The Students Who Fight for Free Speech, and Win

Daniel Davis /

Free speech has seen better days on the college campus. Increasingly, conservative ideas are unwelcome and even shouted down. At some schools, religious groups are being kicked off campus for not allowing nonbelievers to run their organization. It’s a concerning state of affairs—and yet, many students are pushing back and winning in the courtroom. In today’s episode, I speak with Casey Mattox about upholding the First Amendment on campus. We also discuss whether tech companies have any role in protecting free speech.

Read the lightly edited transcript of the interview, posted below, or listen on the podcast:

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Daniel Davis: I’m joined now by Casey Mattox. He serves as vice president of legal and judicial strategy for Americans for Prosperity. You may have seen his byline at National Review, where he writes frequently, and [he] recently wrote a piece for The Daily Signal, which you also may have seen. Casey, thanks for your time today.

Casey Mattox: Absolutely, thanks for having me.

Davis: So, Casey, I want to ask you about free speech on the university campus. It’s such an important issue today, one that you’ve worked on a lot.

Traditionally, the university’s been the most friendly place for free thought and free speech. It’s been encouraged. But today on so many campuses, it’s the exact opposite. Free speech is under threat.

I saw a recent study from this year by the Knight Foundation, which did a survey … saying that 46% of college students think it’s more important to promote inclusion on campus than to protect free speech.

Are you concerned that this hostile attitude toward free speech that we’re seeing more of among college students is going to carry over when they become adults, and become really more of a mainstream view in America that threatens to undermine free speech?

Mattox: Well, I’m concerned. As you said, what happens on campus doesn’t stay on campus, right? So, it would be one thing if we were just talking about campus free speech issues as a problem for the marketplace of ideas for a four-year period of students’ lives, but it doesn’t work that way.

The students on college campuses are essentially learning what it looks like to be a citizen in our republic for the very first time, right? You’re an 18-year-old, you go to public university, you’re away from your parents, and you’re working with government officials on a daily basis, from your faculty members to the administrators, and getting an understanding of what you should expect as a citizen.

[What] concerns me, in some ways more than the free speech problem itself, is what it implies for the notion of someone’s status as a citizen when they see that the government can tell them when and where you can speak, what you’re allowed to say, who you’re allowed to associate with.

The government has an interest in exactly how your private group of students runs itself and functions, when and where you can have meetings. If people get used to that sort of a notion of how the government works and what their relationship with the government looks like, I think that’s as much of a concern as anything else.

Davis: Right. What’s interesting on campus is you see speakers get shut down almost routinely now, conservative speakers. And many on the left will say, “Look, there’s no actual threat to free speech as long as you’re not saying racist or inflammatory things.” And there’s that caveat there.

They’ll draw comparisons to the Nazis or something and say, “Look, any free society has to draw boundaries to determine what’s to be tolerated and what’s beyond the pale. So, if we’re going to have a tolerant society, if we’re going to tolerate each other, then we have to be able to exclude certain kinds of inflammatory speech.”

How would you respond to that? Especially when it’s directed toward somewhat mainstream activism on campus?

Mattox: I’ll give just a little bit of pushback, only on the point about the shutdowns and that particular issue, and its frequency. I think that is, in some ways, kind of overstated as the core of the problem.

I think the real problem with campus free speech is the same problem it has been for a very long time, which is basically government institutions creating what are continued to be unconstitutional rules, telling students when and where they can speak, what they’re allowed to say, who they can associate with. Those continue to be the main source of the problem.

There is an increased tendency of students to shout down and not want to allow speakers to happen, but those are so much more sort of exciting examples, I guess, in one sense, that it’s easy to overstate that in our heads.

It is still the case that Ben Shapiro and certainly a whole lot of other conservative speakers far more frequently speak on college campuses without any incident at all. It’s just when it happens and we see those instances, they’re obviously infuriating.

The sort of attitude we see toward free speech and those situations upset us, but the reality is according to FIRE, the Foundation for Individual Rights in Education, I think it’s about 90% of colleges still have constitutionally problematic written policies. And that’s happening on college campuses all the time still.

And that’s the mindset we need to get changed, I think, is universities that continue to just tell students that it’s the government’s responsibility to tell you when and where you can speak and what you’re allowed to say.

I would like to get that cleaned up, and I think that policymakers can focus even [more] on that issue rather than on the shout down issue, which frankly, and we can talk about this in a bit, but [it gets] a little complicated on how to solve that problem.

