With no opportunity to mount a defense, Maggie DeJong was banned by her university from speaking to three classmates because she expressed views those classmates opposed. With no defense of its own to mount when DeJong sued the school for violating her free speech rights, Southern Illinois University agreed to settle, paying her $80,000. The university also agreed to send its censoring officials to remedial First Amendment training taught by DeJong’s lawyers.
Training of this sort is an unusual and creative remedy. Litigants who have their free speech rights infringed should regularly demand it.
DeJong was one victim of an increasing wave of censorship by self-appointed gatekeepers of polite discourse. Under the banner of civility, these censors suppress ideas and facts that undermine their view of the way things should be.
The University of Texas at Austin, for instance, threatened to fire or penalize a professor who exposed the university’s plan to ensure that new hires have uniformly left-wing views on cultural issues.
Virginia Tech and other universities deploy bias response teams to silence disfavored views on campus. These teams rely on students to snitch on classmates who express “offensive” views and then subject those classmates to investigations, reeducation, or even discipline.
But if this seems like a problem only with higher ed, think again. Left-wing government officials are zealous censors, too.
Consider Barbara Ferrer, Los Angeles County director of public health. When her constituents took to Twitter to criticize her draconian COVID-19 orders, Ferrer leveraged a relationship with Rep. Adam Schiff, D-Calif.—who then chaired a House committee responsible for oversight of companies like Twitter—to pressure Twitter to suppress that “misinformation.”
And, more generally, the Biden administration and its social media allies have created what one constitutional scholar calls “a vast system of censorship” that suppresses debate over “questions of great public importance.”
UT Austin, Virginia Tech, the Biden administration, and Ferrer are all now being sued for violating the free speech rights guaranteed by the First Amendment, which protects from government censorship every American’s right to express his or her beliefs and to challenge the government’s assertions about the facts.
It doesn’t matter whether the government denies a person the right to speak or to reach an intended audience, or penalizes that speaker with ideological training. All such censorship is unconstitutional.
Each of these would-be censors is likely to lose if they try to defend their conduct in court. But whether they lose or wisely settle before an adverse judgment, a monetary penalty may not be enough to convince them that censorship is wrong and unlawful.
For that, remedial lessons in basic civics might do better.
All public officials who censor speech should undergo First Amendment training like the censors at Southern Illinois University are. Plaintiffs who sue for infringement of their free speech rights should seek First Amendment training as a remedy for censorship. And if infringing officials want to settle the case, plaintiffs should make such training a condition for settlement.
Training of this sort accomplishes several good things. It will make officials more conscious of the limits on their power. It will dispel certain prevalent left-wing myths about free speech, like that “hate speech” and “misinformation” are not protected speech. And it may make would-be censors think twice before violating the free speech rights of others.
But what about recalcitrant idealogues? Some of these censors probably don’t much care about free speech or think that the dangers of allowing conservative opinions to be expressed justify infringing it. What will the training do for them?
It will do two things. It will remind them of the uncomfortable consequences of bad behavior. And it will make it easier to get punitive damage awards against them in future lawsuits.
Punitive damage awards are available under many laws that provide remedies for civil rights violations. Typically, what matters for punitive damages is the violator’s state of mind, not the egregiousness of the conduct. They’re most often available when the violator knew that he was violating civil rights and didn’t care.
If a violator went through civil rights training in the past, he can’t claim ignorance in the future.
In some cases, First Amendment training might not make bad actors good. But even the worst actors might think twice about violating someone’s civil rights if the consequences are massive personal liability.
So, for all these reasons, let’s make a habit of subjecting censors to the remedial training they need and deserve.
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