attention.
The second is, and this is very disturbing, the increasing
difficulty that individuals and groups have at getting quality
legal representation. There are major corporations who are
severing their ties with law firms that are taking on religious
liberty and conservative speech issues, whether paid or pro
bono, and I believe the committee could also look at how to
ensure that access to the courthouse remains open for these
groups.
Mr. King. Thank you, Mr. Klukowski, but you would not
assert, then, that if you had a robust freedom of speech, even
in promoting a particular religion on a private campus, as any
kind of constitutional violation, it just might be to the
discretion of Congress to limit their funding?
Mr. Klukowski. Well, and in fact, for faith-based
organizations, such as Liberty University, where I once taught
on faculty, or Notre Dame, where I received my undergraduate
degree, or Brigham Young, where I have been a guest lecturer,
at any religious-mission, private university, they enjoy
additional protections, not just free speech, but also free
exercise and even establishment. And so, I believe those faith-
based institutions could enjoy protections.
Mr. King. Thank you, Mr. Klukowski. And I want to quickly
ask Mr. Hudson, with regard to this topic we have in front of
us, is the truth a factor at all, or are we free to speak
freely, true or not, and is that even a judgment that should
enter into this discussion, Mr. Hudson?
Mr. Hudson. Well, I think I would go back to John Milton in
Areopagitica. ``Let truth and falsehood grapple; who ever knew
truth put to the worst in a free and open encounter?'' We hope
that true ideas will trump negative ideas, and certainly truth
is important if there is an allegation of defamation, because
truth and the substantial truth defense is important if
somebody is accused of defamation. But we want to have
competing ideas, because it is through competing ideas that we,
as a society, come to recognize what we consider to be the
greater truth at that time.
Mr. King. Agreed, Mr. Hudson. Thanks for your responses,
and the chair now recognizes the gentleman from Tennessee, the
ranking member, Mr. Cohen.
Mr. Cohen. Thank you. Are we on here? I guess we are. Thank
the panelists. Very distinguished group of panelists, and
wonderful testimony. Mr. Hudson, I could not even see your
teleprompter. You did such a good job.
I am just amazed at your memory of the aces, the verbiage,
and the citations. Credit to Vanderbilt.
Dynamite, dynamite, when Vandy starts to fight.
Mr. Hudson. I agree.
Mr. Cohen. Congress has a program where they encourage
students to submit artwork to be chosen from each congressional
district to be displayed in a hallway between Capitol and House
office buildings. One of those paintings, submitted by Lacy
Clay of Missouri, was by a student in his district that showed
police and citizens in Ferguson, Missouri, and was a painting
that did not show, necessarily, policemen in the best light.
Quite a few people objected to it, and it was taken off the
halls, even though chosen by Representative Clay, and is not
hanging any longer.
I would like to know what each of you think about that
practice of the Congress taking down a painting chosen by a
member without any previous policy concerning content and
censoring the publication. Mr. Kurtz, would you go first?
Mr. Kurtz. As you describe it, Congressman Cohen, I would
not have wanted to take down the painting. But while I do not
recall the details, as I understand it, part of that dispute
had something to do with rules. Apparently, there were some
sort of rules about what sort of painting could be up there to
begin with, and there was an allegation that the painting
violated the fundamental rules of the contest.
I really cannot comment, finally, on the controversy,
because I would have to study that aspect. As you present it,
it sounds like the painting should have been left up, but I
have the proviso that there are further elements of the
controversy that need to be studied regarding those rules, and
perhaps other things, as well, before I can give a final
opinion.
Mr. Cohen. The rules had never been enforced before, and
the rules were fairly vague about political controversies. And
that is all in the mind of the beholder, I guess. Mr., is it,
Lukianoff?
Mr. Lukianoff. Lukianoff.
Mr. Cohen. I am sorry.
Mr. Lukianoff. FIRE restricts its work to issues
surrounding higher education, and it is actually a very deep
field. So we do not have a particular opinion on that. However,
we do work routinely with the great National Coalition Against
Censorship, and I know that they wrote a letter objecting to
this as a form of viewpoint discrimination that was, if not
unconstitutional, inappropriate, and we definitely defer to the
NCAC on that.
Mr. Cohen. Thank you. Mr. Hudson.
