Senators Dick Durbin (D-IL), Dianne Feinstein (D-CA), and Richard Blumenthal (D-CT) all have law degrees, so one could be forgiven for expecting them to possess a basic grasp of First Amendment principles and jurisprudence.
But Tuesday’s Senate Judiciary Committee hearing, entitled “Free Speech 101: The Assault on the First Amendment on College Campuses,” demonstrated otherwise. Each of the three Democrats made numerous gaffes during the meeting that exposed serious gaps in their understanding of both the Constitution and the body of largely 20th Century case law that has established and refined the Supreme Court’s understanding of the First Amendment.
“Should I be able to stop a speaker because I’m offended? No. Because I’m intimidated? I think, yes,” said Senator Durbin at one point in the hearing.
The Supreme Court has ruled that the government can only restrict speech when it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” It has never held that an individual’s subjective sense of intimidation is enough to justify government suppression of speech.
Durbin went on to say that if a speaker were found to be “menacing” or “threatening,” he would also view those as legitimate grounds to suspend a speaker’s speech rights.
Incredibly, he even suggested that a state’s concealed carry laws should have implications for whether speech rights are respected on college campuses.
“But remember my premise here: ten states with concealed carry laws. It’s not like we’re announcing we’re bringing guns. Under the law, they are allowed to carry the guns onto the campus,” Durbin said.
This remark was met with a swift rebuke from attorney Floyd Abrams, the renowned constitutional law expert called to testify at the hearing.
“That does not empower college presidents to shut down campuses,” Abrams replied.
“Have we had a situation on campus in which as a result of a speech people who have come with guns have committed felonies?” Abrams asked. “I can't think of one.”
At another point in the hearing, Senator Richard Blumenthal, while acknowledging the importance of free speech, also said there was a need for “balance,” and made reference to hate crimes and hate speech legislation.
But the constitution contemplates no such balance between free speech and censorship, a point underscored in subsequent testimony by Professor Eugene Volokh of UCLA School of Law.
“Just yesterday, the Supreme Court reaffirmed that there is no hate speech exception to the First Amendment, and that viewpoint discrimination is generally speaking forbidden,” Volokh said, referring to the Court’s decision in Matal v. Tam, released Monday.
“The government may not punish speech because of the viewpoint it expresses, whether it views it as hateful or otherwise.”
And during a fiery exchange later in the hearing, Senator Dianne Feinstein argued that universities should not have to allow appearances by speakers if the schools claim that allowing the speech to go forward safely would require more resources than the school is comfortable expending.
This claim, too, was rejected by Volokh.
“If we are in a position where our police departments are unable to protect free speech, whether it’s universities or otherwise, then yes indeed we are in a very bad position,” Volokh said.
After another of the panel’s witnesses, secretary and CEO of the Phi Beta Kappa Society Frederick Lawrence, expressed agreement with Volokh’s contention that the general presumption at universities should be in favor of speech, Feinstein quickly interjected.
“No matter how radical, offensive, biased, prejudiced, fascist the program is? You should find a way to accommodate it?” Feinstein asked, disapprovingly.
“If we’re talking about the substance of the program, not the danger and credible threats but the substance of the program, then yes,” Lawrence replied.
At no point during the hearing did any of the Democratic members of the panel attempt to argue that the Constitution should be amended, or that the Supreme Court’s understanding of the First Amendment as articulated in its precedents was in any way lacking or inadequate. Instead, they repeatedly expressed approval for various types of speech suppression grounded in no kind of recognized legal standard or principle whatsoever.
The confusion even extended to the Republican side of the aisle. Senator John Kennedy (R-LA) suggested in his remarks that speakers who use offensive or hateful language ought to be prohibited from speaking on campuses.
“I don't want a speaker to come to a university and use a racial epithet, repeatedly,” Kennedy said.
Toward the end of the hearing, Abrams summed up the philosophy of the First Amendment succinctly, in a seeming rejoinder to some of the views expressed by the panel.
“It is important that the broadest range of views be heard, and that the public be permitted to pass judgment.”
“It’s tempting—I mean, I get it—to say that this view or that view is so offensive, so outrageous, that I’m serving the public interest by shutting it up,” Abrams said.
“The First Amendment sends us in precisely the opposite direction. It requires enough humility to accept the proposition that I’m not the decision maker, Congress is not the decision maker, but that the public is the decision maker.”