Trump’s New Free Speech Rule Could Be Effective, Even If Illegal

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Trump’s New Free Speech Rule Could Be Effective, Even If Illegal; Trump’s Sanctuary Cities – and Obama’s Campus Rape – Policies, Demonstrate This 

WASHINGTON, D.C.  (March 21, 2019) – Although many have wondered whether President Donald Trump’s new order, being released this afternoon, which ties research and education grants made to colleges and universities to more aggressive enforcement of the First Amendment would be legal, it could nevertheless prove to be very effective in changing campus culture, and responses to challenges to academic freedom on college campuses, suggests public interest law professor John Banzhaf.

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The order requires agencies to ensure that public  institutions receiving grants comply with the First Amendment, and that private institutions live up to their own stated free-speech standards.

Banzhaf cites, as examples of how effective such orders can be, the effectiveness of Trump's efforts to curb so-called sanctuary cities, and of President Barack Obama's campaign to pressure colleges to be much more forceful in dealing with campus rapes.

While court after court has shot down efforts to back up a threat to cut off federal funding if so-called sanctuary cities did not begin cooperating with the federal government regarding illegal aliens, the threat, which many - including Banzhaf - said was probably illegal, has nevertheless had a significant impact.

Another example was how a mere guidance letter - not even a rule or regulation, and a document which was not issued pursuant to the usual notice and comment process - telling universities in great detail how to deal with allegations of sexual assaults produced a dramatic change in how universities dealt with these matters, even to the point where courts found major violations of due process rights.

One of the important impacts of the new free speech policy Trump just announced is that it would require all colleges and universities, private as well as public, to protect free speech - a requirement not previously imposed on private institutions by the First Amendment.

While Politico suggests that the order will do nothing more than "ask colleges to do what they already have to," it will provide an additional enforcement mechanism for faculty and students who cannot effectively go to court to protect their rights under the Constitution or under campus speech policies.

It would thus provide campus groups which feel that their academic freedom is being violated - e.g., by not being able to present controversial speakers, or to make comments which might offend some group - an important weapon, since they presumably would be able to file complaints with the government.

This same weapon was used very effectively by many groups and individuals who filed complaints that universities weren't forceful enough in dealing with rape complaints, that language they found offensive created a "hostile environment" which interfered with their studies, etc.

Finally, suggests Banzhaf, the order might pressure more faculty members to stand up and protest violations of free speech on their own campuses - something they now rarely do - because the college's failure to act effectively might jeopardize their own research funding.

Even the smallest threat to funding, or even the burden, embarrassment, and expense of dealing with an investigation prompted by a complaint, was enough to compel colleges to begin to protect victims of rape.  It may be equally effective in protecting free speech, suggests Banzhaf.


Professor of Public Interest Law

George Washington University Law School,

FAMRI Dr. William Cahan Distinguished Professor,

Fellow, World Technology Network,

Founder, Action on Smoking and Health (ASH),

2000 H Street, NW, Wash, DC 20052, USA

(202) 994-7229 // (703) 527-8418  @profbanzhaf

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