Mr. Hudson. It sounds like content discrimination, perhaps
even viewpoint discrimination. If I was representing the
student, I would try to analogize to the Barbara Papish case,
which I believe was slide one of Mr. Lukianoff's presentation,
in August of 2015, where a graduate student wrote an article
that depicted the police very negatively, with a negative
action toward the Statue of Liberty. I understand there may be
different rules, as Mr. Kurtz has said, and so I would have to
study that further, but on first glance, it does sound like
content discrimination.
Mr. Cohen. What would the rules have to be to be
constitutionally valid? I mean, you just cannot have a rule,
``There shall be no painting that pictures the police in a bad
perspective.'' How would you have a rule that could limit
content and be specific enough to give notice to the artist?
Mr. Hudson. That is a very good question. I think it would
have to be extremely narrowly-drafted. I think you would have
to have notice, and I think you would have to have no problem
of selective enforcement. You may be able to argue the
government speech doctrine, if you are on the government side,
and argue that it has not been opened up as a true public forum
or limited public forum. But again, I tend to take the First
Amendment side of it. I think it sounds like content
discrimination to me.
Mr. Cohen. Thank you, sir. Mr. Klukowski.
Mr. Klukowski. Congressman, I think there is a two-part way
to answer that, and I, too, would have to study it further.
First, as my colleague just said, the first question is whether
this is, in fact, private speech, and whether this is any type
of public forum. If it is a limited public forum, content-based
restrictions are permissible to keep the forum consistent with
the purposes for which the public has access to it. If it is a
non-public forum, any reasonable restrictions would be
permitted. Now, if it is viewpoint-based instead of content-
based, then it would be unconstitutional under either of those.
However, there is an entire line of Supreme Court free
speech jurisprudence regarding government speech versus private
speech. The protections we are referring to are for private
speakers engaging in protected speech. If this is, in fact, the
government subsidizing or providing a platform to associate
itself with speech, the government does not need to associate
itself with speech with which it disagrees. And I think the
question there would be whether or not that depiction would
then be associated as the expression of Congress.
Mr. Cohen. Thank you. I appreciate each of you, and I think
you have shown well that this issue and the issue of the First
Amendment and art and censorship is much like health care. It
is complicated.
Mr. King. The gentleman's time has expired, and the chair
would now recognize the vice chairman of this subcommittee, Mr.
DeSantis of Florida. Mr. DeSantis.
Mr. DeSantis. Thank you, Mr. Chairman. Mr. Lukianoff, part
of the things that I have noticed about this debate is that
there seems to be a declining support for First Amendment
values amongst younger people. And so, we deal with the issues
that you guys ably deal with because we want free expression on
the campus; that is just a good thing, but it seems to me the
result of some of these codes and restrictions has been, that
is, kind of what people are now socialized to, or maybe they
are even advocating it. So, can you speak to the issue of the
extent to which younger people have really walked away from
core First Amendment values and are actually supportive of
having a lot of these restrictions?
Mr. Lukianoff. Absolutely. And that is the thing that keeps
me up at night right now. So, I have been doing this since
2001, and for the overwhelming majority of my career, the
people that were on the, in my opinion, wrong side of freedom
of speech were campus administrators. Sometimes faculty were
pro-speech code. The single best constituency on campuses were
always the students themselves. Often poor and minority
students, often non-traditional age students have been some of
our best allies.
I do not know precisely what happened, but somewhere around
2013, 2014, we started seeing a shift to students demanding
freedom of speech for themselves, understanding that it was
really important for them to have that, to what I dub freedom
from speech that they dislike. And this is the most distressing
cultural change I have seen in my career, but that means what
we have to do is think about ways of getting not just the law,
not just the First Amendment in front of them, but we have to
get the philosophy of freedom of speech in front of more
students.
I think it is crucial for students to know, for example,
the incredibly important role that freedom of speech played in
the Gay Rights Movement, in the Civil Rights Movement. In all
American history, when it was recognized it has been a force
for innovation and progress, but I think students are primarily
taught that freedom of speech is the argument of the bully, the
bigot, and the robber baron, and that is completely
inappropriate.
So, I am constantly thinking of ways to get in front of
people at a younger age. I was even toying with the idea of
writing a children's book about freedom of speech, but we have
to be creative in teaching this as a profound philosophy that
helps protect deep pluralism in our society.
