For us he is a 1989 graduate of emory law school. And he was managing editor of emory law journal and got the enemiry University School of law merit scholarship. After that, howard clerked for to years for judge William Hutchinson on the third circuit. Another thing that is very important about Howard Bashman is he is the founder of the blog how appealing all about the business of the appeal at the federal appeals courts, and i remember back in 2002, im one of the bloggers on a blog called the conspiracy which started april 10, 2002, and that was the very beginning of the Public Policy and Legal Affairs blogs. A popular blahing instapundit had just been up and running several months, started in august of 2001, vola conspiracy pie, and another blog with an opening sentence that win Something Like hello and welcome to the first day of the nations first appellate blog, and as hauls an one also hauls been the best place to go to get muse on what is going on in the Appellate Courts and find out the most exciting appellate cases coming down, and all of these similar things. So ever since 2002 howard has been very useful to me in my blogging career and we have over in each each since then. Now howard will talk to us about free speech on university campuses. [applause] thank you for that very generous introduction, and for the record it was, among other things, thanks to a link from your blog to my blog that my blog began to develop a readership that today supposedly includes even some u. S. Supreme Court Justices who are willing to admit to it. On chance they read my blog every day, which is just an aweinspiring thing to have sun sway but they also read the volaconspiracy for the record as well. Thanks to the emory University School of law and to its Federalist Society student chapter for inviting me to be here today to deliver these remarks. I have been fortunate to deliver remarks to a range of Federalist Society student chapters from the Harvard Law Schools chapter to the thomas m. Cooley chapter in michigan, and many more in between but its just a special honor to come home to my alma mater. I was hoping for warmer weather, but im happy to be here anyway. Turning to the topic of my remarks today, let me begin with some good news and some bad news for you, regardless of where you stand on the issue of free speech on campus and student speech codes. In 2016, this year, for the first time ever, since the Organization Fire which stands four foundation for individual rights in education an organization headquartered philadelphia, a number of College Campuses that have received that organizations most negative antifree speech rating has dipped below 50 , to 49. 3 . That marks for the present time eight years during which the number of colleges and universities that have been rate has continued to decrease. Eight years ago that number stood at 75 . Lest you worry, however, Emory University remains part of the 49. 3 receiving fires mose negative campus free speech rating. Now if you oppose those restrictions on free speech, before you feel too happy about the fact that the trend has been heading in a positive direction, you should keep in mind that there are other statistics that give rise to a reason for great concern. Last october, an organization at yale, reported on the result of survey of College Students which found that 51 of College Students favored campus free speech codes, and 72 favored bringing disciplinary action against students or faculty members who use offensive language. Similarly, in november of last year, the pew research center, another very highly regarded polling organization, reported that 40 of people in the millenial age group, from 18 to 34, believe that government should be able to punish offensive speech. That was the largest percentage of any of the generational groups surveyed. Now, of course in recent months, campus protests and News Coverage have placed these issues very much in the spotlight of public attention. How have we gotten to this point . Where instead of clam mooring for a row clamoring for a robust and open exchange of ideas and unfettered free speech, students are instead calling for safe spaces, and trigger warnings, and demanding that socalled microaggressions and cultural appropriations be avoided. Indeed, some universities, including a number of Public Institutions, have created socalled free speech zones which happen to be conveniently located very far away from where anyone else ever happens to be. So that ordinary students who might be offended or have their feelings hurt by the Free Expression of their fellow students, dont have to hear or see what is going on. Now, appreciate as much as anyone the need to be considerate of one fellow human beings and more to the point, fellow students, and its also very important in educational institutions to have an atmosphere where people can learn. So atmosphere conducive to learning is very important. At the same time, however, a central part of the liberal arts experience, maybe the central part, is being exposed to new and perhaps even unpleasant ideas and broadening ones forwarding of others as a result. Prohibiting the discussion of unpleasant ideas does not cause those unpleasant ideas to cease to exist. Instead theyre just pushed beneath the surface where perhaps they will bubble back up in even more unpleasant ways than if they are the subject of discussion. So again, how did we get to where we are today in the current state of campus free speech and student speech codes. In the view of many, part of it and perhaps the large measure is the fault of the fact that children today are indoctrinated into the culture of Political Correctness before they even arrive at college. Theres what is knowns