1A lawyers brief students on free speech rights ahead of the fall semester

Before students return to campus this fall, three First Amendment lawyers briefed young Americans on their constitutional rights in Washington D.C on August 1.

“Shut Down: How Universities Target Free Speech and How To Fight Back“ was hosted by the Heritage Foundation and previewed different free speech obstacles students could face on college campuses this semester.

“For many, going back to school will mean self-censorship, discrimination, and ridicule on the basis of their religion, or their political beliefs,” Heritage Foundation Young Leaders Program Director Colleen Harmon said in the opening statement. 

The panel was moderated by Meese Center Senior Legal Fellow Sarah Parshall Perry. It included Young America’s Foundation General Counsel Victor Bernson, Speech First Executive Director Cherise Trump, and Director of the 1A Project at Southeastern Legal Foundation CeCe O’Leary.  

[RELATED: SURVEY: Students’ confidence in free speech rights, support for safe spaces plummet]

The panelists equipped students with an overview of the First Amendment and how it pertains to their ability to speak freely on campus. 

O’Leary clarified that while speech is not absolute and can be restricted based on time, place, and manner, speech cannot be regulated based on political ideology.

“Your views can never be discriminated against,” she said. “No matter where you are standing on campus, your college cannot silence you. They cannot prevent you from sharing your beliefs with other people.”

The panelists commented that the Biden administration’s new Title IX regulations are anticipated to add a hurdle that could infringe on student speech. 

The new regulations add gender identity as a protected class against discrimination, broadening what qualifies as harassment by ditching the standard three-prong test ruled in Davis v. Monroe County Board of Education. 

“Currently, the rule is that you can be punished for harassment on your college campus if you engage in speech that is so severe, pervasive, and objectively offensive that it deprives another student of access to their education,” O’Leary said. “That is a very high standard to meet, and that is because we are concerned about offensive speech being swept into this category. Offensive speech is protected by the Constitution.”

Under Biden’s Title IX plan, misgendering or using improper pronouns could be deemed harassment and eligible for punishment on campus. Point Park University implemented a similar policy last fall that required students to use preferred pronouns and names of transgender students. The policy was criticized for being overly broad. 

Regardless, colleges and universities have enacted such policies nationwide.

Campus Reform has reported on many examples given by the panelists of college administrators tightening restrictions on free speech, including heightened security fees for conservative speakers, enforcement of free speech zones, and the presence of bias reporting systems.

As campuses silence conservatives nationwide, going against the grain at a university can be intimidating for students.

Bernson said, “It’s a ton of pressure to put on a young person, to face literally hundreds of fellow students who are going to be angry, and possibly screaming at them.”

He clarified to Campus Reform that “[l]eftists who wish to censor or cancel free speech, whether school administrators, faculty, or fellow students, do not have the law on their side.”

“These Leftists are merely fighting futile rear-guard actions that only serve to delay the inevitable,” he stated, “provided the conservative students demonstrate the courage to stand up for their rights.”

The culture of free speech on campus has been long-shuttered, according to a report from the Foundation for Individual Rights and Expression (FIRE). According to the study, 80% of college students self-censor on campus. 

Ms. Trump, however, pushed back against self-censorship and implored students to question if staying silent throughout their four years on campus is worth the time.

“[Students] don’t want any push back. They just want to keep their head down, get through their four years, and be done with it,” she said. “But then what are you learning if you’re doing that?”

Trump told Campus Reform that it is important students learn their free speech rights and are not “complacent bystanders.”

“A big part of the reason universities implement policies that target and chill student speech they disagree with is because they think they can get away with it. Universities don’t expect students to push back on these policies, they don’t expect students to know that the policies violate their constitutional rights, and they certainly don’t expect students to take unified action whether it be via litigation, running for student government, going to the press, or alerting their state officials,” she said.

[RELATED: WATCH: Ted Cruz supports free speech for students]

Similarly, O’Leary explained to Campus Reform that students who understand the First Amendment can “more effectively share their message as they fight for conservative values.”

“The First Amendment is a powerful weapon that students have at their fingertips,” she said.

Perry concluded the panel with words of encouragement for the student attendees and stated that using free speech “ensures the endurance of our democracy.”

“One of the chief virtues of our country is its diversity, but diversity is increasingly trending toward homogeneity. We don’t want that, we want diversity of perspectives as much as we want diversity of race, ethnicity, national origin, all of the things that make America wonderful,” she said. 

“We cannot see classrooms as the nurseries of democracy if we are unwilling to protect democracy from the outset.”

Campus Reform contacted Harmon and the panelists for comment. This article will be updated accordingly.

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