Much of American journalism, which was supposed to revert to its historic role as a check on those in power after Donald Trump left town, is now devoted to shutting down the commercial lifeline of other media. Think of the precedent for the next populist Republican President who might declare pro-choice publications “deadly.”
~Wall Street Journal Editorial Board/January 29, 2021
To the WSJ editorial board, I say, “I don’t have to think about the next populist Republican president. Did it only take nine days for you to forget the last GOP chief executive declared the media to be ‘the enemy of the people?'” Furthermore, is the WSJ saying Congress has now ceded its Article I powers under our system of checks and balances to the media? Or federal courts expect journalists to decide when a president operates outside constitutional boundaries? NO! The media is not a check on presidential power. Its traditional role has been and continues to be a guardian of the truth. Just this morning, the New York Times fact-checker Linda Qiu reported three instances during his first week in office Joe Biden misrepresented or overhyped empirical data. Sounds like she’s doing her job. Likewise, when one media outlet calls out lies from a counterpart or rival outlet they are doing the same thing, fact-checking those who are disseminating information, regardless of the source.
But that’s not what I came here to talk about. Instead, I wish to focus on how those who hide behind the curtain of “moral equivalency” (sometime referred to as “what about..ism”) have hijacked the First Amendment and represent a greater threat to free speech than those accused of promoting the “cancel culture.” And it is the responsibility of those who have become the intellectual voice of free speech on college campuses and the press to call out these insurgents. Not doing so destroys any chance of expanding their audience.
First, a little history. The free speech movement received national attention with adoption of the Chicago principles, so-called because they are based on the findings of a 2014 report issued by the University of Chicago’s Committee on Freedom of Expression. (Yes, the same university whose School of Economics continues to push supply-side economics and trickle-down theory as helping the middle class and balancing the federal budget despite 40 years of evidence to the contrary.) A campaign to promote adoption by other institutions of higher learning has been led by the non-profit Foundation for Individual Rights (FIRE). As of August 2020, FIRE reports 76 U.S. colleges and universities have “adopted or endorsed the Chicago Statement or a substantially similar statement.”
Before proceeding, let me stipulate there are valid concerns about free speech on college campuses. But let’s be clear, there is a distinction between controversial opinions and, as Kellyanne Conway would say, “alternative facts.” One need only read the inscription from John 8:32 above the Upham Hall arch at Miami University where I taught for nine years. It does NOT say, “You shall know the OPINION, and the OPINION shall set you free.” It refers to the TRUTH as the source of personal and professional liberation.
In more practical terms, there can be a difference of opinion about whether slavery was an essential factor in the early development of the United States as a commercial power, but you cannot deny there was slavery. We can argue whether there was justification for the 2003 invasion of Iraq, but Saddam Hussein’s role in 9/11 cannot be part of that conversation. As so often quoted, the late Senator Daniel Moynihan declared, “You are entitled to your own opinion, but you are not entitled to your own facts.”
Fast forward to two more recent examples. On January 23rd the Washington Post reported on the backlash when former Trump official Richard Grenell was hired by Carnegie Mellon University. Reporters Marisa Iati and Lauren Lumpkin wrote, “Criticism grew in November when Grenell falsely claimed that voter fraud had cost Donald Trump a second term.” A lie repeatedly debunked in judicial opinions, statements by state and federal officials and via media investigations. If FIRE is concerned about the “cancel culture,” you cannot defend someone who repeatedly attempts to cancel the truth about the 2020 election.
And of course there is the king of alternative facts Donald Trump. To understand the extent to which Trump exceeded any protection under the First Amendment, one must study the history of the phrase, “Shouting fire in a crowded theater.” I suspect you will be as surprised as I was.
This caveat to the First Amendment protection of free speech appears in Justice Oliver Wendell Holmes, Jr.’s decision on behalf of a unanimous Supreme Court in the 1919 case Schenck v. United States. The justices found the defendant’s constitutional rights were not violated when he was charged with undermining the war effort (WWI) by opposing the draft. However, the story does not end there. I was not aware the decision was partially overturned in 1969 in Brandenburg v. Ohio. This time the court found “yelling fire” was not enough. Inflammatory speech (pun intended) had to directly “incite imminent lawless action or produce such action.”
Therefore, for U.S. senators who have not taken their Prevagen in the past 24 days, let me again remind you using the words of GOP outcast Liz Cheney, “The President of the United States summoned the mob, assembled the mob, and lit the flame of this attack. Everything that followed was his doing.” And to FIRE and other advocates of the Chicago Principles, I encourage you to read Trump’s January 6 speech to the assembled crowd on the Washington ellipse in its entirety. Because Trump’s lawyers are going to argue he was only exercising his constitutional right to free speech. And yet the speech is peppered with debunked claims of voter fraud and conspiracy theories. He yelled “fire” when there was none, and within an hour, that false claim “produced lawless actions.”
If the leaders of the free speech on campus movement want me to join them when their arguments are valid, they need to push back against those who scream “I have a right to speak out” if the content consists of demonstrable falsehoods or when they act criminally under the Brandenburg v. Ohio doctrine. Therefore, I look forward to FIRE and other adherents to the Chicago Principles acknowledging the difference between apples and oranges during the impeachment trial or if and when the alleged insurrection conspirators are tried in court. And issue a public rebuke when Trump’s legal team claims “the big lie” that incited an attack on the U.S. Capitol was merely an exercise of free speech.
To not do so, severely damages their credibility and motivation. Because the Chicago Principles would undermine academic integrity because they send a message universities and colleges cannot demand faculty, students and guest speakers ground their theories and opinions in empirical evidence. In which case, Miami University might as well sandblast the words above the Upham Hall arch.
For what it’s worth.