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.


egarber said...

Is there a foreign vs domestic dimension in any of the precedent? Suppose the federal government pulled funding from Cornell because it boycotted say, the University of Georgia over differences regarding the Palestinian question? Is Cornell entitled to more deference here than in the international arena, because Congress has unique latitude in foreign relations?

Probably not, I'm guessing. But the question might be worth considering.

Keith K said...

I find the case very similar to the Solomon Amendment (Yale was boycotting, in a sense) any orgs that wouldn't accede to their non discrimination pledge.

Wouldn't the same funding stick apply?

Michael C. Dorf said...

Keith: The Solomon Amendment case is Rumsfeld v. FAIR. As I note in the post, the SCOTUS specifically declined to rely on the funding aspect of the case there, thus leaving the issue open.

Eric: I don't think that this would make a difference with respect to the question of whether the law should be deemed an infringement on speech. I suppose that the strength of the government interest might vary in the two cases, and that this could be relevant to whether the government has a compelling interest in overriding universities' free speech.

Joe said...

I think the bill a bad idea but as a constitutional matter, it brings to mind a possible bill where let's say fed funds rest on something like whether a university does not boycott some (insert obviously repressive regime here -- maybe South Africa under apartheid).

If the feds can selectively provide foreign aid to a country, it can promote a similar interest when funding other things that is connected to furthering that interest.

Universities are special but the question is how special. Funding can be based, e.g., on the college involvement in something that some colleges might find ideologically problematic.

But, Rumsfeld v. FAIR very well can be distinguished. There the government wanted equal time for military recruiters and noted how they clearly weren't part of the university & the university could still voice opposition to the policy. Here Congress would selectively want the universities to associate with a particular group (Israel universities) or lose funding.

JHW said...

Two comments:

1. Rust v. Sullivan doesn't seem on point. Rust merely required funding segregation; the reason the condition wasn't an unconstitutional condition is that it merely prohibited the use of federal funds in programs that promoted abortion, it didn't prohibit recipients of the funds from promoting abortion in general. The bills under consideration with respect to the academic boycott of Israel seem much broader in their effect.

2. Pushing in the other direction, how much does a distinction between a ban on boycotts and a non-discrimination rule matter? To the extent a boycott is singled out from other kinds of failures to abide by a non-discrimination rule, I agree that the bill can be understood to target speech. But I bet its sponsors would be entirely happy to convert it into a funding condition requiring a "no discrimination against Israeli academics" rule. Does that dispose of the First Amendment problem?

Michael C. Dorf said...

In response to JHW's point 1: I wasn't saying that Rust was dispositive here. I cited it only as the source of the two caveats.

JHW's second question is tricky because even a non-discrimination rule might be targeting speech. That is, the law presumably wouldn't merely say that funding recipients can't discriminate against Israelis; it would say that they can't discriminate against Israelis with respect to speaking at conferences, etc. A broader nondiscrimination rule might get around this problem but it's not clear that Congress would want to enact such a rule. Would it forbid a state university to offer lower tuition to in-state residents than to Israelis? Now, you can say that lower tuition doesn't discriminate on the basis of Israeli citizenship, but the case law is fuzzy on this point. The much-criticized Geduldig case makes that move with respect to gender, but the Dean Milk case rejects that sort of move with respect to interstate commerce.

All of which, I think, helps establish my core point that the law here is unsettled.

David Ricardo said...

Okay, let’s look at what the proposed law actually states.

“(1) CRITERIA.—For purposes of this section, 26 the Secretary shall consider an institution of higher education to be participating in a boycott of Israeli academic institutions or scholars if the institution, any significant part of the institution, or any organization significantly funded by the institution adopts a policy or resolution, issues a statement, or otherwise formally establishes the restriction of discourse, cooperation, exchange, or any other involvement with academic institutions or scholars on the basis of the connection of such institutions or such scholars to the State of Israel.”

Obviously this is restriction on speech, how could anyone otherwise interpret the language of this bill.

But the law does not prohibit the speech, which would be prima facie violation of the Constitution, it merely withdraws federal funding. This then leaves the question of the relationship between money and speech. And what the discussion thus far on this Forum has left out is the movement by the Supreme Court to make money equal to speech.

