Trump EO to colleges: Protect free speech or lose funding; Update: FIRE issues cautious and limited statement of support

Promise delivered? Earlier this month, Donald Trump told a packed house at CPAC that he would force college campuses to protect speech rights for conservatives and pro-life activists. This afternoon, Trump will sign an executive order that threatens to cut off federal funding for schools that do not take steps to ensure free speech on their campuses.

US News contemplates how Trump’s EO will complicate efforts by schools to do a “balancing act” between free speech and hate speech:

Donald Trump is set to sign an executive order Thursday afternoon that would withhold federal funding from public and private colleges and universities that do not protect free speech on campuses.

As explained by a White House senior official, in order to qualify for federal research dollars, public colleges and universities would have to certify that they are complying with the First Amendment, and private colleges and universities would have to certify that they are in compliance with their own policies. …

The move comes as schools across the country have grappled with how to protect the right to free speech on college and university campuses, including for those who may harbor white supremacist, anti-Semitic or other hateful views. The balancing act encompasses ensuring the safety both of on-campus speakers and students who may feel threatened by their views, as well as how to safeguard the campus community from demonstrations associated with such speakers.

The safety issue is a smoke screen. Colleges use it to penalize speech they don’t like by burdening speakers with extra costs and unmeetable conditions. Private schools have the latitude to do so, but public schools shouldn’t. Besides, despite constitutionally impaired media analyses such as these, “hate speech” is still covered by the First Amendment, outside of Brandenburg-level incitement to violence, and cannot be shut down by the government.

What impact will the EO really have, however? Until we know more about the follow-through, it’s impossible to tell:

Public universities will have to show they are adhering to the First Amendment, while private schools will have to show they are living up to their “intended policies” on “open inquiry,” according to the official.

Both public and private schools will have to “certify” that they are following the existing criteria and the new ones for free speech, the official said. But the official was unable to describe in any depth just how the Trump administration will verify those certifications.

Such “implementation details” will be finalized in “a few weeks,” the senior official said, adding the EO will direct the Department of Education to compile a report on risk-sharing for higher education institutions related to student loans.

Given the resistance to using federal authority to dictate matters within the GOP and in the Trump administration, it might be safe to call this merely an advisory EO:

The order comes as some leading Republicans, like Senate Committee on Health, Education, Labor and Pensions Chairman Lamar Alexander, of Tennessee, and members of Trump’s Cabinet, like Education Secretary Betsy Devos, have voiced opposition to the federal government defining free speech.

Since DeVos would have to enforce the EO, one can assume that enforcement won’t be terribly assertive. CNN worries that anything heavier than just a guidance might tend to quash more speech than it liberates, but also inadvertently points to the problem:

There are valid concerns about the climate for free expression on campus. Protests have silenced invited speakers. Students have mounted national campaigns to get professors fired for offensive Facebook posts and tweets. Administrators have shut down campus art exhibits deemed objectionable.

Certain terms, topics and theories are now deemed so offensive on racial, gender, religious or other grounds that for many the easiest answer is not to speak them at all, even if for purposes of scholarly analysis. Hardly a week goes by without a group on the left or right calling to silence those on campus with whom they disagree.

President Trump has declared that his forthcoming order will use the cutting or denial of federal research funds as a cudgel to force compliance with free speech edicts. Such provisions are a recipe for politicization. Tie-ins between campus speech and appropriations or research funds are meant to strike fear in the hearts of administrators, prompting them to consider the political leanings at the state and federal level in deciding which speakers to invite and how to adjudicate speech-related controversies.

Such measures are intended not to keep speech open, but rather to put universities on notice that they are being watched and will face the consequences if their decisions fall afoul of politics.

Actually, that’s the problem now. Speech on campuses hasn’t been open and free to all viewpoints for a generation or more thanks to longstanding politicization within Academia, where anything to the right of Cory Booker routinely gets cast as “hate speech” and efforts are made to shut it down. Almost all of the shutting down goes in one direction, and it’s not to the Left. Administrations set these rules in place long ago; conservatives want to return the favor by politicizing the politicization.

Calling the situation as it exists now as “ripe for politicization” is an outright laughable line.

Of course, the problem here is that we’re compounding the problem rather than solving it. That may be because there’s no really good solution to politicization of Academia short of starving it to death, which isn’t as good of an idea as it sounds. Starving it of market-distorting federal subsidies is actually a good idea for other reasons, which efforts like this might needlessly politicize. And this sets a precedent for federal intervention into campus speech that conservatives might not like when the next president is Kamala Harris rather than Nikki Haley.

But hey, we stopped worrying about precedent and unintended consequences years ago. Some day, when our backs are against the wall and a “Democratic Socialist” president issues EOs declaring national emergencies that require the nationalization of the energy and health-care sectors and bars free-market speech in campuses, conservatives will rally against expanding federal authority and executive power. But today is not that day.

Update: The Foundation for Individual Rights in Education has worked on the front lines of this fight for decades. They don’t seem terribly enthusiastic about federal intervention, although they’re not opposing it — yet. Full statement by e-mail, emphases in original:

Since 1999, FIRE has defended freedom of expression on our nation’s campuses by fighting for public universities to honor the First Amendment and for private universities to fulfill their voluntary promises of free speech and academic freedom. Today’s executive order directs federal agencies to “take appropriate steps” to “promote free inquiry” at institutions that receive federal research and education grants, including through compliance with the First Amendment or fulfillment of their institutional promises. To the extent that today’s executive order asks colleges and universities to meet their existing legal obligations, it should be uncontroversial.
FIRE will watch closely to see if today’s action furthers the meaningful, lasting policy changes that FIRE has secured over two decades — or results in unintended consequences that threaten free expression and academic freedom. We note that the order does not specify how or by what standard federal agencies will ensure compliance, the order’s most consequential component. FIRE has long opposed federal agency requirements that conflict with well-settled First Amendment jurisprudence. We will continue to do so.
FIRE knows from years of experience that censorship silences students and faculty from across the ideological and political spectrum. Any principled and effective defense of freedom of expression must protect student and faculty expressive rights without regard to viewpoint. To secure the benefits of the “marketplace of ideas” for campus communities and for our nation as a whole, all students and faculty must be free to peacefully speak their minds.
As our work demonstrates, campus censorship is a real and continuing problem. We appreciate the executive branch’s attention to this issue. As a proudly nonpartisan organization, FIRE will continue to lead the fight for campus speech rights and academic freedom regardless of the political party in power or the popularity of the speech at issue. The First Amendment and freedom of expression require no less.
The Foundation for Individual Rights in Education (FIRE) is a nonpartisan, nonprofit organization dedicated to defending and sustaining the individual rights of students and faculty members at America’s colleges and universities. These rights include freedom of speech, freedom of association, due process, legal equality, religious liberty, and sanctity of conscience — the essential qualities of liberty.