Justice Department Will Back Suit on ‘Free Speech’ Zone

Attorney General Sessions blasts colleges on issues of free expression.

September 27, 2017
 
Georgetown students and faculty members protest outside the attorney general's speech Tuesday.

WASHINGTON -- Attorney General Jeff Sessions declared Tuesday at Georgetown University Law Center that freedom of thought and speech are “under attack” on American campuses.

He said the Department of Justice would file a “statement of interest” in a lawsuit involving a Georgia public college’s use of “free speech zones” and that the department would make more such filings in weeks to come.

Sessions’s new apparent focus on free speech in higher ed reflects an ongoing concern of many Republican officials, who have held multiple congressional hearings to take college leaders to task over high-profile campus incidents. It also comes after a week in which the president drew national attention for his coarse condemnation of National Football League athletes’ public protests against police brutality, which have remained lawful, nonviolent and nondisruptive.

And the speech drew protests from many Georgetown law students and faculty members who oppose the attorney general’s broader agenda as well as his record on civil rights.

“Freedom of thought and speech on the American campus are under attack,” Sessions declared. “The American university was once the center of academic freedom -- a place of robust debate, a forum for the competition of ideas. But it is transforming into an echo chamber of political correctness and homogenous thought, a shelter for fragile egos.”

The attorney general cited a 2017 survey from the Foundation for Individual Rights in Education that found 40 percent of responding colleges maintained speech codes “substantially infringing” on constitutionally protected speech. (He didn’t mention that FIRE’s own metrics showed the situation improving at colleges.)

The lawsuit DOJ weighed in on Tuesday involved Chike Uzuegbunam, a student at Georgia Gwinnett College who, his lawyers have argued, was prevented from efforts to "share his Christian faith" because of campus rules limiting expressive displays to small "free speech zones." Such zones have been vulnerable legally in cases where they are seen as effectively preventing students’ free speech.

A statement from the Justice Department said the zones at Georgia Gwinnett constitute 0.0015 percent of the campus, and that students must also obtain prior authorization for many activities, even in the zones.

A spokeswoman for the college said Georgia Gwinnett believes the rights set forth in the First Amendment "are of the utmost importance."  

"Though the College cannot comment on pending litigation, it has ensured and will continue to ensure that individuals are able to exercise their First Amendment rights on campus," said Asia Hauter, a spokeswoman for the college.  

Sessions picked out a handful of instances of restrictive speech codes at colleges and universities, as well as notable incidents involving campus speech conflicts, to depict a broad threat to free expression in higher education. (The full text of the attorney general's remarks can be found here.)

Noting the incident when Charles Murray, a controversial social scientist, was shouted down and prevented from talking at Middlebury College, Sessions said that colleges were too tolerant of the "heckler's veto."

“This is not right. This is not the great tradition of America,” he said. “And, yet, school administrators bend to this behavior. In effect, they coddle and encourage it.”

Middlebury eventually punished nearly 70 students for varying roles in what happened during Murray's visit.

FIRE welcomed Sessions’s speech Tuesday. Executive Director Robert Shibley said, “As campuses struggle with an uptick in violence in response to controversial speech, we are glad to see the Department of Justice bring much-needed attention to this issue.”

PEN America, another group that advocates for free speech, meanwhile questioned some of the attorney general's statements. The group issued a statement noting that Sessions did not mention incidents in which conservatives have urged colleges -- sometimes successfully -- to block speakers.

“In an environment where the White House and administration have repeatedly failed to convincingly denounce hateful rhetoric and gestures, some Americans understandably fear that menacing speech is spreading untrammeled and can morph into dangerous action,” the PEN statement said. “We agree with Jeff Sessions that the defense of free speech rights on campus must be uncompromising, and that neither the heckler’s veto nor considerations of political correctness should be allowed to silence controversial speech. We also share the concern that, in some instances, free speech rights have been sidelined in favor of other values and priorities. But we note that calls to silence free speech on campus in recent months have derived from both the left and the right and regret that the attorney general confined his examples to left-leaning groups protesting voices considered more conservative. As the Justice Department wades into issues of campus speech, we hope its defense of free expression on campus will encompass not only opposition to infringements on free speech, but also the imperative to ensure that U.S. university campuses are truly open to the speech of all students, regardless of political leanings, LGBT status and racial, ethnic or religious background.”