Mr. DeSantis. Mr. Kurtz, I think you get at this, a little
bit, but, I mean, if you look at the Yale situation that
happened. I mean, you have the Woodward Report of Standards,
clearly, they had walked very far away from that.
But, as you watch those videos, it seemed to me that was
really lead by the students, one of these really radical
students, and that the administration caved rather than standup
for the values of the Woodward Report. I think that may track
with your view about, you know, they are not really holding
some of these people accountable. So, can you address that?
Mr. Kurtz. Yes, Congressman DeSantis, as I emphasized in my
remarks, I think the administrators caving is very much at the
heart of the problem, although it is absolutely true that we
have a generational difficulty now, and Greg Lukianoff has
discussed that, both in his writings and today, very well.
And so, I think we have to intervene in this sector now,
and you mention the Woodward Report. Woodward Report was
published in 1974, and it gave a history of a series of attacks
on free speech that had occurred at Yale going back to 1963.
These were, pretty much, attacks from the left against the
right. The problematic pattern, the McCarthyism of the 1950s,
was a very big problem, but beginning in the early 1960s, the
problem went the other way.
So, we have to realize this problem on campus has been
going on for more than five decades, and it is getting worse
now, and administrators are still caving. That is why I have
suggested legislative intervention at both the State and the
Federal level. Ordinarily, you try to take a hands-off posture
and see if a sector could right itself. But, what has happened
now is that for, literally, five and one-half decades, the
problem has been getting worse. I think legislators,
ultimately, their first responsibility is to protect the rights
of their constituent. So, I think it is time to intervene.
Mr. DeSantis. Well, I mean, we are sending a lot of money.
So, that is really why we have a role. If we were not funding
anything, then I would just say we just stay out of it, but if
we are going to be subsidizing these types of forums that are
not infused with free speech values, then it becomes an issue.
Mr. Klukowski, you mentioned, you know, some of the
drowning out of pro-Israel voices in college campuses. This is
very concerning to me. Is that something that is relatively
recent, or is this been a long-running problem.
Mr. Klukowski. The BDS movement is a more recent
phenomenon. I mean, there has been different types of
disfavored views on campuses, of course, going back countless
decades. But, what you see here is the Israel and America's
conservative, Christian community married as close cousins, in
terms of the sort of disfavor that they see for their
viewpoints and their values.
I do not know if one is a proxy for the other, or what,
precisely, the connection there is, but it tends to be the same
students who both try to express biblical beliefs or other
observant, conservative Christian beliefs, who are also
outspoken supporters of the Nation of Israel, and we see,
between the two of those, we see a multi-pronged opposition
taking all of these various points.
Mr. DeSantis. Great, it was a good panel. You guys did a
good job, and I would just say that I would echo my colleague
on the other side about, you know, trying to drown out speech
by just yelling people down. I mean, be passionate and make
your voice heard, but these speakers that come to campus should
be heard. Defeat them with the ideas, if you do not like them;
make good counterarguments, but do not just scream, so they
cannot get their point across, and I yield back.
Mr. King. The gentleman returns his time, and the chair
will now recognize the ranking member of the full Committee,
the venerable gentleman from Michigan, Mr. Conyers.
Mr. Conyers. Venerable is, well, I do not know if it is
appropriate. Let me say, Chairman King, that you have
demonstrated a very open and very fair examination of this
whole question of First Amendment protections yourself, and I
wanted to compliment you on it. I think this discussion with
these distinguished witnesses would pass muster at an American
Civil Liberties Union in itself.
And I sincerely congratulate you on it, and the witnesses
have been very provocative. To David Hudson, I would like to
ask, would not requiring colleges to punish students, possibly
with expulsion, or shouting down of offensive speakers itself,
violate student free speech rights? What do you think of that,
sir?
Mr. Hudson. It could be. It would have to be analyzed on a
case-by-case basis. I do think that you would have to have a
clear standard, something that cancels the substantial
disruption. If a student does, intentionally and substantially,
disrupt a school function, then that is rewarding freedom of
speech, and that is disallowing invited speakers. As far as
expulsion, that seems like a drastic remedy to me. I think that
there certainly could be punishments far less severe, and I
hope it would be an opportunity for the university to have a
teaching moment.
