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Trump 2.0: A Stress Test for the First Amendment
67 Plays7 months ago
In this episode, constitutional law scholar Timothy Zick joins us to discuss how President Trump’s second term is testing our commitments to free expression and academic freedom. From the chilling of faculty speech to the fraught intersection of the First and Second Amendments, Zick examines how executive overreach is placing the nation’s core democratic freedoms under unprecedented strain.
Episode Resources
- Thoughts on the First Substack
- Trump 2.0: Executive Power and the First Amendment
- “New Threats to Campus Protest”
Recommended
Transcript
First Amendment and Democracy
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I think what we need to do is explain how our principles of free speech, free inquiry, will help serve the cause of justice.
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The First Amendment, the constitutional freedom of speech and freedom of conscience that is the bulwark of our democracy.
Introduction to Speech Matters Podcast
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There was a passion in what was being said, affirming this, what people consider a sacred constitutional right, freedom of speech and freedom of association.
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From the UC National Center for Free Speech and Civic Engagement, this is Speech Matters, a podcast about expression, engagement, and democratic learning in higher education.
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I'm Michelle Deutschman, the Center's Executive Director and your host.
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So much has happened since we recorded our last episode one month ago.
Charlie Kirk's Assassination and First Amendment
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In the wake of Charlie Kirk's assassination, the landscape has shifted.
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Faced with intensifying political pressure to retaliate against faculty, staff, and students,
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that did not appropriately respond to Kirk's death, colleges and universities sanctioned employees and students.
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This blatant disregard for First Amendment protections and extramural speech rights of faculty deepened the chilling effect across higher education institutions.
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Questions abound about what impact Kirk's murder will have on events, protests, and other expressive activity taking place on college
Open Carry Laws vs. Free Speech
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campuses.
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Will public safety be used as a pretext to suppress speech?
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Why are more pundits and people not talking about open carry and the relationship between the First Amendment and its closest sibling, the Second Amendment?
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To help us untangle and make sense of all the ways that open expression and academic freedom are being undermined at this moment is Timothy Zick, the John Marshall Professor of Government and Citizenship at William & Mary Law School.
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If you are not already subscribing to his sub-stack, Thoughts on the First,
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I suggest you check it out.
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But before we dive into our conversation with Tim, let's turn to Class Notes, a look at what's making headlines.
Criticism of Trump's Academic Compact
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On October 1st, nine universities, the University of Arizona, Brown, Dartmouth, Massachusetts Institute of Technology, University of Pennsylvania, University of Southern California, University of Texas at Austin, Vanderbilt, and the University of Virginia,
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received a letter from the Department of Education inviting them to join what the Trump administration is calling a, quote, compact for academic excellence in higher education, close quote.
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Under the compact universities agree to a set of conditions in exchange for preferential access to certain types of federal funds and other benefits.
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These stipulations include banning the use of race or sex in hiring and admissions, committing to a strict definition of gender, freezing tuition for five years, capping international undergraduate enrollment,
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requiring applicants to submit standardized test scores and altering governance structures that punish, belittle, or even spark violence against conservative ideas.
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The compact's demands are one of the clearest articulations of the administration's educational goals.
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And if one of these universities declines the administration's offer, not to worry, the repercussions are only potentially forgoing all federal benefits.
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Hence, this is less like a compact and more like extortion, as many higher education leaders have pointed out.
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According to leading constitutional scholars like UC Berkeley Law Dean and Center Co-Chair Erwin Chemerinsky, the proposal is unconstitutional, inconsistent with academic freedom, and creates, quote, unprecedented federal control over higher education, unquote.
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This past Friday, October 10th, MIT's President Sally Kornbluth
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announced the university's rejection of the terms of the compact, citing concerns over the compact's limits on free speech.
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Hopefully the other eight university invitees will follow suit.
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In the latest twist, late on October 13th, Bloomberg News reported that the Trump administration is now inviting all US colleges to participate in the compact.
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We will continue to follow this story.
