{"id":12833,"date":"2021-11-18T17:12:32","date_gmt":"2021-11-18T22:12:32","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/crcl\/?p=12833"},"modified":"2021-11-22T11:58:54","modified_gmt":"2021-11-22T16:58:54","slug":"the-danger-of-flirtations-with-first-amendment-violations","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/the-danger-of-flirtations-with-first-amendment-violations\/","title":{"rendered":"The Danger of Flirtations with First Amendment Violations"},"content":{"rendered":"

Photo Credit: Zimmytws\/iStock, via Getty Images Plus<\/em><\/p>\n

Respect for the Constitution used to be a basic qualification for elected officials. These days, some voters are giddy about campaign promises that would blatantly defy it. More troublingly, some politicians and candidates are ready and willing to give those people want they want \u2014 provided that they deliver them electoral gains. Ohio Senate hopeful Josh Mandel is one such person. In October, Mandel courted<\/a> voters with his insistence that \u201cthere\u2019s no such thing as separation of church and state\u201d and the prospect of \u201cinstilling faith in the classroom, in the workplace, and everywhere in society.\u201d While Mandel may calculate that these brazenly unconstitutional ideas are good for his political ambitions, there is no doubt that they are disastrous for the rule of law.<\/p>\n

The First Amendment<\/a> is clear: \u201cCongress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.\u201d The Constitution puts the government under a crucial constraint. Government officials can neither sponsor religion nor wield state-sponsored control over people\u2019s right to practice it. The Establishment Clause is vital to prevent the government from persecuting religious minorities, privileging the faith of some at the expense of the faith of others, and forcing people to conform to the beliefs of the officials that govern them. It is a check against abuses of power that could infringe on the civil liberties of both the faithful and the secular. In totality, the First Amendment grants five core freedoms: speech, religion, petition for redress, press, and assembly. Mandel\u2019s stated desire to take a hatchet to the First Amendment plays a dangerous game, especially for someone whose dream job involves carrying out constitutional responsibilities in the job description.<\/p>\n

The strategy to gain political capital by appealing to the extreme is not exclusive to Mandel. It has infected politics across the country and carries chilling consequences for Americans\u2019 First Amendment rights. The University of Florida, a public school, recently sought to stop its own faculty from testifying on behalf of plaintiffs who were suing the state of Florida over an election law that Governor Ron DeSantis enthusiastically supported. Professor Daniel Smith, a political science expert<\/a> and nearly 20-year faculty member who was barred<\/a> from testifying, had previously offered expert testimony and advice about voting rights to Congress, state legislatures, and outside groups. The University of Florida previously praised<\/a> those activities for providing opportunities for students. Despite past approval, school officials argued<\/a> that the faculty members\u2019 testimony would present \u201ca conflict of interest to the executive branch,\u201d and said that because \u201cUF is a state actor, litigation against the state is adverse to UF\u2019s interests.\u201d A DeSantis spokesperson denied involvement but echoed<\/a> the university\u2019s minimization of the free speech claim because the faculty would be paid for their expert testimony. Compensation for expert testimony is common and would not affect free speech concerns as participation is voluntary. After an uproar, the University of Florida reversed<\/a> its course.<\/p>\n

It is extremely unusual for a public school to forbid academics at public institutions from giving legal testimony. Public schools like the University of Florida are government actors, which are constrained by the First Amendment. The American Association of University Professors, which advocates for academic freedom at colleges, decried<\/a> the \u201cUniversity of Florida\u2019s politically motivated violation of academic freedom\u201d as \u201cundermin[ing] the common good.\u201d The Alliance for Academic Freedom, which promotes freedom of speech across the ideological spectrum, offered legal precedents in condemning<\/a> \u201cthe major violation of well-established principles of freedom of speech.\u201d Among them is Connick v. Myers<\/em><\/a> (1983), which held that \u201ca public employee does not relinquish First Amendment rights to comment on matters of public interest by virtue of government employment.\u201d According to Rankin v. McPherson<\/em><\/a> (1987), \u201cvigilance is necessary to ensure that public employers do not use authority over employees to silence discourse.\u201d Garcetti v. Ceballos<\/em><\/a> (2006) also limited when a state entity can impose on employees\u2019 speech. The case held that government workers \u201cmust face only those speech restrictions that are necessary for their employers to operate efficiently and effectively\u201d when the \u201cemployees are speaking as citizens about matters of public concern.\u201d Government disagreement with a government employee\u2019s private speech is not a constitutionally valid rationale.<\/p>\n

Similar First Amendment issues<\/a> have emerged<\/a> as controversies over critical race theory engulf school boards. Critical race theory is an academic perspective<\/a> that interrogates how race has affected social, legal, and institutional structures. Sometimes discussed in law and graduate programs<\/a>, critical race theory took center stage in the recent Virginia gubernatorial election<\/a>. Several politicians marketed critical race theory as an indoctrinating staple of K-12 curriculums that teachers force-fed to young children. While many opponents of critical race theory have struggled<\/a> to define the meaning of the term, others have attempted to define it with an inaccurately broad<\/a> scope.<\/p>\n