You know, I believe fully in the counter-speech doctrine,
and I mentioned Justice Brandeis, ``More speech, not enforced
silence.'' The very next sentence, I believe, in his opinion
is, ``Only an emergency can justify repression.'' So, in
emergency circumstances, I certainly believe that the
university can take the steps that it needs to ensure that
there is order and that the invited speaker can speak.
Anytime you have punishment for a student for speaking out,
I think there has to be clearly delineated standards, or we run
afoul of due process concerns, and the last thing we would want
to do is to have a zero-tolerance mentality that is infecting
many K through 12 school districts and superimpose that on the
college and university level.
Mr. Conyers. Thank you so much. Continuing our discussion,
some of you argued that hate speech is not merely a symptom of
merely underlying bigotry, but also a cause of such bigotry,
and that hateful speech and images can create social realities
that put minorities and women at risk, thus justifying limits
on such speech. How do you figure that kind of situation into
our examination of this important subject?
Mr. Hudson. Well, I generally think that speech should be
protected. In our free society, hate speech is protected unless
it incites imminent lawless action, unless it crosses the line
into a true threat, or it constitutes fighting words.
Now, on a college and university campus, I would support a
well-drafted, narrowly-tailored, anti-harassment code that
deals with direct, face-to-face harassment and vilification.
That has to be addressed; we cannot ignore racism in this
country, and we cannot ignore racism on public college and
university campuses because that could deny somebody the
opportunity to attend and have a free educational environment.
But, that does need to be severe and pervasive harassment, as
Mr. Lukianoff has said and written in his stated and written
testimony. Severe and pervasive harassment is a recognized
standard in employment discrimination law, and I certainly
think the U.S. Supreme Court used it in Davis v. Monroe.
So, I think, when we have an anti-harassment code, it has
to be narrowly tailored, and it has to deal with direct, face-
to-face vilification.
Mr. Conyers. Thank you, sir. Now, my last question is to
Greg Lukianoff. If a harassment policy modeled on the title IX
standard would pass constitutional muster, why have not more
colleges and universities, particularly public ones, adopted
its severe, pervasive, and objectively offensive requirements?
Mr. Lukianoff. That is a terrific question, and the answer
is that, the first thing that they believe, falsely, that by
having a more expansive definition of harassment or, for that
matter, having speech zones, for example, that they are
protecting themselves from legal liability, and this is a fear
that is fed into by what is known as the risk management
industry, which have consultants that, more or less, say, ``You
know, definitely cover yourselves.'' And this is made worse by
the growth and bureaucracy on campus.
So, you have full-time employees who are trying to figure
out ways to regulate every aspect of student life, and they
overregulate. Political correctness, of course, is real. So,
there are people who actually do want to protect people's
feelings, but there is also ignorance of the law, is a problem.
So, FIRE works closely with administrators all the time,
trying to make sure they understand, again, both the law and
philosophy behind it, and, unfortunately, the fifth factor that
is new is that students, some relatively small number of
students nonetheless, that seem to be demanding these new
codes. So, when we talk about changing university codes to
reflect the actual, Federal Davis standard that we recommend,
we are saying, ``First of all, the code you have is going to
get you sued eventually, and you are going to lose in court.''
The definition that we propose comes directly from the Supreme
Court; it is never going to be overturned, and it does actually
deal with cases of serious harassment.
Now the, one last thing, trick though is to tell
universities that it should be no less or no more than Davis
because the heartbreaking thing, looking at these policies
sometimes, is you will see a perfectly constitutional
harassment policy in one section and then the other section
they say things like, ``Inappropriately directed laughter.''
Mr. Conyers. Thank you, sir, and I thank all the witnesses,
and I yield back, Mr. Chairman.
Mr. King. The humble gentleman and venerable gentleman from
Michigan has returned his time, and now the chair would
recognize----
Mr. Conyers. You used that word again.
Mr. King. And the chair would now recognize the gentleman
from Arizona, Mr. Franks, for 5 minutes.
Mr. Franks.
Mr. Franks. Well, thank you, Mr. Chairman. First, Mr.
Chairman, I would just like to congratulate you on having this
hearing on such a profoundly significant and important issue. I
consider freedom of religion and freedom of expression to be
the cornerstone of all other freedoms, and I have heard the
tremendous comments here today. It gives me hope.
