E-Pluribus |June 30, 2025
Constitution protects 'vile' speech.' Harvard violated student civil rights, Trump claims. School choice protects 1A.
A round-up of the latest and best musings on the rise of illiberalism in the public discourse:
Bob Shaw: First Amendment protects all speech, not just what’s popular
Following up on a story we noted last week, the New York Times continues to catch well-deserved flak for a scurrilous piece that uses innuendo and insinuation to associate University of Florida law professor and Trump-appointed federal judge John Badalamenti with one of his student’s racist social media posts. All because Badalamenti had given the student a high grade on a paper.
As we pointed out in an accompanying X thread, Badalamenti wasn’t familiar with the student’s racist views, which he only displayed on social media after his paper was graded. At The Orlando Sentinel, Bob Shaw brings some much-needed context to the story:
Preston Damsky’s academic paper argues that the Constitution’s opening phrase “We the People” was intended only for whites, and he has advocated for the expulsion of nonwhite citizens. More recently, comments on his personal social media feed included a remark about the need to “abolish” Jews “by any means necessary.”
Public outrage is understandable. These views are odious and the antithesis of what America stands for. But here’s the hard truth: the First Amendment protects vile, hateful speech, not just popular opinions. That is the burden — and the genius — of a free society.
Even before the U.S. Supreme Court wrote in its landmark New York Times v. Sullivan (1964) that public debate must be “uninhibited, robust and wide-open,” Justice Oliver Wendell Holmes noted that perhaps the most important idea in the Constitution “is the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate.”
The fact that Damsky’s views are widely held to be loathsome does not negate his right to express them, even in a publicly-funded law school. Damsky’s papers — another called for the expulsion of immigrants — have received awards. It’s not likely his professors, who have remained silent, agreed with his conclusions. But they were clearly impressed by his scholarship and writing skills, which are the principal criteria for grading academic papers.
Natalie Andrews, Douglas Belkin: Harvard Violated Students’ Civil Rights, Trump Administration Finds
A just-concluded investigation by the Trump Administration has found that Harvard University violated federal civil-rights law by failing to protect Jewish and Israeli students from harassment during recent protests. Per the Wall Street Journal, the school is one step closer to losing its federal funding:
The Trump administration informed Harvard University that its investigation found it had violated federal civil-rights law over its treatment of Jewish and Israeli students, putting the federal funding of the nation’s oldest university further at risk.
The investigation is the latest in the battle between the White House and Harvard. The Trump administration has sought to make the wealthiest U.S. university exhibit A in its fight against liberal institutions it says didn’t take antisemitism and DEI concerns seriously.
In a letter sent to Harvard President Alan Garber on Monday and viewed by The Wall Street Journal, attorneys for the administration said the investigation found that Harvard knew Jewish and Israeli students felt threatened on its campus and acted with deliberate indifference.
“Failure to institute adequate changes immediately will result in the loss of all federal financial resources and continue to affect Harvard’s relationship with the federal government,” the letter states. “Harvard may of course continue to operate free of federal privileges, and perhaps such an opportunity will spur a commitment to excellence that will help Harvard thrive once again.”
J.D. Tuccille: School Choice Could Fix the Conflicts That Led to the Supreme Court's Mahmoud Decision
Last week, the U.S. Supreme Court ruled that parents have a First Amendment right to withdraw their kids from public school lessons that interfere with their religious upbringing. J.D. Tuccille seems sympathetic to the decision, yet he argues the real solution isn’t opt-outs from individual lessons—but getting governments out of the schooling business:
Mahmoud v. Taylor revolves around the inclusion by Montgomery County, Maryland, public schools of books in which LGBTQ+ characters are the focus and their sexuality and conduct of their lives are presented in a positive manner. Initially, families with religious objections to the material were allowed to opt their children out of reading and discussing the books. Within a year, the schools rescinded the policy, arguing that too many families were opting out, imposing a burden on the system. Even so, the school continued to allow other opt-outs—including from sex education—that involved noncurricular activities or were mandated by state law.
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In the case before the court this year, "these books impose upon children a set of values and beliefs that are 'hostile' to their parents' religious beliefs," Alito wrote in the majority opinion deciding Mahmoud v. Taylor. "And the books exert upon children a psychological 'pressure to conform' to their specific viewpoints. The books therefore present the same kind of 'objective danger to the free exercise of religion' that the Court identified in Yoder."
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Importantly, the philosopher John Stuart Mill, who believed parents should be required to educate their children, nevertheless rejected government-run schools because they create such conflicts. "That the whole or any large part of the education of the people should be in State hands, I go as far as any one in deprecating," he objected in On Liberty. That's because arguments "about what the State should teach, and how it should teach…convert the subject into a mere battle-field for sects and parties."
And that's what we see in endless arguments and court cases over school officials trying to inculcate students with ideas that are offensive to those students and their parents.
Mahmoud was a win for parents' right to guide their kids' education. But the best outcome is to get government out of the business of running schools. Then families can choose learning environments that suit them without fighting others over what and how the state should teach.
Around X
Going back to the fundamentals of free speech, Greg Lukianoff reiterates a lesson we must never forget:
The US government has repeatedly chastised Europe for its recent failure to protect free speech. Aaron Terr warns that American officials could be eroding the credibility that allows them to police the censorious conduct of other governments.
But things may not be that simple. Chanting “death to” anyone strikes many X users as a clear call to violence. Perhaps the US is actually protecting free speech by censuring this sort of rhetoric?