Court Rulings on Trump's Policies
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In a major First Amendment ruling, a federal court held that the Trump administration's practice of arresting and deporting non-citizens for their political speech was unconstitutional.
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Filed by the Knight First Amendment Institute at Columbia University, this case raised the question of if non-citizens lawfully present in the United States have the same free speech rights as the rest of us.
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Judge William G. Young answered this question with an unequivocal yes, they do.
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Testimony in the case centered on the detentions of outspoken pro-Palestinian activists, including Mahmoud Khalil, who studied at Columbia University, and Ramesa Ozturk, who studied at Tufts University.
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In other news, the Texas Tech University system is facing sharp critiques over its recent guidance restricting how gender can be discussed on its campuses.
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The system's chancellor, Ted L. Mitchell, directed faculty to ensure that all courses, syllabi, and instructional materials
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recognize only two human sexes, male and female, citing compliance with President Trump's 2025 executive order as well as state law.
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The memo sparked immediate concern among professors who say they are unsure of what they are allowed to say in the classroom.
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Advocates warn that the directive chills free expression and undermines academic freedom.
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Now back to today's guest.
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Professor Timothy Zick is a professor at William and Mary Law School who teaches and writes about the First Amendment, the Second Amendment, and other constitutional law topics.
Interview with Timothy Zick
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He has written on a variety of constitutional issues with a special focus on the First Amendment.
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He is the author of five university press books on the subject, including The First Amendment and the Trump Era and Managed Dissent, the Law of Public Protest.
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At the end of this year,
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Zick's newest book, Trump 2.0, Executive Power and the First Amendment, will be published by Carolina Academic Press.
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Professor Zick has been a frequent commentator in local, national, and international media regarding the First Amendment, Second Amendment, and other constitutional issues.
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He has been a guest on national television and radio broadcasts, and his commentary has been published in The Atlantic, Slate,
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U.S. News & World Report, The Washington Monthly, Jurist, and The Conversation.
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He's been quoted frequently in the national press, including The New York Times, The Washington Post, The Los Angeles Times, The Boston Globe, FiveThirtyEight, PolitiFact, CNN, NBC, Reuters, The Associated Press, Bloomberg, and the Christian Science Monitor.
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He testified before Congress on the Occupy Wall Street protests and rights of speech, assembly, and petition.
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Welcome, Professor Zick.
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I've admired your work for some time, and it's really a privilege to have you join us.
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Thanks, Michelle.
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It's a delight to be here.
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So to say that there's so much to discuss is an understatement, and it's a little hard to know
Trump's First Term and Free Speech
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where to begin.
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I have enough questions for numerous podcast episodes.
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Each of your thoughts on the first Substack post is worthy of its own conversation.
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For listeners, the episode notes will include a link to Professor Zick's excellent Substack thoughts on the first.
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So given the enormity of the task before us, I'll do what the King and Alice in Wonderland suggests when he says, begin at the beginning and go on until you come to the end and then stop.
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While I don't know where the end is, I do think it makes sense for us to begin with Trump's first term as president,
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As I mentioned at the top of the episode, in 2019, you published a book called The First Amendment in the Trump Era.
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How about you spend a couple minutes setting the table for our listeners about themes that arose around expression during President Trump's first term?
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Sure, I'd be happy to.
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So if you think of Trump, let's call it 1.0, as opposed to 2.0, as sort of heavy on rhetoric with regard to free speech and press issues and dissent and retaliation and those sorts of things.
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So President Trump engaged in what you might call a war on the institutional press.
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He described the press as the enemy of the people.
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He went after individual reporters and the like.
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Right.
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That was a big part of his first term.
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More broadly speaking, he demonstrated a sort of intolerance for dissent.
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And a demand for loyalty and a penchant to try and impose, if he could, through just ordinary bullying, orthodoxy with respect to how one should think about patriotism.
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or race or whatever issue he happened to be talking about.
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And he clearly wanted to, in some cases, took some steps toward retaliate against his enemies, right?