a the bubble wrapped generation. You bubble wrap something because you dont want it to get hurt. And helicopter parents who fly in to protect their children from any possible offense that could arise. And that insulates children from the otherwise rough and tumble world of controversial ideas that exist in real society. Moreover, instead of colleges being run by faculty members as they had been many years ago now, we have the atmosphere where in fact most colleges are run by what is call the bury bureaucratic class which happen to be administration with less newspapering of the value of free speech and not surprisingly, lawyers perhaps are partially to blame, and i regret to say that today. Theres what is known as the Risk Management movement, which has arisen and earns money for itself by giving advice to University Administrators about how to avoid lawsuits, and the concern is that more lawsuits would be brought by students in the absence of these free speech codes if free speech was freely allowed, than are being brought as a consequence of having these free speech restrictions. Now, aside from the troubling news that todays young people do not appreciate the value of their First Amendment rights as much as earlier generations have, there has also been a notable political shift in society. On the one side, you have perhaps conservatives and libertarians and then the very extreme left, if i can call it that, consisting of the American Civil Liberties union, which continue to speak out for unfettered College Free Speech rights. But many socalled liberals, unfortunately, are more than ready to trade the rights to campus free speech for a smiley faced world, where at the expense of trying to keep everyone happy, unpopular ideas are forced underground instead of being considered and debated. Even the son of seventh circuit judge richard a. Posner speak offering the university of chicago law professor eric posner has become a proponent of campus free speech restrictions. According to professor posner, todays College Students are too immature. Free speech can still occur offcampus if i cant occur on campus. And in a bit of the posner familys trademark law and economics analysis, students can take into account an institutions free speech availability in deciding where to go to college if that is important to that student. Now, as the father of a 20yearold son myself, i think that professor posner overstates the immaturity problem. He also, i believe, does not have a firm grasp on how competitive todays College Admissions process is. In my experience, evaluating a schools free speech rating and free speech policies tends to be very low on the list of things that people consider in decide where they wish to go to school. And one of the professor posners other suggestions is that you can go to a State University or Public College as opposed to a private college if free speech really matters to you. But that doesnt seem necessarily to be the answer because if you look at the fire organizations statistics, Public Institutions arent much better at recognizing free speech rights than are private institutions. Its interesting to note that over 150 years ago, british political philosopher jon Stewart Mills in his famous work titled on liberty offered four reasons why one should favor robust free speech rights. Those four reasons resonate as much to me today as i hope they resonate to people at the time that is say was written. The first reason is that an opinion compelled to silence could in fact be true, and to deny that fact, as soon as our own infallibility which should not be assumed. Secondly in mills point of view, even an ereason news viewpoint could contain a portion of the truth, just as a prevailing opinion is rarely or never entirely true itself. The third and fourth reasons are also very important. The third reason is, that if an opinion is not challenged, and does not need to be defended, then people will hold those opinions without appreciating the reasons why theyre viewed to be true. And, fourth, he was concerned that unchallenged opinions could ultimately turn into what he described as dogma, meaning that it would be at risk of perhaps devalued or discarded themselves because people didnt appreciate why they ever existed in the first place. Although mills originally published his essay in 1859, that is essay still has much to teach us today. With regard to offensive or unpopular speech arranges university of all places can and should provide the atmosphere where the reaction to such speech is not to silence or punish the speaker. But, rather to respond with speech to the opposite effect, and to allow the speaker and listeners to hear and understand the competing viewpoints so they can decide for themselves what is true and what should be believed. Before durning to the future it is necessary to say, just one more thing about how we got where we are today. From time to time expressions of others is a small price to pay for the rights of liberty and freedom that have produced this society in which we live today. [applause] is. So i just have a couple of comments i am not in fundamental disagreement with anything that you said but 1. That we are both interested in i have been here seven years and i am glad to say that at least in the law school we are fairly insulated and dont go across the street often but at least i have always felt that freespeech and open expression rights have been very robust. Admitted the dont have my finger in everything that goes on but being involved with the Federalist Society that is one candidate is somebody wanted to shut anybody down the federal the society would have spent a good candidate. I dont think anyone has tried to shut us down in