Mr. Hudson, I think you are the minority witness here, and
yet, I have heard a lot of things that comport with what I hear
from the rest of the witnesses here and, sir, I do not think
you are ever going to need a microphone in your class.
But I was really astonished at your ability to call these
things from memory, and I assume that is probably partly
because you teach this in class on a number of occasions.
It gives me hope to see that, among thinking and studious
individuals, that there is a large commonality here in free
speech in general, because I am convinced that truth and time
do, indeed, travel on the same road, and if truth is given a
chance, it will prevail over fallacy. So, again, I just
congratulate everyone.
Mr. Kurtz, your quiet scholarship is stunning, and Mr.
Lukianoff, I think you are going to be at the forefront of a
lot of good things that are going to happen, and I have already
addressed Mr. Hudson, and Mr. Klukowski has been a friend of
mine for 25 years or more, and I should not say that publicly
because it will completely undermine his testimony.
But, I think he has presented himself tremendously well
today. So, I am going to, you know, remind us all what Abraham
Lincoln said: ``Those that deny freedom to others deserve it
not for themselves, nor under a just God can they long retain
it,'' and one of the great concerns I have are these campus
shout-downs, and I see that in the political arena a great deal
now, where there is not a discussion, where there is just,
simply, a bullhorn that just drowns everyone out and, to me,
that is the antithesis of free speech, and I appreciate how it
has been very forthrightly addressed by all of you.
So, Mr. Lukianoff, I was just going to give you another
chance to, kind of, give us an update on how prevalent speech
zone policies in the Nation's public colleges and universities
are, and what do you think? Is there rationale to quarantine
free speech to one specific area?
Mr. Lukianoff. Oh my, well, they have been decreasing. I
said there has been about 60 lawsuits against speech codes, and
an awful lot of those have been against speech zones. So, they
are about one-fifth of the colleges we survey now maintain
speech zones. But, if it is okay to talk about the shout-downs
for a second, I am working on a book right now, and I have to
spend a lot of time watching some of the recent situations. For
example, at U.C. Berkeley when the riots broke out, and the
thing that scared me the most about that was that it was not
just merely shouting someone down; it was actually responding
with violence.
People were hit in the face with flagpoles; people were
Maced; people were struck; there was pools of blood that
protestors were trying to clean up, and I felt genuinely scared
watching that because they were very lucky that nobody got
killed. And when we start actually making the transition from
merely shouting down, surely bad enough, but when it becomes we
have to do more; we have to physically attack these people; we
have entered a situation that makes me genuinely quite scared.
Mr. Franks. Well, I could not agree with you more, and I
think it kind of falls on us. When we allow people to be
shouted down, if we do not draw the line there, then we invite
what follows it.
Mr. Lukianoff. As for an example where people absolutely
should have been arrested, what happened at Berkeley, you know,
by not doing that, they encourage bad behavior in the future.
Mr. Franks. I agree. Mr. Klukowski, I am troubled by the
double standard that colleges seem to be applying when they let
fraternities choose their leaders and members based on sex, but
refuse to let the religious groups choose their leaders based
on religious beliefs, and I think it is great for colleges to
allow fraternities to choose their leaders and members as they
always have done, but why not allow the religious groups to do
the same? Why the double standard?
Mr. Klukowski. Well, it is disturbing, and there is a
recent Supreme Court case, Christian Legal Society v. Martinez,
it was a 5-4 decision; I respectfully believe that the court
decided that wrongly, where you had the Christian Legal Society
just said, ``If you wanted to be an officer of the club, then
you needed to adhere to certain religious views and conduct
consistent with those religious views,'' and in that case, it
was on the matter of sexuality.
And it is no surprise to anyone on this committee that
there is a robust debate in the country on matters of marriage,
and sexuality, and gender, and in a regard, it is just an
evolution of debate that has been going on for decades on
abortion, and that becomes, for individuals who have certain
views that are derived from millennia-old religious beliefs,
are they allowed to express those, both in terms of their
written and spoken words, and are they also allowed to organize
themselves according to those principles? And I think there has
been a very disturbing trend in the law in that regard, and I
hope the Supreme Court now moves more in the direction of the
original meaning of the relevant provisions of the First
Amendment and restore these safeguards for people of faith.
Mr. Franks. Well, Mr. Chairman, that is certainly the
Supreme Court's job, to consider the original intent. I thank
you for this, and I guess I am just reminded, from all of us,
that true tolerance is not pretending you have no differences.
