It wasn’t luck that gave the U.S. the best free speech protections in the world: A free speech news round-up

It’s been just about two weeks since St. Patrick’s Day… which I hope has been enough time for everyone to recover from any holiday festivities!

For many, St. Patrick’s Day is considered the luckiest day of the year, which got me thinking about luck versus hard work.

When it comes to free speech, is it simply luck that America is unique in the world with its First Amendment? Or is that due to hard work?

No people in the history of the world have enjoyed more protection for their freedom of speech than Americans today. As big as that claim is and as much as we have to do, it’s still objectively true.

How did we get here? There’s certainly some of what some would call “luck” involved.

It’s hard not to look at the founding generation who wrote the First Amendment and appreciate the good fortune to have that collection of Madison, Washington, Jefferson, etc. all able to appear on the world’s stage together, share a pint (probably not green), and develop a plan for the government and nation we’ve inherited — including the Bill of Rights.

Yet it’s also true that the strength of the First Amendment today is due to a lot of hard work by Americans throughout history. Folks have dedicated their entire careers and lives to protecting Americans’ right to free speech.

Here are some examples of hard work that has gone into defending the First Amendment and free speech values in just recent weeks.

Secretary Mayorkas’ secret?

Americans for Prosperity Foundation continues to investigate the Disinformation Governance Board: “Federal officials keep using personal emails for government duties,” write Ryan Mulvey and Kevin Schmidt in The New York Post. No, it’s not 2016 — this time, the federal official is Department of Homeland Security Secretary Alejandro Mayorkas. And the private emails he’s withholding include ones concerning last year’s short-lived (thanks to many of you who spoke up) and Orwellian Disinformation Governance Board. From their op-ed:

“Because private accounts are not generally subject to federal records laws – and cannot be easily searched via agency records tools — these unofficial communication channels essentially operate in a cloak of secrecy. And convincing a federal judge that private accounts hold official records is difficult, making them challenging to recover. The records about Mayorkas were disclosed and confirmed to AFPF under the Freedom of Information Act (FOIA) as part of our ongoing investigation and lawsuit concerning the Disinformation Governance Board. …

It’s because of situations like these — both the improper use of private emails along with dubious government programs threatening free speech — that tools such as the FOIA have become so essential in preventing impunity.”

Administrative overreach tramples civil liberties

The Wall Street Journal editorial board succinctly sums it up: “The administrative state is where most of the abuse in government is these days.” Actual laws violating First Amendment rights are relatively rare. Much more common are bureaucratic mandates that simply ignore free speech.

Under Chair Lina Khan, the Federal Trade Commission (FTC) recently told social media platform Twitter to reveal its media contacts, leading the WSJ editorial board to conclude:

“One lesson from this bullying is that the proposal by Sen. Josh Hawley to give even more power to the FTC to regulate media platforms is asking for even more political abuse.”

Protecting people’s privacy

After a victory in the landmark Supreme Court AFPF v. Bonta case, AFP is continuing to ensure government upholds the decision and protects people’s rights. AFPF and AFP are bringing a lawsuit against Proposition 211 in Arizona, and AFP AZ State Director Stephen Shadegg explains why:

“No American should be forced to choose between staying safe or speaking out.

Today’s unpopular opinions may very well be tomorrow’s mainstream views. But if we stifle free speech now, it will be harder to find out – if we ever do.

Arizona deserves better. That’s why my organization is bringing a federal lawsuit against Proposition 211. We’re asking the courts to uphold Arizonans’ constitutional rights to privacy and free speech – just like the Supreme Court has done from 1950s Alabama to 2020s California.

People of every belief and background deserve to support causes without fear of government harassment or ideological intimidation. That’s something Americans can, and do, agree on.”

Law schools showing their Ws

While universities – especially law schools – should be models of free speech, it’s no secret that far too many have failed to live up to that standard in recent years. That’s one reason I’m impressed by – and thankful for – Stanford Law School Dean Jenny Martinez, who drafted a 10 (!) page memo affirming her school’s support for free speech and criticizing the actions of students and a DEI dean who disrupted a student Federalist Society event earlier this month.

My friend Judge Kyle Duncan was invited by Stanford’s Federalist Society to participate in a discussion on “Guns, Covid, and Twitter” on March 9, but students, backed by the DEI dean, used a heckler’s veto to silence him and prevent their fellow students from hearing from him. Here’s a long but excellent excerpt from Dean Martinez’ memo. I recommend the whole thing.

“The university’s commitment to diversity, equity, and inclusion can and should be implemented in ways that are consistent with its commitment to academic freedom and free speech. …

Indeed, for the reasons explained below, I believe that the commitment to diversity, equity, and inclusion actually means that we must protect free expression of all views. The Federalist Society has the same rights of free association that other student organizations at the law school have. Students calling for the law school administration to restrict the organization or the speakers it can bring to campus are demanding action inconsistent not only with freedom of speech but with rights to freedom of association that civil rights lawyers fought hard in the twentieth century to secure. …

Unless we recognize that student members of the Federalist Society and other conservatives have the same right to express their views free of coercion, we cannot live up to this commitment nor can we claim that we are fostering an inclusive environment for all students.”

As my Stand Together colleague Zack Huffman put it, “Free speech and diversity are not in tension. They’re inextricably linked – you can’t do one well without the other. One of the most crucial ways we allow diverse people and groups to participate fully in democracy and public life is through the exercise of free speech. … We should be incredibly wary of arguments that cast free speech aside for the sake of protecting diversity.”

And ICYMI, my NCAA Tournament bracket based on commitment to free speech

Earlier this month, I used FIRE’s college free speech rankings to play out the NCAA tournament if teams advanced based not on their basketball skills but on their university’s commitment to free speech. Sadly, with Purdue’s shocking loss, among others, free speech isn’t having a lucky run in the NCAA Tournament.

Do the results surprise you?

So, what do you think? Did this week’s round-up of free speech news leave you convinced the strength of our First Amendment is due to luck – or to hard work? Let me know by emailing!


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