Trump’s free speech on campus order, Stanley Kurtz’s take

Stanley Kurtz has devoted a vast amount of time and energy to the fight for freedom of expression on college campuses. I can’t think of anyone better qualified than Stanley to comment on President Trump’s executive order on the subject.

Stanley strongly supports the order. He considers it “an inflection point in a decades-long struggle over the direction of the American academy” and indeed “a game-changer.”

Stanley makes short work of the hack liberal talking-point on Trump’s order that it merely reaffirms existing law, and is thus little more than a meaningless sop to his base. He responds:

This critique entirely misses the point. Public universities are indeed obligated to uphold the First Amendment. The problem is that they regularly ignore that charge and promulgate unconstitutional speech codes, speech zones, and bias-reporting systems anyway.

There’s a cottage industry in lawsuits against public universities that violate the First Amendment, as well as against private colleges that flout their own stated free-speech principles. Plaintiffs usually win once they muster the time, money, and courage to sue, but universities quickly find roundabout ways to reinstitute the offending policies, beginning the cycle again.

If colleges face a loss of federal funds, however, they just might give up on evading the First Amendment.

It’s easy to understand why liberals want to dismiss the order as a mere restatement of what colleges are already obligated to do. Lame as this talking point is, it beats arguing against free speech on campus.

Therein lies the beauty of Trump’s order. As Stanley says, “it only asks colleges to do what they are already legally obligated to do; who can quarrel with that?”

It’s true that private colleges may be more reluctant to promise to uphold free expression if they know they can lose funding for failing to follow through. To this objection, Stanley replies:

[I]t’s likely that those schools never seriously meant their acceptance of the Chicago statement [a free speech on campus pledge] to begin with. Private colleges that refuse to endorse free speech will expose themselves to public criticism, and rightly so. The result will be greater transparency at private colleges, entirely justified embarrassment, and pressure for real change, as opposed to window-dressing.

For Stanley, the bottom line is that “Trump’s order will shift the balance of forces on campus.”

Universities will now have to take loss of federal funding into account when creating speech codes, so-called free speech zones, or bias-reporting systems, or handling visiting speakers. It’s true that the new order might be enforced either lightly or assertively, and we don’t yet know how that will play out. Yet the very existence of the order sets up a dynamic that will make it harder for colleges to stifle free speech, and tougher for regulators to ignore it when they do. . . .

The administration will either actively enforce the new rule, or be publicly attacked by its base for refusing to do so in the face of obvious violations. In many — perhaps most — cases, university offices of legal counsel will remove unconstitutional policies well before regulators even act.

The order also makes sense politically. As Stanley explains:

Conditioning federal funding on the maintenance of campus free speech will instantly take its place in the litany of policies for which Trump is praised and thanked by his base. It’s tough to overestimate how concerned conservatives have become in the past few years over political bias, shout-downs, intimidation, bogus accusations of bigotry, and pervasive self-censorship in the academy. More important, these concerns are shared by swing voters and moderate Democrats, too.

Thus, the order puts Democrats in a box. They can take the side of free expression or they can appease their authoritarian lefty base.

These days, I almost always expect the worst from Democrats. I expect it in this case, too.