I think the written policy problem is the one that the policymakers would do well to focus on, and frankly, I think part of the problem with the shout downs is that it’s natural.

If students are being told all the time that speech is too dangerous for the university to permit in certain areas, words are too dangerous for the school to allow you to say, then they start to get the idea that that must be true and they must do whatever they can to prevent people from saying words.

Davis: Well, in recent years we’ve seen some Christian groups, and other religious student groups, actually getting kicked off campus because the school says they’re discriminating by requiring their leaders to adhere to a certain faith.

So, if you’re [part of the] InterVarsity Christian Fellowship and you require your leaders to be Christians, well, that’s discrimination because you’re not allowing the Muslim to lead the Christian group, which I think for a lot of people is a bit nonsensical, but some universities have been making that case.

Just recently the University of Iowa lost its case against InterVarsity after they had kicked [a student group] off campus. Obviously, the trend on campus here is not good, but at least in the courts the students seem to be winning.

Mattox: No, that’s right. I mean, we are seeing significant wins, I think, in courts on these issues. I’ve joked before that, because I litigated campus free speech cases for many years, and if you want to impress your friends and make it look like you’re a Paul Clement with a winning percentage, litigate campus free speech cases because when you actually get to court, you win, or when you actually get to a decision you’re very likely to win.

The problem with campus free speech cases is that it’s so often difficult to get to an actual decision because there just aren’t a lot of incentives for universities to fix their policies upfront.

It’s unlikely that you’re going to be able to really hold them accountable down the road for a number of issues—immunity doctrines that protect them, and various other legal doctrines that end up making sure that the school really has very little incentive to address the policies up front. They can wait until they’re sued and then drag it out and fix them later.

But it certainly is encouraging to see the wins that are coming in court on the freedom of association cases.

Everybody should be able to agree that students should be able to gather together and express common ideas, and you can’t express a common idea if you don’t have a spokesperson who agrees with that idea. And that’s basically [what] all those cases are about, the freedom of people to gather together and express an idea in common.

Davis: Some states have begun to take action and try to put pressure on publicly funded schools to make sure that they’re making space for free speech, and actively upholding it. Alabama is one of those states.

What do you think of state efforts to do that, as well as the president’s executive order, which a lot of college activists, free speech activists have praised? Do you think these governments are correct to step in and to try to uphold the practice of free speech on campus?

Mattox: I think particularly state policymakers certainly have an interest in making sure that free speech is protected on their college campuses. You can’t have an education on a college campus without freedom of speech and freedom of association. So, if they’re appropriating a lot of money for universities to function in this way, you want to make sure that free speech is actually being protected.

I will never discourage policymakers from caring about the Constitution. So, I think that’s great.

And we had more campus free speech bills passed in state legislatures this last year than ever before, and of those, almost all of them were ones that I think strongly protected and were very positive moves toward student free speech. Alabama is a good example of that. Iowa, and in Oklahoma, and Arkansas, a number of states [have] passed very positive campus free speech bills.

I do have a concern, particularly with one with Texas I think is a good example where Texas legislators ended up with a state law that, among other things, has two problems.

One, they decided that if you disrupt someone else’s expression, then you can be expelled from the school, and they didn’t define what it means to disrupt someone else’s expression, and I think that’s concerning.

I’ve talked with pro-life student groups and others who are concerned that if you have administrators that are being told, “You must punish students if they disrupt someone else,” but you don’t clearly define what exactly it means, you are empowering government officials essentially with a very powerful tool to punish disfavored speech. So, that concerns me there.

But I think for the most part, state legislators have been doing a very good job over the last couple of years trying to address the very real problems of, sort of, university-imposed obstacles on free speech.

On the president’s executive order, I think we’re kind of in a wait-and-see on this. Again, I will never criticize the president for caring about free speech. I think that’s a very positive thing.

I think the concern that a lot of folks have [is] with exactly how it will be implemented by the agencies. There are a lot of ways that, if the agencies themselves start stepping into the campus free speech issues that should be being played out in courts, you could end up, one, with a very large bureaucracy that’s managing campus free speech policy that could be bad just from the growth of bureaucracy problem.

It could also be bad if you end up with some of the legal development that needs to happen in the courts, where you need the Supreme Court to step in and instead it gets derailed from there.

