My Testimony to the Texas Senate Committee on State Affairs



I am a trustee at the Lone Star College System.  I was chief of staff to U. S. Supreme Court Chief Justice Warren Burger, working for or with the Chief Justice for nine years.  I was also Staff Director of the presidential Commission on the Bicentennial of the U. S. Constitution.

The bottom line is this:  If a public institution takes government funding, it must comply with the First Amendment and free speech.  A pervasive misconception, especially by many students, is that so-called “hate speech” is not protected by the First Amendment.  But it is.

I cite a few Supreme Court decisions:

Justice Antonin Scalia observed:  “If you stop speech that hurts other peoples’  feelings, the First Amendment will become a dead letter.”

When Justice Samuel Alito was an appellate judge, he opined:  “There is no ‘harassment exception’ in the First Amendment’s free speech clause.”

In Matal v. Tam, “viewpoint discrimination”–against insensitive viewpoints–is unconstitutional.

Justice William O. Douglas in Terminiello v. Chicago wrote the majority opinion, stating:  “The function of free speech under our system of government is to invite dispute.  It may indeed serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.  Speech is often provocative and challenging.  It may strike at prejudices and preconceptions that have profound unsettling effects as it pressures for the acceptance of an idea.”

So what are university administrators to do in an environment of heckler’s veto and threats of violence and retaliation?

They must, with certainty, ensure that free speech is protected on campus, especially in the heat of criticism and protests against so-called “hate speech,” which is often loosely, arbitrarily defined and politically oriented.  This requires administrators to have honesty and, most of all, courage. “Courage,” observed C. S. Lewis, “is the most difficult virtue because it is all virtues at the testing point.”

Solutions may have to come down to what the University of Wisconsin did.  In October, Wisconsin codified a free speech policy that would suspend students after their “second violent or otherwise disorderly misconduct that materially and substantively disrupted the free speech of others.”  After a third time, the student would be expelled.  No more “heckler’s veto.”  No more acquiescing to threats or violence.

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