Saturday, February 18, 2017

Bill would protect free speech on UW campuses

I used to think that the only constitutional rights in danger were those associated with criminal law.  A classic example is the Fourth Amendment.  When a defendant moves to suppress physical evidence (typically a small amount of marijuana) in a criminal case that was set in motion by an illegal search, courts will bend over backwards to find that no Fourth Amendment violation occurred.  And even when they are forced to concede that the defendant’s rights were, in fact, violated, they insanely conclude that the defendant is not entitled to suppression of the illegally obtained evidence.  (For more on this mind-boggling state of affairs, see this article.)

On the other hand, I used to think that everyone respected the First Amendment right of free speech.  After all, the First Amendment doesn’t protect only those accused of crimes.  (In fact, free speech is rarely an issue in criminal cases.)  Rather, the First Amendment protects all of us.  And social change, or change of any kind, simply would not be possible without free speech.  For these reasons, the First Amendment is important not only as an end in itself, but as a means to improve our society in countless ways.

Over the last few years, however, I’ve learned that the First Amendment is just as weak as other constitutional rights.  To begin, consider the legal profession.  The way the Wisconsin State Bar and Office of Lawyer Regulation (erroneously) interpret our ethics rules, these bureaucracies contend that we lawyers may not talk or write about even the public aspects of our closed cases.  And the Supreme Court of Wisconsin is no better.  It voted 4-3 to reject my petition to modify the ethics rule because, in their minds, it was a solution in search of a problem. 

And none of this should be surprising based on what’s happening at law schools — the institutions that trained the bar bureaucrats and the judges.  For example, the University of Oregon (a public institution subject to the First Amendment) recently suspended a law professor for the Halloween costume she wore in her own home at a private party.  Not only was she engaging in protected speech in her own home, but even her persecutors agreed that her intent was pure: her costume was designed to “raise awareness” or “start a discussion” about the lack of minorities in certain professions.  (Nowadays, it’s not enough to hold a politically correct view; you also have to express it in just the right way or your goose — or Duck, as it were — will be cooked.)

And neither should this be surprising, given what’s happening at our nation’s universities.  Colleges routinely restrict speech that isn’t politically popular or could be considered “offensive.”  Professors and (especially) administrators entrenched in the academic bubble even go so far as to equate mere words with physical violence, and to equate the election of a presidential candidate with terrorism.  (For countless examples of free speech violations on campuses, scroll through The College Fix.)  Even at Berkeley, which is commonly regarded as the home of the free-speech movement, people are resorting to physical violence and the destruction of property to prevent people from expressing unpopular (but constitutionally protected) opinions.  This is truly a mind-boggling turn of events in a relatively short span of time. 

And things are bad in the UW system as well.  Fortunately, there’s a bill pending that would strengthen free speech protections on UW campuses across the state.  (Hat tip to Atty. Eric Olson for sending me the link.)  The new law would put an end to restrictions on speech and the punishment for the exercise of free speech — something the First Amendment already does in theory, but often not in practice. 

This Wisconsin bill states, in part, that “each institution and college campus has a responsibility not only to promote a lively and fearless freedom of debate and deliberation, but also to protect that freedom when others attempt to restrict it. It is not the proper role of the board or any institution or college campus to attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive.”

This would be a welcome development and would correct those at UW who believe a person’s speech is removed from First Amendment protection whenever it fails to comport with the prevailing wisdom on campus. 

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