In Citizens United and similar cases the Supreme Court has made clear that restrictions on political spending is a violation of free speech because in the view of the majority, money is speech. Given this development in the regulation of political campaigns, and the upcoming Supreme Court decision that any restriction on funding/spending for political speech is unconstitutional it is almost impossible to see how this bill passes Constitutional muster with the current Court. Under this bill the government is using the power of its purse to restrict speech and if money is speech ala the Supreme Court this is clearly a violation of the 1st Amendment.

Of course that conclusion assumes consistency by the Court, that it applies the same standard to speech that it likes (corporations and wealthy individuals spending unlimited amounts to elect conservatives) to speech that it does not like (universities that receive federal aid participating in or associating with the boycott of Israel). Given the fact that the conservative block on the Court votes their personal preferences rather than adhere to consistency it would seem that the above mentioned law would at least have the support of Justices Scalia, Roberts, Thomas and Alito.

So yes, Professor Dorf is correct in saying the situation is uncertain. But that is not because of the law and the Constitution, it is due to the fact that some of the current Justices see their role on the Court as supporting their own personal agenda, be it anti-abortion rights, supporting unlimited spending by conservative groups, anti-homosexual bias and the like.

Mr. Dorf is also correct in that universities are not special. But they and their employees do have the same rights as everyone else which is the right to engage in speech that is offensive to the rest of us and not suffer punishment by government. If those who believe this legislation is Constitutional then they must also believe that the federal government could deny Medicare or Social Security or other government funding to individuals who support a boycott of Israel. Could it and if so what are the limits, if any, on the ability of government to deny funding based on personal speech?

Joe said...

The bill's text is interesting.

Along with foreign policy concerns regarding Israel, it purports to promote academic freedom. This along with differences in the level of coercive effect suggests differences between targeting a single individual's Medicaid benefits because of an individual's boycott.

The fit/effect is different. So, no, one "must not" think both can be allowed to think this provision constitutional.

As to JHW's comment, the breadth of the proposal is suspect, since ALL federal funding here would not have much of a relation to the boycott, but the boycott directly affects the basic goings on of the college. It's unclear what federal funds are not somehow enmeshed in the college related activities that the boycott would affect. The wording might be too broad, but maybe not as broad as one might think.

David Ricardo said...

The law as proposed does target individuals. If the Cornell University French Club, with its three members and largely funded by the University (and no, I have no idea if Cornell has a French Club and if it does whether or not it is funded by the University, it’s an example, just bear with me here folks) adopts a policy in support a boycott of Israel under this law Cornell would lose all federal funding.

And yes, the purported goal is admirable, academic freedom but the 1st Amendment does not make exceptions for admirable objectives of restricting speech. The objective of regulating campaign spending is to promote fair and equal elections and to support free speech based on the concept of everyone having at least some access to the marketplace of idea and no one having the ability to monopolize or dominate the debate, but the Court has rejected that rationale. And so a consistent Court would reject this law.

The issue does relate to individuals and government benefits. The question here is whether or not the government can restrict speech by the withholding of government funding that absent the offensive speech would otherwise be provided. If the answer is yes for institutions, if the answer is yes for organizations of individuals supported by the institution then the answer must be yes as to whether it applies to individuals. We are dealing with a principle.

Personally I find the boycotting of Israel by institutions or individuals because of the Palestinian situation to be abominable, bordering on and maybe crossing the line between advocacy and virulent anti-Semitism. But having to accept the Court’s movement towards equating money and speech I see no Constitutional rationale for the federal government to restrict that behavior through its power of the purse, regardless of its motivation or whether or not the targets are institutions or individuals.

Anonymous said...

Professor Dorf is correct but only because SCOTUS precedent is ridiculous. SCOTUS is unabashedly results focused when it comes to free speech and there is zero intellectual consistency and most of the current law in this area is untethered from the text of the Constitution.

I wouldn't dare to ever predict what SCOTUS would do with free speech case. Might as well go to Vegas and gamble on who wins the Superbowl.

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