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Speech battles intensify as adversaries are treated as enemies, French says

Attorney and legal writer David French speaks at a Dec. 10 forum at the N.C. State Bar headquarters co-sponsored by the John Locke Foundation.
Attorney and legal writer David French speaks at a Dec. 10 forum at the N.C. State Bar headquarters co-sponsored by the John Locke Foundation.

Free speech is overwhelmingly popular in courtrooms around the United States, but the jury of public opinion doesn’t support First Amendment rights, a conservative litigator and legal writer says.

Political mudslinging happens when people choose sides based on what they hate rather than what they believe, David French, a senior writer for National Review, said Dec. 11.

The presentation was co-hosted by the Federalist Society, National Review Institute, and the John Locke Foundation.

Legal battles are easy to win, but cultural battles are easier to lose, French said, pointing to college and university campuses as incubators for negative polarization.

French, former president of the Foundation for Individual Rights in Education, spent years litigating free speech cases at colleges around the nation. His presentation in Raleigh comes on the heels of FIRE’s annual report, “Spotlight on Speech Codes 2019: The State of Free Speech on our Nation’s Campuses.”

The report, which each year surveys more than 450 public and private universities, found 28 percent of campuses nationwide severely restrict speech, while 61 percent of institutions invite some type of speech constriction via vague policies. These are classified as red-and-yellow-light schools, respectively. Forty-five institutions — whose policies don’t seriously threaten expression — were given the “green light.”

Thirty-five schools were green-lighted in 2018. Only eight universities had green lights in 2009.

North Carolina is a national leader with eight green-rated schools, seven of which are part of the University of North Carolina System.

But restrictive policies continue to prevail at several of the state’s institutions, and even schools with good ratings have issues. Campuses like UNC Chapel Hill, which are rated green by FIRE, suffer from speech controversies like those surrounding Silent Sam, a confederate statue toppled on the campus in August. Protests and counter-protests have ensued. In a recent proposal, UNC Chapel Hill’s Board of Trustees called for a mobile police force to respond to future protests — an action that could chill free speech, the National Council of Public History says.

Toxic political discussions from government elites have drained into the lives of average people, French said, recalling a case in which a university “speech code” literally stipulated “acts of intolerance will not be tolerated.”

Don’t think about it too much, he joked of the illogic.

Speech zones and codes exist to suppress more popular or powerful points of view in favor of lifting up historically marginalized ones, French said. It’s a model called “liberated tolerance,” but it actually “delegates free speech rights to the most offended person in the room,” he said.

It’s up to individuals to battle for a cultural return to the values of the First Amendment, and fighting for the speech rights of someone with whom you disagree is a good way to make room for more speech, not less, French said.

“Each one of us has to decide if we will continue to speak fearlessly. That doesn’t mean speak like a jerk. The opposite of political correctness isn’t assholery. The opposite of political correctness is actually speaking what you believe to be true with civility and conviction.”