Q+A: Cherise Trump explains why students’ right to free speech matters

Editor’s Note: The following Q+A has been edited for length and clarity

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Campus Reform recently sat down with Cherise Trump, executive director of Speech First, a nonprofit organization that advocates for students’ First Amendments rights across the country.

In the Q+A below, Trump explains to Campus Reform how Speech First helps students stand up for their constitutional rights on campus.

Q: As someone who is fighting for the rights of students through Speech First, do you have any advice for students who are debating whether or not to succumb to what they think their professors want to hear for fear of their grades being jeopardized?

A: I always encourage students to speak up and stand firm by their beliefs. It’s important to practice defending your positions, letting others challenge you, and recognizing the flaws in your arguments. Having these debates and discussions in college are vital for students’ intellectual development. This can be particularly tricky when writing a paper for a professor or during classroom discussions.

Many of us have been in this position, wondering how to write ideological papers when we weren’t sure where a professor stood. If the professor threatens your grade because of the position you take in the paper, be sure to save the instructions you were given, as well as any email correspondence with your professor. And this doesn’t just apply to your professors. Be sure to save any correspondence with university administrators if there is a policy you are accused of violating.  

Q: How can one encourage students not to engage in self-censorship out of fear of retaliation to defend their First Amendment right to free speech?

A: The best way to do that is by example. The more students see others speak up, the more they’re going to realize they’re not alone on campus. The reason students self-censor is oftentimes because they think they are alone in their position and they will get ridiculed or worse, see disciplinary action taken against them, if they express their ideas. But if one of their peers stand up in the classroom and voice their ideas, other students will follow suit, and before you know it you have a riveting debate where everyone can learn from one another.

Q: How should students address the issue of certain speech being labeled “hate speech” on campus? What should students do to make sure their First Amendment right is not infringed on without affecting their status within a college or a specific class?

A: Universities cannot punish speech, even unpopular speech. Universities form our future leaders and must continue to be places where robust debate is encouraged, not censored. All students have a constitutional right to express their thoughts, opinions, and ideas. This concept is unique to the U.S. We should be proud of what this has led to. Keep in mind all the other times in history when America’s free speech rights allowed advocates to speak up against the institution of slavery and Jim Crow, and against the Vietnam War. Should we change the laws now because some folks happen to disagree with the content? There is a reason why the Supreme Court has stated time and time again that rules that limit speech based on its content are presumptively unconstitutional. The reason is because the Courts recognize the transcending importance of this concept over time.

Q: When it comes to free speech, students are often on “defense,” trying to safeguard their right to express themselves. How can students be proactive and be on the offensive side in trying to promote free speech?

A: Hold events on free speech, specifically to educate your fellow students on their speech rights. You’d be surprised how many students don’t know what their speech rights are; they don’t know what the laws are; they often don’t know much about the First Amendment or the U.S. Constitution. Universities will take advantage of this ignorance. How many freshman orientations include an overview of students’ legal rights? Try to educate your fellow students as much as possible. Again, try to encourage them by setting the example of speaking up.

Q: Many colleges and even students argue that censoring free speech is for the sake of security. How would you respond to that?

A: Courts have been very clear that universities can restrict students’ conduct in the interest of public safety, but they cannot restrict student speech. When you stifle speech on campus, you are harming students and holding them back. Censoring their speech with policies that discipline students for expressing their opinions will cause them to avoid discourse with their peers and professors. They avoid being challenged and avoid challenging others. They won’t develop strong convictions in an environment like this. Stifling speech will lead to a generation of weak leaders and a complacent society.

Q: Do you believe that “cancel culture” has in any way influenced the dynamic regarding opposing or minority views on college campuses? 

A:  “Cancel culture” has absolutely created an environment where students are afraid to speak up. Traditionally, campuses tend to lean a little bit more towards the left and that’s just by design in a lot of ways, but in the past, we saw much more open debate and discussion between those of different ideological backgrounds. Social media obviously has played a big role in this. A lot of the students we’ve talked to have been reported by their fellow students to their campus’s bias response team or they’ve been reported and censored because they posted something on social media. There’s a lot of fear out there and a lot of hesitation because of “cancel culture,” which is a trend that began on the college campus and has now proliferated into every industry.

Q: How is Speech First combatting bias response teams seen on many colleges today?