fact, there was one incident that happened a few years ago an organization they used to be called the Alliance Defense fund now is a maya as defending freedom and they have done a lot of things one thing is to take a strong position against gay marriage and they also into litigation on religious freedom issues we had a person who came to talk about the religious freedom case he litigated Second Circuit maybe you have heard of it basically it new york they have all these Public Schools then empty during the weekend and there was a policy to make them available for outside organization to use for reading spaces but they decided they didnt want churches using the schools during nonbusiness hours and days sued on free exercise ground you cannot discriminate against religious people and i think theyre absolutely right and that i personally with their religious Freedom Litigation they do excellent work that was happy to have them come talk about the case of our number of students found out they were coming and got upset because of the gay marriage work and i think happened was an ideal resolution of the issue that there were students from the lgbt organization now what they were handing a leaflets explain these to explain the position they came to the meeting with a rainbow pens or shirts and were ready to challenge the speaker if he said anything about gay marriage because he did it because it wasnt about that and a good time was had by all. Now would with the this is not a great example because greater example is what if you wanted to speak out against gay marriage will what happened i dont know but but i was never in doubt that we would have been allowed to go forward and the deed would have supported us in rees would have still had a heated but civil discussion which exactly the way these things ought to happen. You mentioned the of lawyer culture and mismanagement and one interesting thing that has happened recently i have a number of friends to rob a the faculty at Harvard Law School so just by reading there facebook posts i have become aware there was a documentary called the Hunting Ground about rape and Sexual Assault on campus and a number of professors who spoke out and said this documentary that to position strongly in favor of of victims with the number of misstatements so the makers of the documentary had a statement that was published that said the fact that these professors were speaking out against the truth and reliability of the movie created a high style environment in the eighth person they think that means they are mad but that is the Nuclear Option because that is the trigger word related to harassment laws so few can showing your workplace there is a hostile environment in court that can lead to damages for the work place are for the university or what ever. So the etf that people could say rapists Sexual Assaults are bad but still we have to correct the mistake in saying carry about due process the idea that they can disagree where to draw the line between helping victims with the Due Process Rights universities are all about that the batf that people would turn to using the above lot to either base and were severely disincentive bias by means of damages judgment i think is antithetical to free speech and open expression values and is driven by a Legal Development and harassment law that even now cited university is in potential of the First Amendment but this sort of thing where it encourages universities especially private universities to take the attitude of cya to adopt the least offensive to everybody perspective. So i think that plays the strong role to cut down on speech much like worse workplace harassment law if you are the private employer sort if you dont really care if your employees tell jokes around the water cooler or put a little meme around the workplace now somebody says hostile Work Environment than that forces them to adopt policies nose jokes or knows of expression and so one that is driven by the need to protect yourself from damages judgments. And i agree in that you identify a the modern day defenders of free speech on campus on the one hand the Federalist Society camps as strong bassoons of the left because that is not a left right issue but a liberal and Classical Liberal issue so liberal left and liberal right are the errors of the free speech and open expression idea on the other hand, those of the parties you want to cut down loans beecher on the left and on the right to not just on the grounds would it be nice to live in a bubble and not be offended because it makes us feel bad that on the left is a militant view that critiques free speech on the ground that contributes to power imbalances and actually sees open expression as the affirmative harm to be combat it is what you ted read about if you hang on on tumblr. That is the element of the left even to call liberal. We often have people on the right conservative and those on the left that could be problematic in its own ways but calling people on the left liberals is extremely misleading because the left has always been divided in the entire liberal left for example, has included marxist and other revolutionary communist but there are people in the social Justice Movement could be could be called a liberal and belief in their rights including free speech but also to combat the justices but there are many people would say they reject those fundamental tenants so those opponents are the authoritarian right heel and left in the defenders are the liberal rights and authoritarian. It is not a left right to issue the last thing as public versus private universities and this is something where as a libertarian i think the proper way of thinking about free speech govern the universities