Sue the Thought Police

By Jack Fowler

Thursday, August 11, 2022

For those who enjoy a bully beatdown (and who doesn’t?), the comeuppance has come for some of America’s most determined intimidators — the higher-education administrative state. Fighting back for cowed students and teachers caught in its ideological crosshairs is Speech First. Founded in 2018, small but growing, and punching well above its weight, this feisty nonprofit loudly carries, and employs, a big legal stick on behalf of those who wish to speak, whether quietly, stridently, or — at a time when, as the mantra goes, “silence is compliance” — not at all.

America’s persistent cultural madness started with that eruption dubbed the “Free Speech Movement” in Berkeley. The mid-Sixties display of massive student protesting set the framework and plot: Colleges were to be the domain of free speech and academic freedom.

Two generations hence, the Berkeley protesters’ ideological progeny have turned that cause — pushing the legitimate boundaries of the First Amendment, and protecting rhetoric and controversial opining in the classroom and on the quad — on its head. Come 2022, hundreds of American campuses (some 454 by the latest count; up from 232 in a 2017 assessment) are now hotbeds of speech control and thought-policing. The formalized and widespread practice goes by the conservative-triggering name of “bias-reporting systems.”

Like the other leftist-inspired abbreviations that infest the American political, academic, cultural, and corporate scenes — BDS, SEL, CRT, SRI, ESG, and BLM — “BRS” has become a dominant and disturbing presence on college campuses. Public, private, or religious, no matter if located in the reddest of states, BRS has proven viral. Siting itself in a school’s hospitable “diversity, equity, and inclusion” offices, and nourished by unwitting alumni funds and tax dollars, BRS is a stew of protocols, rules, no-no listings, and punishments that conspire to investigate and adjudicate “bias incidents.” Which are? How about speech motivated by someone’s “intellectual perspective” (courtesy of the University of Mississippi) or “perceived political ideas” (so say the proletariat vanguardians at Eastern Mennonite University)?

Beyond the investigating (duties lustfully performed, at the University of Tennessee, by its “Bias Education and Response Team,” which sounds a smidge less scary than the University of Maryland’s “Hate-Bias Response Team”), there is the intimidating — inherent to the enterprise. Bias-reporting systems, by their existence, are institutional deep freezers that create those “chilling effects” on campus speech. They are the instigators of the cautionary thought Should I risk speaking up in the first place? Which is why the foes of BRS, including admirable organizations such as FIRE (newly reminted as the Foundation for Individual Rights and Expression), charge that it prevents students and professors — from the non-woke to the surely conservatives to the leave-me-aloners — from voicing opinions, or even telling jokes, lest they get caught up in a crypto-Soviet dragnet (anonymous accusers, no due process) with an array of consequences: hostility, reprimands, suspensions, the boot, and finding themselves at the dangerous intersection of Here’s My Opinion and You’re Unhireable after Graduation.

In a paper for the American Enterprise Institute calling for the elimination of BRS from colleges, Cherise Trump, a George Mason University graduate who is Speech First’s impressive executive director, railed against its expansiveness and the consequence of its unsubtle silencing: “The fear of being anonymously reported to authorities and subjected to process-is-punishment investigations, diversity and anti-bias trainings, and public stigmatization is a present and powerful force on campuses nationwide.”

As it chills speech, from political to happenstantial, BRS also suppresses diversity — of thought. Which seems the point, after all: to do away with “on the other hand,” a thing central to academic debate and classroom exploration of thought, yet now intolerable and impermissible on many a campus.

The Soviet quality of BRS is all too real, says Trump. “Bias Reporting Systems use tactics like the ones we saw in East Germany when neighbors were reporting on one another anonymously. The goal here is to bully students into submission via the fear of being reported by their peers and then subsequently investigated and disciplined by the campus’s modern-day Stasi.” 

Nein, danke! 

“This is a dark path we are heading down,” she adds, “where universities are soliciting reports from students and encouraging them to see one another as enemies of the state rather than building up a sense of fellowship.”

And so it seems the moment has arrived to stand athwart BRS and yell, “Stop.” As FIRE has broadened its portfolio beyond the education battlefields, Speech First — a collection of students, parents, alumni, and First Amendment lovers — has emerged with a specializing purpose and a single-interest agenda: to preserve free speech and open discourse in the lecture hall, on the quad, and in the term paper, and to do that by engaging in hand-to-on-the-other-hand combat against “the increasingly toxic censorship culture on college campuses.”

Speech First applies a three-prong approach to the struggle. Prong One is to increase public awareness — and especially alumni awareness — of how insidious, widespread, and institutionalized BRS has become. Its new report, “Free Speech in the Crosshairs,” names the 454 institutions housing a bias-reporting system or its title-approximation, explains how a textbook BRS operates, and exposes its dangers — the kinds posed to individual students and faculty, and to the broader concepts of academic freedom and open public discourse.

On a decidedly legislative front, Speech First, working with Arizona’s Goldwater Institute — the institute’s brainstorm, the Campus Free Speech Act, mandates that “all state institutions of higher education officially recognize freedom of speech as a fundamental right” — has drawn up rigorous model legislation, directed at public universities, that seeks to prohibit the use of public resources to support any school staff, office, or system that would “investigate, threaten disciplinary action, or otherwise punish enrolled students for expressions of speech protected by state or federal law, including but not limited to speech pertaining to disagreements of opinion; political beliefs or affiliations; or perceived bias, prejudice, stereotypes, or intolerance.”

But the heart of Speech First is not in legislation-drafting, or in report-writing, but in suing: Any intimidated or harassed student can find in Speech First an organization desirous to take a college and its administrators to court (at no cost to the student), to kibosh a BRS star-chamber process, or, seeking far bigger game, to demand that schools erase the progressive verbiage that is essential to the BRS rules, protocols, and mission.

Speech First’s legal efforts have met with significant success, because it has found two reliable friends: federal courts and the U.S. Constitution. Three federal appeals-court systems have come down hard on BRS as a tool of speech suppression and a violator of First Amendment rights. (“The clenched fist in the velvet glove of student speech regulation,” decreed the Fifth Circuit; “implicit threat of punishment and intimidation to quell speech,” said the Sixth Circuit; “nor would the average college student want to run the risk that the University will ‘track’ her, ‘monitor’ her, or mount a ‘comprehensive response’ against her,” thundered the Eleventh Circuit.)

“We’ve created a nationwide community of free-speech supporters so that students won’t have to go it alone,” Speech First boasts. And as aggressive as campus snitches are in ratting out some off-color joke-teller, Speech First, just as eagerly, happily welcomes those seeking representation against a college administration’s thought-enforcers. To date, it has racked up lawsuit wins against the University of Michigan, the University of Texas, the University of Illinois, Iowa State University, and the University of Houston, the last of which was just settled. There are major open cases against Virginia Tech and the University of Central Florida.

(In the University of Houston case, raised by Speech First in February and swiftly adjudicated, a federal judge ruled unconstitutional the schools’ brazen threat — expressed in quintessential BRS language — to regard “minor verbal and nonverbal slights, snubs, annoyances, insults, or isolated incidents including, but not limited to, microaggressions” to be worthy of administrative punishment if “targeting a Protected Class.”)

“We’re putting colleges and universities on notice,” says Trump, that Speech First will “be there whenever they censor, shut down, or unjustly punish speech.”

First Amendment defenders are quite right to take heart from the drive and competence, the clarity of purpose, of this important new organization. And maybe they will even express their pleasure by uttering . . . Bully!