The other thing that I worry about there is, if you have a student in a speech zone situation and a federal judge is looking at that case, where a student is just trying to distribute literature and a speech outside of a speech zone on a university campus.

If a federal judge in making a decision on the First Amendment in support of that student knows that they will also be taking billions of dollars in research funding away from that university, I think it will make it a lot harder to get judges to do what they should be doing and enforcing the Constitution if there are those kinds of consequences.

So, it’s a challenging thing trying to figure out exactly what the role of the agencies are, and we’re basically waiting to see what happens as the agencies roll out the regulations to actually implement the rule.

Davis: Well, campuses get caught up in this so often because they are such a forum for speech. But another one of those major forums these days is social media.

You’ve got increasing numbers of voices, including in the Senate from folks like Sen. Josh Hawley, Republican, saying that tech companies, social media companies really bear a responsibility to uphold the First Amendment to the fullest extent, because they’ve become such a massive forum that they’re almost effectively a public utility.

And if they aren’t upholding our free speech rights the way we would like, then the government needs to step in and protect our natural rights to free speech. Obviously, that comes with the threat of regulation.

What do you think about this? Do social media companies bear responsibility to uphold and protect free speech? And should the government intervene at any point?

Mattox: Well, I think one would hope that social media companies would allow the greatest amount of speech on their platforms possible. We all want that.

I think the challenge here is, I would certainly disagree, and I’m not sure he’s quite at this place, but I know a number of other folks are arguing that social media companies are actually public utilities and should be sort of regulated in that way.

I’ve seen people call for essentially a fairness doctrine for the internet, and those sorts of approaches. And I just think fundamentally, it’s not conservative, it’s not pro-liberty. And I think, sticking by fundamental principles where we have to say that these are private platforms, I have other options. It’s in fact possible to not be on Facebook. My wife is not.

Davis: No, really?

Mattox: It’s possible, my wife is not on Facebook. I’m a frequent Twitter user. She is frequently annoyed by my frequent Twitter use, and is not on Twitter herself. So, it’s possible to be a citizen in our republic without actually being on social media. So we have to remember that.

It’s interesting, I mean, I will hear from a lot of folks often that the real marketplace of ideas has shifted online. But the whole first part of this entire conversation about campus free speech, which is a very hot issue, none of that is online. None of those things we were talking about is online.

Everyone seems to still think that it’s possible to express views on college campuses and be heard, and for it to make a difference, right? Ben Shapiro is still going and speaking. Yaffe still has a big speaker series. We see that happen.

I think we overemphasize the critical nature of online speech, in part because a lot of us who are there forget that not everyone is, right? And I go back home to Alabama and no one’s on Twitter, and it’s not a thing in my hometown in rural northeast Alabama.

So one, I think that we sort of overemphasize that, and when we’re thinking about it as a public utility, as if it really is sort of like water or like electricity that everyone uses, it’s not true. But these are, fundamentally, they’re private platforms, and I think they should not be punished for the fact that they’ve produced a product that people like and that they use. And the fact that they have been able to do that, I think, is not something that they should be punished for.

Davis: And, of course, conservatives are big stakeholders in Facebook usage. I recall seeing recently Mark Zuckerberg at a committee hearing getting grilled by Congresswoman Alexandria Ocasio-Cortez for holding meetings with these “right-wing” people, hanging out with conservatives, when, really, he was just wanting to know how he and Facebook could do a [better] job of serving this massive constituency.

So, it does seem the conservatives are having a real impact just by being stakeholders.

Mattox: No, I think that’s right. I mean, your average user on Facebook is basically kind of middle-aged or even older than [a] middle-aged conservative grandmother, right? That is your average Facebook user. And I think Ben Shapiro’s content, I’ve understood, is actually the most shared content on Facebook. So, you would understand why some folks on the left might be upset about that.

It’s puzzling to me how you end up in this place though, where people from both the left and the right are essentially calling for the exact same sorts of regulation, not realizing that if you get that, I think I said in The Daily Signal piece, that it’s much more likely, I think, that you end up with Warren book instead of Hawley book, if we go down this path.

Given the way our culture seems to be headed, I think if conservatives start giving into the idea that we should be regulating the internet, we need to break up tech companies, all those sorts of approaches that we’re hearing from folks on the left, I think it’s likely that we end up with something that a lot of folks on the right would be very rightly concerned about the kind of outcome they would get.

Davis: Casey Mattox, thanks so much for your time today.

Mattox: Thank you.

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