It is being kind and decent to each other in spite of those
differences. Thank you, sir.
Mr. King. The gentleman returns his time, and the chair
would now recognize the gentleman from New York, Mr. Nadler.
Mr. Nadler. Thank you. I am glad Mr. Franks just went
before me because he raised a subject that I want to pursue for
a moment with Mr. Klukowski. I would think that a college
religious society, the Christian Society of whatever college,
should be allowed to limit its officers to believing
Christians.
What I want to ask is, you made a statement about
controversies. Now, I can understand if the Catholic Society of
so-and-so college wanted to limit its officers, or its
membership, for that matter, only to people who believe
abortion was immoral; they should be able to do that.
On the other hand, if they wanted to bar people who said,
``Well, I believe, as a practicing Catholic, that abortion is
immoral, but I also believe that I should not impose my views
through government, then I disagree politically with
governments opposing abortion.'' Should that be allowed, too,
or is that going beyond the religious requirement?
Mr. Klukowski. Well, and I think that is not necessarily
exclusive to religion. For example, if you had an NRA club on
campus, and you had a gun control advocate who wanted to be an
officer and then to try to start creating policy for the
organization who says, ``I support the Second Amendment, but I
believe what I consider reasonable restrictions, such as saying
no one can have a handgun in their home.''
Mr. Nadler. No, no, that is a wrong analogy. Someone who
agrees with the Catholic Church's position on abortion 100
percent; it is immoral; it is horrible, et cetera, but
disagrees about government policy.
Mr. Klukowski. I believe it is the same, Congressman,
because this is someone who can say, ``I personally think
everyone should own these things, but I do not believe I should
impose those rules on government that they have to have laws
that respect those things.'' I think the two are inseparable. A
person's faith and their religious beliefs----
Mr. Nadler. So, you think that the society should be able
to bar, as officers or members, both groups of people?
Mr. Klukowski. I believe it is the role of the faith-based
organization and not the government, which the university
administration is the government, to impose that requirement on
them.
Mr. Nadler. I just wanted to clarify. Now, let us get back
to the subject of the hearing. Let me say, I feel very strongly
about these issues and, personally, that these issues are being
shouted down. When I was an undergraduate at Columbia, I was
very deliberately shouted down at a political meeting and
prevented from expressing my view as soon as a certain faction
got a whiff of what they thought my view might be, and I was
not the only person at that meeting. And I remember what it
felt like, and I am very much opposed to that.
First, Mr. Hudson, and please answer briefly because I have
a number of questions, do you believe the Garcetti decision has
created confusion in the lower courts over whether there is an
academic exception from the general rule that a public
employee's speech made pursuant to official duties is not
protected under the First Amendment, and have we seen public
university professors punished under Garcetti and,
specifically, under the K to 12 rules of Garcetti?
Mr. Hudson. Yes, there is a split in the circuits. The
Fourth Circuit in the Adams decision and the Ninth Circuit in
the Demers decision that said Garcetti does not apply in the
academic context when we are talking about scholarship.
Mr. Nadler. Okay, and Mr. Hudson, and Mr. Lukianoff, the
campus anti-harassment act proposed by FIRE defines actionable
harassment, in part, as part of a pattern of targeted
unwelcomed conduct. Could a single incident, if it is
sufficiently severe and objectively offensive, also constitute
harassment, as would be the case under employment
discrimination law?
Mr. Lukianoff. Generally, it would be a pattern of
behavior. It would have to be something that actually becomes
more behavioral----
Mr. Nadler. Mr. Hudson.
Mr. Lukianoff. Sorry.
Mr. Hudson. It depends on how egregious the act is.
Generally, it needs to be repetitious. If the act is egregious
enough, at least in employment discrimination law, it could
rise to the level of severe and pervasive.
Mr. Lukianoff. And by the way, generally, things that are
egregious enough are unprotected speech for other reasons.
Threats would not be protected, for example, because it is
already unprotected speech.
Mr. Nadler. Now, Mr. Kurtz and Mr. Klukowski, are you
concerned that any Federal legislation that would penalize a
State college or university by withholding Federal student aid
or other educational funds for refusing to implement the
federally-mandated speech disciplinary system or for failing to
abide by a pledge to uphold religious liberty, as defined by
congressional statute, might run afoul of constitutional
limitations placed on the spending clause? In other words, that
it is beyond our ability to do that under our spending clause
power?