are state actors say need to be subject to free speech protections for private organizations should have won never sort of rules that they liked so we can all be like a byu you do justice to have a university that says we affiliate with his religion and they could talk with kidnap parameters of you say it is false you have the right but not on our property so even from the non religious perspective you can imagine the university that allies itself with the social Justice Movement to say we are a safe space for everything you are entitled to be in a bubble where all of your it is are reinforced or something there is the fate morally wrong with that that is a silly example but you could have a university that says we believe in free speech but italys has to be done in the way it is a defensive i think a lot of private universities to that end of the there is anything morally wrong with that but the position of fire is public universities First Amendment if you violate that we sue you. Try a university should not have to do that and if youre a fraud we will not touch you because we dont make any claim to be perots free speech but to that extent you claim you support those ideas and you announce on your Promotional Materials we signon to the liberal idea with robust debate you are trading on the value of open expression and in that case if you violate that by shutting down the group that wants to invite somebody that speaks against islam or affirmativeaction, if you shut them down and violate the commitments that you yourself made we will not sue you but we can shave view it is appropriate to shave private universities in so far they have committed themselves to that ideal the understanding that fire doesnt say anything bad about fight byu but it has not made any claims however every does make claims so it is appropriate. You have any views on that . I have a feeling given where ripple start with their outlook that our views would not be that divergence i am not surprised they havent been that it is important to keep in mind there have been universities where speakers have been decided because their views are a popular white for example, columnist that was disinvited from talking because of backlash overt of his invitation triggered some the speaking of every to have a policy towards invited speakers i dont believe fired or denied that a organization recognizes it is strong to allow speakers to come to campus with the evaluation of their views to be popular or unpopular the reason is harassment codes and other things along those lines and go to the every page and then talk about though lawyer culture in a way that as a practicing attorney that tends to be very disappointing for righties speech policies exist you would hope lawyers of all people appreciate the fact there is a value towards having free speech in one of the things that you appreciate early and often is that while there might be some correct answers with legal questions in law school when youre out there in the real world you may have the case that is 100 percent justified by existing law there is no ready ready with a straight face could argue against to bellow and will hold the top of the job to convince the judge he should rule in favor so part of that is due to the adversarial system representing positions where there may not be support for u. S. Help there were responsible for suggesting to have implementation that they are not allowed to speak their minds of those negative consequences. Even though every does have a red light from fire that could lead to sexual harassment, one place i give them credit is water two years ago the University Settings had a respect for open expression policy it is administered by a committee and open expression i actually said on the committee but i am i here to speak as part of that committee but you can read it just read that policy and on a space take some very free speech position that is committed to an environment where the open expression and of ideas and vigorous debates are valued and promoted and encouraged. This policy reaffirms the unwavering commitment their dissent and protest it is fundamentally committed to move a vigorous discussion with the advancement of the multifaceted the advancement. The next sentence has civility and Mutual Respect our core values in our community this is the language were you see that you say this is like one of those private universities that say we agree with free speech and not offending anybody but his sensibility we still respect our core values and we ask all members to ladies carefully planned exercising the fundamental rights of open expression i agree with civility and Mutual Respect is says please consider these when exercising your right so if they give properly interpreted that policy takes the very Free Expression position but there is language of that incorporates the freespeech clause of the First Amendment so even as a private university it is a modest day after it chooses to subject itself and goes even further in italy protect against a doctors if we had any event disrupted by a student they would not be a stage actor and violating the First Amendment on either hand this applies to all members of the community that includes students and public universities have to tolerate what goes on within the obligations of affirmative support to affirmative support obligations and other areas where they express the viewpoint of no signs or air displays can be disapproved because of their content. Oh lot depends how this is administered but i am hopeful with a strong policy we can get our numbers and get into greenlight territory. I give thee every University Setting and the administrators huge credit for taking the effort to adopt a policy