Critical race theory is a subgroup of critical legal theory, which holds that the law is necessarily intertwined with inherent social biases<\/a> to support the interests of people who created the legal system. “The essential claim of CLS is that all law is politics,” explained<\/a> a Touro Law Review<\/em> piece. “Since there can be no objective way of developing a universal system of jurisprudence, all jurisprudence is, therefore, indeterminate and subjective.” Critical race theory critiques constitutional structure<\/a> and legal ideology. It holds that the First Amendment cannot be neutrally interpreted or objectively applied, that some groups are categorically deprived of legal protection, and that racially oppressive views are codified<\/a> in America’s founding documents. These concepts are difficult for many college students to grasp, never mind children ages five to 17.<\/p>\n

Conversations about how race affects institutions in themselves do not amount to critical race theory. On the contrary, many discussions center around ideas that challenge critical race theory’s principles. One such stance is that the First Amendment is a valuable tool in fighting bigotry because it protects protest, establishes legal claims for redress, and permits criticism of unjust government actions. Another is that the rule of law is not just a ruse to protect the powerful, but a legitimate principle for constitutional accountability. The belief that the founding documents are aspirational in the pursuit of a “more perfect [u]nion,”<\/a> even when the legal system falls short, also challenges critical race theory. Given these developments, multiple critical race theory bans<\/a> were proposed by local school boards that have legal problems<\/a> similar to the ones in the Florida controversy<\/a>.<\/p>\n

In\u00a0Tinker v. Des Moines Independent Community School District<\/em><\/a> (1969), the Supreme Court held\u00a0that public students do not \u201cshed\u201d their First Amendment rights \u201cat the schoolhouse gate[,]\u201d notably when student speech does not infringe on other people\u2019s rights or create substantial disruptions. Enforcement of a critical race theory ban could infringe on constitutionally protected expression. When the definition of critical race theory is extensive in scope, it could stifle important conversations about tolerance, racism, discrimination, and respect for cultural differences. Public school teachers tasked with educating students also do not forfeit<\/a> all of their First Amendment protections in the scope of their employment. While teachers’ freedom of expression is restricted at the K-12 level, they still have some protections<\/a> for speech about issues of public concern. In\u00a0<\/em>Pickering v. Board of Education<\/em><\/a> (1968), Justice Thurgood Marshall noted that \u201cthe interest of the school administration in limiting teachers\u2019 opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public.\u201d<\/p>\n

Calls to ban<\/a> Toni Morrison\u2019s book Beloved<\/em> also raise censorship concerns. While the Supreme Court held in\u00a0Board of Education, Island Trees Union Free School District v. Pico<\/em><\/a> (1982) that public schools can bar books from school library shelves that are \u201cpervasively vulgar<\/a>\u201d or unsuitable<\/a> for a curriculum, they cannot remove books from those shelves \u201csimply because they dislike the ideas contained in those books.\u201d Beloved<\/em> details the life of a former slave, who feared her children would be captured. Terrified that her child would be subjected to the horrors of slavery, the protagonist tragically kills her own daughter in the belief that death was preferable to enslavement. \u201cBeloved, she my daughter,\u201d Morrison wrote<\/a> in a haunting passage. \u201cShe mine… She come back to me of her own free will and I don\u2019t have to explain a thing. I didn\u2019t have time to explain before because it had to be done quick. Quick. She had to be safe and I put her where she would be.\u201d While Beloved<\/em> is an emotionally jarring novel and does contain sexual content, the case that a ban was proposed to quell discussion is strong. Although passages about sex may be uncomfortable, the true power to disturb comes from its raw depictions of slavery, brutality, and death. While one could try to claim that Beloved<\/em> should not be taught in a curriculum because it has sexual material, it can also be persuasively argued that the intellectual gain to older students from teaching it outweighs that concern.<\/p>\n

These are only some of the recent examples of how politicians and lawmakers have threatened their constituents\u2019 First Amendment rights. Mandel\u2019s candidacy opens the door for more infringements. The excuses for Mandel\u2019s comments \u2014 from dismissing his words as hyperbolic or arguing that he would never actually pass policies that would violate the First Amendment \u2013 give cover for inexcusable conduct. Citizens should never tolerate candidates who openly, and proudly in Mandel\u2019s case, call for trampling constitutional rights.<\/p>\n

In another disturbing turn of events, a candidate running against Mandel used his religion against<\/a> him. His opponent released an anti-Semitic<\/a> advertisement in which a voice actor asked, \u201cAre we seriously supposed to believe the most Christian-values Senate candidate is Jewish? I am so sick of these phony caricatures.\u201d Another voice in the advertisement adds, \u201cI agree\u2026 We keep electing people like this, we\u2019ll just keep getting the same terrible results.\u201d This smear campaign demonstrates why the First Amendment is so precious and the frightening irony of Mandel\u2019s comments. If Mandel\u2019s opponent were to prevail, he might implement menacing policies given his evident animosity toward religious minorities. The Constitution was meant to prevent Americans from abdicating their liberties to a zealous government. Voters who turn their cheeks at blatantly unconstitutional pitches like Mandel\u2019s make a mockery of this protection, which is a privilege that people who suffer under oppressive regimes<\/a> in other nations could only dream of having. Fidelity to the Constitution should not be optional for lawmakers, current and aspiring. It is the bare minimum credential for public service. Those who flirt with constitutional violations are unfit.<\/p>\n

Christina Coleburn is a J.D. candidate at Harvard Law School.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

Photo Credit: Zimmytws\/iStock, via Getty Images Plus Respect for the Constitution used to be a basic qualification for elected officials. 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