Monday, February 17, 2014

Are Universities Special For Free Speech Purposes?

By Mike Dorf

Not long ago I received an inquiry from a Buzzfeed reporter about a bill in Congress that would pull federal funding from universities that participate (or whose sub-parts participate) in the boycott of Israeli universities. I'll come to the specifics in a moment, but first a few preliminaries.

Although I disagree with many of the policies of the Netanyahu government, especially with respect to the occupation of Palestinian territory, I also oppose academic boycotts of Israeli institutions. For one thing, the targets of such boycotts tend to be the sorts of Israeli academics who themselves are highly critical of Israeli policy, but more importantly, I think that the threshold for an academic boycott needs to be especially high.

It's one thing for a university (or other entity or an individual) to decide not to purchase goods on ethical grounds. Thus, I think it's perfectly sensible for student activists who oppose sweatshop labor to campaign to remove insignia wear manufactured by sweatshop labor from campus stores, both so that they don't participate in the exploitation occasioned by sweatshops and to put pressure on suppliers to find other sources. Like reasoning accounts for my own veganism. Accordingly, although I don't personally support BDS, I think it's perfectly legitimate for activists who do support it to urge universities to use their purchasing power and the power that comes with their endowment portfolios to try to pressure Israel--or any other country or a private firm or whatever--in that way.

But academics who boycott or preclude speech by other academics simply because those other academics are affiliated with universities in countries whose policies (or whose existence) the boycotters oppose, act contrary to the value of academic freedom. It seems to me that even very strong commitments generally ought not to be expressed in this way by academics. To use my own case as an example, while I don't eat or wear animal products, I wouldn't support a university boycott of speakers who do--much less a boycott of speakers who themselves don't eat or wear animal products but come from countries that promote such products. I don't want to say that academic freedom prevails in conflicts with all other values, but there does need to be some very special justification for a contrary result in any particular conflict. I don't see the supporters of the boycott of Israeli universities as having offered (anything close to) such a special justification, even assuming one agrees with their views about the Israel/Palestine conflict.

Having said that, I also oppose the bill to de-fund American universities that participate in boycotts of Israeli universities. The bill says, correctly in my view, that the boycotts violate academic freedom. But the bill itself violates academic freedom because part of academic freedom is the freedom (within some bounds) to define academic freedom (as I discussed here).

So much for my personal opinion as a citizen of academia broadly. What about my area of expertise? The Buzzfeed reporter who contacted me asked whether I thought that the bill is unconstitutional. I said that it was an undecided question under current law. Here is how she quoted me in the story she then wrote:
“As a general matter, government has considerably greater latitude to deny funding to speech and speakers with which it disagrees than it has to censor speech directly,” said Michael Dorf, a constitutional scholar and law professor at Cornell. “However, there are First Amendment limits to the funding power. Under the so-called ‘unconstitutional conditions’ doctrine, efforts to coerce — rather than merely to avoid funding — can run afoul of the First Amendment. Moreover, the Supreme Court’s cases have recognized that the First Amendment restrictions on the funding power are more robust when the entity to be funded (or defunded) is a university.”
I did indeed say all of that, as I was thinking about Rust v. Sullivan, the Supreme Court case that upheld the so-called "gag rule" that forbade certain federally funded doctors from talking about abortion. There the Court distinguished the power of government to choose not to fund an activity from its lesser ability to censor.  Even then, it went on to draw the two distinctions I noted: (1) The unconstitutional conditions doctrine; and (2) the possibility that there are special limits on the ability of government to control speech via funding when the funding recipients are universities.

Despite the fact that I did not draw a conclusion about the application of these or other principles to the anti-boycott bill, the story may give the impression that I was concluding that the bill violates the First Amendment. It does so by contrasting my view to a veiw expressed by Prof. Volokh. Right after quoting me, the story continues:
But Eugene Volokh, a law professor at UCLA and author of the Volokh Conspiracy blog, said he thought the bill was likely constitutional. 
“I think the bill would indeed be constitutional,” Volokh said. “Grove City College v. Bell (1984) held that the government may, despite the First Amendment, attach a no-sex-discrimination condition to government funds. Christian Legal Society v. Martinez (2010) held that a public university may, despite the First Amendment, require all groups that receive university benefits to accept all students, without excluding anyone. Likewise, the government may require recipients of federal funds not to discriminate against Israeli academics or institutions (or, more narrowly, not to boycott such academics or institutions).”
The story thereby implies that Prof. Volokh is disagreeing with me, whereas I didn't say that the bill is unconstitutional.

So, do I think the bill is unconstitutional? I wish it were but I'm not sure the case law can be made to support that result. I get to that result by a somewhat different route from Prof. Volokh, who expounded his view at greater length in a blog post here.

At first blush, Prof. Volokh's analysis seems beside the point.  In both of the cases invoked in the Buzzfeed quote, what was at issue was the application of a general-purpose nondiscrimination policy, rather than a law that specifically targeted speech. The Court did not consider a claim of academic freedom in either Grove City or Christian Legal Society, and such a claim would have been particularly weak in Christian Legal Society because the university was the source of the "all-comers" rule and students do not traditionally have academic freedom (although a well-run university will, in my view, give them a great deal of expressive freedom).

Now, of course, Prof. Volokh knows all of this, but as he explains in the blog post, he regards the anti-boycott bill as akin to the nondiscrimination rules in Grove City and Christian Legal Society in that it would forbid American universities from denying access to Israeli academics. As he notes, the bill would not target speech based on content or viewpoint.

I think that's a plausible view but I disagree. The bill does not say that American universities must be open to persons from all countries or even that they must be open to Israelis. It forbids boycotts. As the Court's labor cases and other cases recognize, however, a boycott has substantial speech elements. (See NAACP v. Claiborne Hardware Co.).  Accordingly, a law that forbids a boycott is a law that targets speech, not one that forbids or requires conduct that happens to infringe speech incidentally.

To say that a funding bill targets speech is not to say that it is necessarily unconstitutional, however, as Rust and other cases indicate. Rust left open the possibility that the government cannot use the funding power to control academic speech as readily as it can use the funding power to control the speech of other actors, and the issue remains open. As recently as 2006, in Rumsfeld v. FAIR, the Court again declined to decide whether the funding power is subject to greater restrictions when the funding recipient is a university than when it is some other actor. So I continue to think I'm right that this is an open question.

How should the open question be resolved? As an academic myself, I have a professional interest in special protection for universities, and I certainly can give hypothetical examples where the government's use of the funding power would be highly problematic. Suppose Congress were to withhold federal funding at any university that taught evolution in its biology department or that taught that man-made climate change is real in its environmental science department. Does the funding power really go that far?

I would like to say no, but it's hard to reconcile a universities-are-special approach with how the Court's cases treat journalists. Even though the First Amendment specificially protects the "freedom . . . of the press", the Court has said that reporters have no special right to shield their sources (Branzburg v. Hayes) and faces no special hurdles when it seeks evidence from a newspaper's files (Zurcher v. Stanford Daily). If the institutional press is not special for First Amendment purposes, then it is difficult to see why universities are.