rather than just rolling over. To empower the independent White Committee for expression like the television to interpret and apply that policy with the whole student activism movement decades sign themselves black students at every baby that is the name of the organization of theirs are what they choose to call themselves but many are not related to open expression or representation or psychological counseling there are a number of slayings with open expression values that they suggested a lineitem did this teacher commit any micro aggressions . Is called for limiting access and that day posted these comments. But a student activists Say Something that is doing anything about it but that is a dialogue going non in we will have to cn the coming months that we are guardedly optimistic that there is merit in these demands that can be accommodated of which would be legal under the First Amendment and that they violate the open expression and policy that we have voluntarily accepted by the way it says this policy is paramount to every gather policy at university so that this has an exception that you can violate federal state or local law but unless you follow the exception that follows a rather and at every. Without being antagonisantagonis tic to see how that plays out in the future because of those demands how it is addressed in this free speech rights they he argues in favor of of where they cut back and that is where they become concerned. We will take questions from the audience. How lawyer culture but history and free speech. When they leave college where some may be more bad as our generation as we go into the workforce were not putting in bubbles but you have to deal with the center of pleasant with that shift m the idea that like i am an adult and i can walk away. My honest answer is too soon to predict what affects the current view points that it correctly assumes that people may go into Business Culture that is take the regulated so those people may never appreciate to enjoy a as part of fe veteran it is easy to talk about in and did 80s and how there is a regular student demonstrations to divesting from companies and of course, perhaps that pressure led to the downfall and certainly that College Experience is so much different and then to be exposed to those ideas and next day based upon the idea is that generations before it that somehow the class might accept you that you often hear the reason the First Amendment comes first it is the most important but soon after that paradigm falls apart. If that is from 12 amendments the first to one of them was the 27th amendment and those never went anywhere so we know the First Amendment came third. I would not push back. [laughter] but im not confident and then to graduate from that. Into making it irreparable damage. In the idea of the overall ideological climate that that is very much toward the left it was like that and i dont know when thats direct one that started but there is always the concern the kids are learning these things in college and they got to the work force to implement that. In the academy has always been so far to the left the median of the United States so it in the event, and i would describe as the center right country. As much as they say we want to indoctrinate these kids be coz number one you all had agency if you may have been indoctrinated so i am concerned about this not so much and it has become more awesome. For a Campaign Speech against Campaign Finance reform and for commercial speech and protection for the Westborough Baptist church that with the idea that would affect the law but but even if the world ended it is bad for the College Experience itself to have an attitude that i am entitled not to be offended. Private organizations and had zero day clash in a sense that we dont typically hold them to the same standards and all that First Amendment but those universities that do hold themselves as the bastion of free speech when it comes to offensive speech even if their private are there ways to get them besides schaede mean . That you held yourself all but you dont expect these values . Of the way it triggers title line compliance and private schools that accept federal money and they should be expected for this state money with those liberties. And it we dont now how realistic that is but that more conservative students are more robust freespeech policies. To demonstrate the absurdity to say theyre being offended by those expressions that dont there by pointing out in either direction that is just wrong. In to his credit it with the free speech proponent end to end alliant of uncertainty at very young ages. In the early through bid 90s for you may recall this. And studying in his dorm room one night without the africanamerican Sorority Students in yelled out an epithet toward them that brought about by charges of racial insensitivity and basically calling them water buffalo which one of the professors so that isnt even a racist epithet. Even with the pds says that is true. And consent to having embarked on his record and the charges were dismissed. And i was researching a the topic but that sociology professor that strongly condemns in the outcome from the right place but it is very difficult to figure out a strategy to defeat word already exist but that is not to be expected to now we can talk about title line nine. But it seems like a of a bit strong madison most dont take a strong or hypothetical that advertises itself and that is clearly contrary into play both sides to ever say you can never definitively prove they violated to say that we believe in robusta scores in to give a Strong Enough to do it position the ioc that as being the most promising line of attack and as far as suggesting