Sessions has a checkered history with other civil rights groups that may make him an odd messenger to announce a new priority on free speech.

After news of the scheduled event leaked Sunday night, many were quick to note that the Department of Justice is prosecuting a Code Pink activist who was dragged out of the attorney general's confirmation hearing in January after audibly laughing at comments by Alabama Senator Richard Shelby lauding Sessions's record on equality. The woman was found guilty in May of demonstrating on Capitol grounds and disorderly conduct. A judge threw out that verdict, but the government has said it will go back to trial.

Sessions has a much longer record that’s provided fodder for critics, among them civil rights groups like the American Civil Liberties Union. He’s called the Voting Rights Act “intrusive legislation” and prosecuted civil rights activists in Alabama for registering black voters.

As a federal prosecutor in Alabama, Sessions referred to groups like the ACLU and the NAACP as “un-American,” according to Senate testimony by former colleagues after he was nominated for a federal judgeship in 1986.

And in 1996, as Alabama state attorney general, Sessions sought to block a gay organization from holding a conference on the University of Alabama campus. He argued that the meeting of the Southeastern Lesbian, Gay, Bisexual College Conference would violate an Alabama law prohibiting state universities from using public funds to promote "actions prohibited by the sodomy and sexual misconduct laws."

Recent actions from the Trump administration suggest some discordance with the Justice Department's professed commitment to defending free speech. Last month, Harvard University rescinded a fellowship offered to NSA whistle-blower Chelsea Manning after being pressured by the former and current directors of the CIA.

Asked about Sessions’s opposition to the conference and his position on Manning, a Justice Department spokesman said the attorney general’s remarks spoke for themselves.

In a question-and-answer period after his remarks, Sessions also defended recent remarks from President Trump on public protests. Former San Francisco 49ers quarterback Colin Kaepernick last year protested police brutality and systemic racism by kneeling during the national anthem before games. Trump said over the weekend that NFL owners should fire any “son of a bitch” who kneels during the anthem, as Kaepernick did. Those comments drew wide condemnation and prompted wider acts of protest from NFL players Sunday and Monday.

But Sessions said “the president has free speech rights, too.”

“If they take a provocative act, they can expect to be condemned,” he said of protesting players.

Sessions only took questions submitted in advance by students who RSVP'd for the event. Protesters outside complained that more than 100 students who originally received tickets for the event through an online lottery were denied entry because they were not affiliated with a course taught by law professor Randy Barnett, a well-known libertarian.

The law school did not respond to questions about the concerns voiced by students.

“My impression based on who was disinvited and who was allowed to come into the room is they were looking for a curated audience,” said Lauren Phillips, a second-year Georgetown law student involved in organizing the protest. “Which is very ironic to me, given that he was giving a speech on campus free speech.”

About 250 law students and faculty gathered outside on the law center’s front steps before the event. And a group of law professors released a statement beforehand condemning what they called the hypocrisy of the attorney general on free speech issues.

Phillips said that despite deep personal disagreements she has with Sessions over public policy, she supported the school’s decision to host the speech -- an opinion she said was not shared by many of her classmates who joined in protesting the event. But she said that the university should at a minimum have facilitated a real exchange of questions and answers between students and Sessions. Phillips had hoped to ask a question herself about the attorney general’s ongoing opposition to bipartisan criminal justice reform efforts.

“I wonder if he believes that campus free speech should include ability of people to express views that are different from his own,” she said. “His actions speak louder than words here. He excluded dissenting voices.”

Suhaib Khan, another second-year law student, who wore a “Black Lives Matter” T-shirt Tuesday, was able to gain entry to the speech before joining protesters outside afterward.

He said he disagreed with the law school’s decision to host Sessions, especially without giving students the opportunity to weigh in. Absent the chance to challenge or question the attorney general, Georgetown was basically giving the attorney general a public relations opportunity, he said.

“There is an active threat against the right of college students to have free speech, but it is not where he is trying to make it out to be,” Khan said.

Ted Mitchell, the president of the American Council on Education, said free expression and competition between ideas is essential to higher education and has been from the beginning.

“Institutions across the country are making themselves open and available to competing ideas. Georgetown is a perfect example,” he said. “Georgetown welcomed Attorney General Sessions today to express ideas they knew were going to be unpopular with a large portion of their student body and probably their faculty, too. Institutions see that as their responsibility.”

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