The Descent into Free Speech and Originalism Madness at the University of Florida

For decades, I have argued that the United States Supreme Court has over-protected speech at the expense of other important values. Whether it be allowing the wealthy to control our elections because "money is speech," defining "true threats" much too narrowly, or pretending that mandatory public sector union dues are forbidden by the First Amendment as compelled speech, our justices since the middle of the 20th century have zealously guarded the right of people to injure others through the spoken and written word far more than any other country in world history.

Of course, free speech is crucial to any free nation. But there are other important values, such as equality and democracy, that judges must protect as well. But not here, not really.

On Saturday morning, the New York Times ran a story about a student at the University of Florida, in a class taught by a federal judge, who won a best paper award for arguing that "We the People"  includes only white people, that people of color should not be allowed to vote, and, among many other things, that judges should rule the Reconstruction Amendments unconstitutional. The judge refused to respond to the Times. As one can expect, bedlam followed, and eventually the student was suspended for writing on X that "Jews must be abolished by any means necessary." He is suing. He might win.

But I want to focus on the judge and the Interim Dean of the school, neither of whom thought that the book award was tantamount to something terrible. Where would they get that crazy idea? The First Amendment does and probably should protect robust free speech on public campuses like the University of Florida. But does that mean anyone can express any idea, no matter how pernicious and dangerous, without fear of censure, much less being rewarded for racist beliefs? Universities across the globe have free speech without allowing such hate and loathing to be expressed directly at minority groups.

The usual response to my ranting about the over-protection of speech by our judges is two-fold. First, there is the slippery slope argument. Where do you draw the line? How can we distinguish protected speech from unprotected speech? But judges draw lines regularly when it comes to important constitutional rights. We expect them to do their best and act reasonably. Our current Second Amendment jurisprudence is replete with arbitrary lines based on tendentious views of long-ago history, not even contemporary values.

Second, I am often told scary stories about other democracies where people are fined, imprisoned, or both for displaying hateful political symbols or just expressing extreme views that would be protected in America. Fair, but no country is perfect, and free speech protections are messy.

Perhaps the student had a right to express his views this way (though not in my fantasy world). But what was the federal judge thinking when he awarded the student a best paper award? Well, it turns out this judge is the same judge who personally invited me to an originalism symposium at the University of Florida last October--Judge Badalamenti. I wrote about that symposium here. And, the course in question was a course on originalism. 

So, it all comes together--even though the founding fathers would never have thought that free speech protections apply to a public university (the text refers only to "Congress"), and even if they did, they would have thought that after-the-fact punishments for speech were fully constitutional (just no prior restraints). The school's Interim Dean defended the award and the student's right to express his heinous views on free speech grounds. A sincere originalist (like the judge) should not find a basis for that conclusion in the Constitution. (The Interim Dean's scholarship does not appear to be especially originalist, and she was a clerk for Justice Stevens, so it seems doubtful that she is a committed originalist.) In any event, even if the speech could not be punished or even should not be punished because of free speech principles, it most certainly did not and should not have to be awarded. The judge/instructor and the law school also have a right to free speech, which they could and should have exercised by refusing to effectively endorse the student's outrageous views.

Unlike originalism, which should have only a minor role in our country's jurisprudence, free speech should play a major role. But insanity is insanity. And a public university allowing a federal judge to reward a student for arguing that we should return to a world where "We the People" means only white people is true and pure madness.

Full stop.

--- Eric Segall