there may be universities that take so much to the way of federal funds and makes them subject to the instructional constraints i am inclined to say in 1982 case that says even if you that case was a primary or secondary school in districts in massachusetts that was difficult to educate students they would send them to that school to pay the tuition that made 95 percent of its money of the Public Education they were entitled to accept it was private and the government was paying. And not subject to constraints even then hypothetically the neck of the Subway Sandwich store on capitol hill. And touche takes funds a matter how many but a lot depends on to what extent do they try to micromanage what you do . And to adopt some kind of speech covered the strong warming of the department of education there could be some leeway if you get there. Most of the time that is not the case. And for the robust First Amendment policies. But according to fire the federal office of civil rights may be responsible for were the more restrictive speech codes that universities have implemented but it was assaulted amendment with access to military recruiting whether private schools with harvard and yale and the light even though they have preferred not to. And one thing to wanted to mention with liberals on the left and right the Federalist Society has conservatives and libertarians with a wide diversity of opinion the one thing you could say with certainty is fair to say they have taken an apposition and favor of robust speech on campuses. So on the colleges willingness to support free speech rights but it is good to know released one person in the Administration Takes a view of that. Just like yelling fire in a theater. Sova, surveyed so is that the connection and that can never be used . And they will have that effect of leading to discrimination so if you dont buy that at all . But the problem of this area in general is the certain recognized exceptions to of freedom of speech and the fighting words doctrine debate have misread this but shouting fire in a crowded theater. And in reality a narrow exception it makes the of listener upset. I know think anything we are saying to deny their institution all sexes some and that it can be up part of that. And the place of the woman is in the home in mission not be working in positions of responsibility and clinton did not be elected president because it is inappropriate to be head of the free world. Because it is part of the institutional sexes some to the extent that it is made to encourage institutional sexes and. Now a university where there is a lot of talks that could entrench sexes of the 70 and with those biological differences. If you argue against the affirmative action and with those being expressed with institutionalized racism. Against homosexuality your gay marriage eritreans, really a woman and should not be able to use the womens restroom for those that our contrary in denying when those things exist. All of those under the First Amendment that there can be absolutely that government is prohibited from taking any action against them. That adopt the first of a bid to rebellious and are required to allow this to have been because of the need of open debate and that content neutrality regardless of the effect of sexes them or racism. I am curious when we find the situation is a people are restricted to free speech zones we dispelled as if we were targeted and told to be restricted to the free speech zone for the advertising for an event we had coming and others had not been for their evens. But we also find for putting up signs it and unfair manner because some of them and it turned out the Young Americans for liberty was an organization to be signed up for the weekend and we have to pay this time for leaving the signed up over the weekend we have to figure out another way. And luckily ive was there lehr being infringed upon and we ended up contacting fire to have this handled in a due process like manner before we had a fine imposed upon this. How do we turn this tide had be turned that tide moving forward . Mind standing is we have good success it has been successful and correct me if i am wrong but to my understanding that regard to public universities have found that restricting free speech to a Public University is unconstitutional even one case involving a campus preacher is don google maps because attorneys have done a horrible job and does his own Internet Research but that is a topic for another conversation. That is more or less on point with the rosenberg case. But most of the cases involving specific read this speech codes are mostly at the District Court level could you turn the tide . Lawsuits alien shame. As of followup of your restricted how do you get out there and get then shame not to the community . And that is the fundamental issue. Shaven and epilogue . To get the message out to a the public that was never previously available. There is no guarantee of that but what they post online. Or by contacting evening safire organization and to speak out in ways that are not limited to the physical campus that are coming up through the fifth circuit were High School Student had a rap music sound he was critical of a gym teachers so on the header you and the secondary school has a lower constitution. In with the rap music artist but backward we were in school but email did not make a big until the year after i graduated. They saw were covering of for the top for the talks [inaudible conversations] good morning. I will try that again. Good morning. I am the president of the center for justice a gathering of the active list of leaders will citizens from all over the country that mark say sickle moment in we are so grateful to all