Mr. Klukowski. You are referring, Congressman, to the
coercion doctrine under the Tenth Amendment. To date, there has
only been one case where it has been held that the dollar
amount that was on the table actually coerced the States to
such a degree that they did not have a meaningful choice.
Mr. Nadler. It is not just the coercion. We have to have a
constitutional basis for anything we do.
Mr. Klukowski. Yes.
Mr. Nadler. If we were to pass such legislation penalizing
a State college/university for the reasons stated, would that
be within our power to do such a thing because we give them
money under the spending clause?
Mr. Klukowski. Under United States v. Butler, 1936, it
would be. The Supreme Court was divided on that issue:
Madison's view would be that would have been unconstitutional,
but Hamilton's view defeated Madison's there, and the court
interpreted a very broad mandate for spending power that would
authorize that sort of restriction.
Mr. Nadler. Mr. Kurtz.
Mr. Kurtz. Well, there are already something called program
participation agreements that colleges and universities sign
that have quite a number of requirements when they receive
Federal money.
And, of course, under title IX of the Higher Education
amendments, I actually think that enforcement through guidance
from the secretary has gone too far, but we have got a
precedent of a tremendous amount of Federal involvement in
fine-toothed issues in universities. So, I would be surprised
if fundamental protection for freedom of speech would run afoul
of that provision.
Mr. Nadler. Thank you, and let me thank the chairman for
letting me go over time.
Mr. King. The gentleman returns his time, and the chair
would now recognize the gentleman from the first district of
Texas, Mr. Gohmert.
Mr. Gohmert. Thank you, Mr. Chairman. Thanks for having
this hearing because it really is critical. You are all asked
to speculate, without the rules being before you, about the
Congressional Art Contest. So, let me read you the rule that
every contestant had to read and sign, saying they understood
the rules.
In part, it says, ``Exhibits depicting subjects of
contemporary political controversy or of a sensationalistic or
gruesome nature are not allowed. Any portion not in conscience
with the Commission's policy will be omitted from the exhibit.
If an entrant is unsure about whether a piece of art is
acceptable, he or she should contact the staff, or his or her
member of Congress, and then the congressional staff can speak
with personnel who can determine whether the artwork would be
acceptable.''
So, only if you believe contemporary political controversy
is vague and unreasonable, or arbitrary and capricious, would
one say depicting our Nation's law enforcement officers, who
risk their lives to save ours every day, depicting them as
dogs, that that would not be political controversy? So, I never
removed the painting; I felt like that should be left for those
in authority, who would make the decision.
It was not my decision, but I guess this points to the
problem we have in Washington, where members of Congress cannot
discern whether or not depicting our law enforcement, who are
heroes somewhere in America every day, depicting them as dogs,
pigs, whatever, that that is not controversial, that is a good
thing. It is amazing.
Yet, at the same time, toward the end of last year, we had
an Israeli writer, fantastic writer, Caroline Glick, writes for
the Jerusalem Post. She has written a book regarding a one-
state solution, and she was invited to speak at the University
of Texas in Austin. Apparently, from what I have been provided,
the J-Street group that is considered the more moderate, or
liberal, some would say self-loathing, of Jewish patriots
patriotic to Israel, but apparently, they also are involved in
APAX.
So, it was allegedly pro-Israeli group that put pressure to
have her disinvited. Another group stepped in and pressure was
brought to bear against them not to have such a controversial
author and writer, and ultimately, she was disinvited, although
a rabbi offered to let her speak in his home when pressure was
brought to bear about him trying to have her come to a public
institution.
As I attended Texas A&M, it was one of the most
conservative, public institutions when I attended. We were
proud to have very liberal people there. I was helping host
Ralph Nader, and I loved the exchange, but what deeply bothers
me about Texas A&M and most all colleges, with just a very few
exceptions, it is as if they are afraid to debate a
conservative position.
So, let me ask what you see as the biggest danger in our
college campuses and how would you recommend we, specifically,
take steps to stop it or prevent it? Just, very quickly. I know
you gave statements in your dealing with this issue, but I
would like to get down to a nutshell real quickly.