A: Bias response teams (BRTs) are anonymous reporting systems where students can report on one another for bias speech or activity to a team of administrators. “Bias speech” or “bias activity” is typically defined however the university sees fit and oftentimes, their definitions include constitutionally protected speech. We’ve had a lot of success combating bias response teams (BRTs) in the 5^th and 6^th circuits in our cases against the University of Texas, Austin and the University of Michigan. The courts agreed these policies violated the First Amendment rights of the students. However, they are still a big problem today. Our current cases against the University of Central Florida and Virginia Tech include those schools’ BRTs.

The popularity of the new Diversity, Equity, and Inclusion efforts on campuses has attributed to the rise of BRTs across the country. We’re going to be putting a report out at the end of the month on BRTs where we looked at over 800 schools and their reporting systems to see how pervasive and insidious they are.

Q: With regard to the ongoing lawsuit against the University of Central Florida, what is Speech First’s main objective? What can other universities learn from this ongoing case to better serve their students and community?

A: The university’s bias response team and discriminatory harassment policy are unconstitutional. Their bias response team, called the Just Knights Response team,  encourages students to report on one another anonymously for any “bias-related incident.” UCF defines “bias-related incidents” as anything that could be “offensive” or create an “unwelcoming environment,” whether it is “intentional or unintentional”. This standard is very subjective and could be applied to all kinds of protected speech. And because this is all anonymous, the accused do not get to face their accuser and could potentially meet disciplinary action by the administration. Its discriminatory harassment policy also restricts protected speech—it has very subjective and broad terminology that subjects students to discipline for a “single incident” involving speech that a listener deems to be “offensive”, rather than prohibiting harassment as defined by the Supreme Court. Those are the two issues we’re litigating at the appellate level on the 11th Circuit. The district court in this case already held that the University’s computer policy—which restricted the contents of students’ emails—was unconstitutional.

Q: With the recent controversy surrounding pronouns, what do you have to say about policies that require students to abide by someone’s preferred pronouns and what they consider to be “inclusive language” on college campuses?

A: If you’re going to a public university, they cannot compel speech. Just like they cannot restrict your speech, they cannot force you to say something against your will. Read the policies on your campus very closely, see where they start to bend the First Amendment and where they start to cross the legal boundary.

If you’re compelled to a certain viewpoint or compelled to say something that you don’t want to say, that is a form of compelled speech and could open up a path of legal recourse. I also encourage students to look at any harassment policies, read through the examples your university lists and see if there are phrases like “unwanted jokes” or a list of “offensive speech,” these are attempts at restricting your basic speech rights.

Q: Colleges are pushing for a more inclusive agenda and cornering students to fit into a certain narrative, this has bled onto students’ and faculty members limited free speech. Is there any way around that?

A: Part of the solution is professors standing up and countering that narrative. And we’ve seen this, especially in Florida, where we’ve seen professors stand up and of course, a lot of times they end up getting fired or losing their positions when they speak up; even professors who innocently try to point out the shortcomings of the woke mob’s agenda, they get fired. 

But just like with students, the more professors stand up for free speech, the more their peers and students will as well.  And eventually, administrators are going to have to take note.

Q: The definition of discrimination has grown over time and has become quite malleable. What are barriers to the Title IX Rule that separate protection against injustice from unconstitutional overreach?

A: It’s really important for people to read the Title IX federal regulations very closely because a lot of universities will change some of the words in their policies so that they don’t match exactly to the federal policy. Universities will also give examples of what harassment is and oftentimes, the examples they give are protected forms of speech and would not be considered harassment under the current Title IX rules.

Consistent with Supreme Court precedent, Title IX’s regulations state that behavior must be “severe, pervasive, and objectively offensive conduct that effectively denies a person equal educational access” in order to constitute harassment. This standard ensures that Title IX can be enforced against problematic conduct, but can’t be used to restrict so-called “problematic” or “unwanted” speech. So again, I just encourage students to really look closely at the harassment policies on their campus and see whether or not they match up with the federal standard.

Q: What are some of the most common arguments that you face when you are up against universities in court? How do you combat them?

A: Oftentimes universities will defend their bias response team as a necessary system that is mostly designed to process reports. But then why do their BRTs include a campus police officer if it’s not for disciplinary reasons? Why do they include other faculty members and deans who hold disciplinary roles on campus if it’s not really to discipline and intimidate students?

Sometimes they will argue that they don’t really enforce these policies, so the students have no reason to fear discipline. But I think we can all logically ask why the policy even exists to begin with if there is no intention of enforcing it? Students don’t know whether the university plans to enforce its policies, they generally assume that all policies will be enforced. Therefore, it’s still going to “chill’’ student speech and lead to self-censorship.