President Trump signed an executive order Thursday telling public universities like mine that we will lose our federal funding unless we do what we were already bound to do: Guard the First Amendment rights of our students, staff and faculty. But Trump isn’t going to like what that means.
We don’t yet know whether Trump’s order will turn out to be the “historic action” he has claimed. That will depend on how 12 agencies, from the Department of Agriculture to NASA, understand and enforce the order’s requirement that universities “promote free inquiry.” Will a university lose its funding if a non-student comes on campus and punches another visitor because of political differences? Will new bureaucracies be put in place to decide whether course offerings and speaking invitations are sufficiently fair and balanced? If so, will they survive the inevitable legal challenges from universities claiming interference with their academic freedom? We’ll see.
The only thing clear so far is that federal funding, aside from student aid, can be cut if private universities don’t follow their own free speech policies or if public universities violate the First Amendment. This is where Trump might end up getting more than he bargained for.
Consider the free speech controversy raging here at the University of California at Davis, the university where I teach. Last month, one of our student reporters published an article digging up statements an English professor had made several years ago. In a 2016 interview, professor Joshua Clover said police “need to be killed”; in a 2014 tweet, he had expressed thanks that “every living cop will one day be killed, some by their own hand, some by others, too many of old age.”
The university’s administration has condemned Clover’s statements as “unconscionable” and affirmed the school’s gratitude to law enforcement both on campus and in our town, where a young police officer was tragically shot and killed in January.
But the professor won’t lose his job or face any other kind of punishment from the university. Nor should he. Because that’s what the First Amendment requires. It requires state actors, like UC Davis, to allow its employees the freedom to comment on matters of public importance. Now, due to Trump’s executive order, that’s what our university’s federal funding requires, as well.
It might surprise Trump and others that statements endorsing the killing of police officer are protected by the First Amendment. But there is absolutely no legal dispute about this. The statements were hateful, but the First Amendment doesn’t have an exception for hate speech. The statements were made by a government employee, but a 1987 Supreme Court case, Rankin v. McPherson, reaffirmed that people don’t give up their free speech rights when they go to work for the state. In that case, a worker in a county constable’s office was protected for saying, after President Ronald Reagan was shot, that she hoped they’d “get him” the next time. Like Deputy Constable Ardith McPherson, Clover endorsed violence, but the First Amendment protects that, too. What the Constitution doesn’t protect is incitement, defined as speech that is both intended and likely to produce “imminent lawless action.” Clover’s advocacy doesn’t come anywhere close to meeting that high standard.
Perhaps the standard for incitement is too high. Perhaps the First Amendment protects too much. Whatever the rest of us might think about that, one person who probably shouldn’t agree is Donald Trump. After all, the First Amendment is what saved him from liability when he was sued for inciting violence against protesters at a 2016 campaign rally in Louisville. An appellate court found that Trump’s words may have made violence against the protesters more likely, but his words weren’t specific enough to rise to the level of incitement.
Speech can undeniably be hurtful. Clover’s speech has caused real pain and alarm to many on my campus and beyond. On the other side of the political spectrum, conservative speakers who have come to Davis — including Milo Yiannopoulos, whose visit in 2017 was pushed back a day because of violent protests — have made many on my campus feel as if their identity or existence were being put up for debate. Trump’s speech, at his rallies and elsewhere, has led any number of communities to feel and be mistreated because of their race, religion, sexual orientation, gender identity or immigration status. His speech has surely led to violence.
To be honest, I hate all of that speech. But the First Amendment wasn’t put in place to protect what I or any other government employee happens to like. That’s not what needs protection. As Justice Oliver Wendell Holmes wrote in 1929, the First Amendment is there to protect “freedom for the thought that we hate.”
Trump wants a First Amendment that saves him from incitement claims, guards his lies against libel suits brought against him and protects conservatives on college campuses. But when newspapers criticize him, he wants to “open up the libel laws.” And when he realizes that he is now paying universities like mine to protect speech like Clover’s, I fear his enthusiasm for the First Amendment will wane again.
Petitions and protesters, including a Republican state assemblyman, continue to call on UC Davis to fire Clover. Those who hate his thought have every right to speak out against it. But those calling for his termination are asking my university to violate the Constitution. And now, after Trump’s executive order, they are asking us to lose our federal funding, too.