Mr. Kurtz. Sure, Congressman Gohmert, as I said in my
testimony, I think the shout-downs are really fundamental at
this point. They are spectacular; the news travels across the
country through media of all kinds, and so they have a kind of
contagious effect, and that is why I think the State and
Federal legislative proposals I mentioned are necessary, at
least in some form, and that they have got to include something
about the shout-downs.
Mr. Gohmert. But if it is just the shout-downs, could not
that be the local authorities just make sure there is no shout-
downs or usher them out?
Mr. Kurtz. Unfortunately, the local authorities, who are
the university administrators or the police that they choose to
call or not to call in, aren't doing anything. That is the real
problem, is that the administrators that ought to be enforcing
the First Amendment on their public college and university
campuses really are not doing that.
Mr. Gohmert. So, it is like George Wallace refusing to
follow the Constitution requiring Federal action until people
started following, correct? Mr. Lukianoff, do you agree?
Mr. Lukianoff. Well it is a big, grand question. I want to
give, sort of, bigger answers to it on what can be done. Now,
the biggest thing Congress can do is help fix the legal
incentives that actually make it easier for university general
counsels to justify speech codes, to justify erring on the side
of censorship rather than free speech. There is a lot, I think,
Congress can do about that. But there are deeper things that we
need to do, which I had mentioned before, which is teach
philosophy, freedom of speech, earlier, create the right
expectations of students when they come into school.
Students should be taught when they come into--and the
University of Chicago, for example, does a very good job of
this, saying we believe in freedom of speech. That is an
incredible vision, but that also includes that you do not have
the right to shout down a speaker. And you certainly do not
have the right to respond violently.
Probably the subtlest thing, but that we desperately need
to do as a society, is we have to habituate people to listening
to each other across lines of differences. That is something
that institutions like higher education could actually be
helping with, but I think what we are actually doing is we are
encouraging people to talk inside their echo chambers instead
of talk across lines of difference.
Mr. Gohmert. Mr. Hudson.
Mr. Hudson. Limit Garcetti legislatively as applied in the
academic and university context; provide enhanced protections
for student journalists and not allow the importation of
standards for K-12; educate young people with civic education
and give them an opportunity to live in an environment where
they appreciate a constitutional democracy; and continue the
work of groups like FIRE that limit over-broad free speech
zones and over-broad and vague anti-harassment policies.
Mr. Gohmert. Mr. Klukowski.
Mr. Klukowski. Well, first, thank you for sharing the rules
regarding the pictures.
Mr. Klukowski. And on that basis, I would say it is a
viewpoint-neutral, content-based restriction, which would
survive, either under a limited public-forum analysis, or that
it could be associated as governmental speech.
Regarding university campuses, once again, you are
touching, in your example, on a subject matter, which I have
noted as singularly disfavored. And in that regard, again, I do
believe there is spending clause legislation that can be used
to encourage private universities to act like public
universities. I believe that the Justice Department Civil
Rights Division could start investigating public universities
where they are engaging in censorship of speech.
And finally, the Congress needs to consider what can be
done to help protect the ability of individuals and groups to
be able to get lawyers, whether paid or pro-bono, because,
again, there is an increasing boycott movement right now that,
if you take on certain cases, there are major corporations that
are subject to Congress' Commerce Clause power that will drop
you as a law firm.
Mr. Gohmert. Thank you. And Mr. Chairman, thanks for
letting them each answer, though my question went right up to
the time. And if I might inquire, I was trying to remember, was
George Wallace a Republican? Do you recall?
Mr. King. I do not recall that he was ever a Republican,
Mr. Gohmert.
Mr. Gohmert. So, he was a Democrat, okay.
Mr. King. I thank you for your inquiry. I would point out,
as we conclude this hearing, that, at the last straw pull in
Ames, I had an individual come from behind me, reach around,
and grab my microphone, and try to scream and yell and speak
into my microphone. I did not see him coming. I wrestled the
microphone out of his hands, back into mine, and I said, ``Get
your own microphone.''
So, I think that is a relevant narrative to conclude
today's hearing. And I want to thank all the witnesses, not
only for your testimony, but for your response to the
questions, and thank the panelists for your participation, and
the staff.
Without objection, all members will have 5 legislative days
to submit additional written questions for the witnesses or
additional materials for the record.
This hearing is now adjourned.