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Real or perceived.
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So he wanted to sort of retaliate against broadcast stations and newspapers and people in the public sphere who just criticized him.
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And for lots of different reasons, a lot of that didn't come to fruition.
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Maybe he was just finding his way as chief executive and didn't quite know how to go about it.
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Or maybe, as people have said, during Trump 1.0, there were these guardrails, norms or personnel who were talking him out of doing things.
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You know, most infamously, of course, the prospect of the idea of shooting protesters in the leg.
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to sort of slow them down or remove them from Black Lives Matter demonstrations.
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So it was all there, right?
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Right in front of us, this sort of rhetorical part of a campaign to retaliate, to impose, to censor.
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And just a general, I would say, disrespect for First Amendment freedoms, whether they were free speech,
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or press, or in the case of protest, freedom of assembly.
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So I think that's sort of what I took from when I wrote the book, the first Trump term wasn't even over.
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And there was plenty already to write a book about.
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And I wrote the book before, published the book before January 6th, and a great many other things that happened during the first Trump term.
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I was just thinking about how your book came out before, you know, January 6th and sort of how it is sort of unbelievable that you nonetheless had enough material.
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So I think this leads naturally to kind of the next question, which is, can we talk a little bit about what's similar and then what's distinct in what you would call Trump 2.0 vis-a-vis these First
Executive Orders Against Free Expression
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Amendment protections?
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Sure.
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Yeah, the rhetoric is the same, right?
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So a lot of what the president has to say about his political rivals and free speech and the press and so forth is very, very familiar.
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All of that existed during Trump 1.0.
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The principal difference is that in this iteration of the Trump presidency, he is now using executive power to
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to further a campaign of retribution against speakers he disfavors or speech he dislikes.
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That has come in the form of, I've tracked 40 plus executive orders that relate to or impact either free speech or press orders.
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He is suing, actively suing press outlets for defamation.
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That's been going on for a while, but that's stepped up with suits against, for example, the Wall Street Journal.
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And he is going after broadcast stations and those sorts of things.
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But even if you just focus on the executive orders, there's a sort of effort to, through those orders, direct federal agencies to carry out a campaign, a sort of whole of government.
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and whole of society, frankly, campaign against a lot of different institutions, civic institutions, but beyond that as well.
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So if you think about executive orders that targeted and sought to sanction law firms, we'll talk a lot about universities, right?
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They have been in Trump's sites the whole time, businesses across different sectors, celebrities, talk show hosts,
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scientists and scientific journals, broadcasters, museums, libraries, international students.
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This campaign is touching all of that and more
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And it is being done through the executive order.
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That's sort of the campaign's initiator.
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And then the federal agencies who are without a doubt supportive and behind this campaign are now carrying that out, whether it's Homeland Security or the Education Department, various scientific agencies and the like, and of course the FCC for broadcast stations.
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So there's an executive order.
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There are directives to agencies to go out and eliminate so-called DEI, diversity, equity, inclusion, from all government contracts to bar law firms and their associates and partners from courthouses because they represented clients that Trump doesn't like, doesn't think should have been represented.
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And the government now in Trump 2.0 is sort of leveraging the
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federal funding in particular, other sanctions too, but there's an enormous focus on leveraging federal funding to punish, to suppress, to censor a speech.
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And it's working to some degree, right?
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So Harvard has sued, for example, and some of the law firms sued, but a lot of people didn't.
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A lot of people in these regulatory realms have capitulated, decided it's not worth it.
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So they've just gone ahead and stopped speaking the words that the Trump administration doesn't want them to say, or taking positions or advocating for things that the Trump administration disfavors.
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So this is a much more on the ground use of executive power, impactful campaign.
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This isn't just the president sort of bloviating about these things.
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He's actually doing things that have serious impacts for free speech, press and assembly.
00:14:40
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I appreciate that overview.
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You know, I wrote down punish, censor, suppress.
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I mean, these are very strong and
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devastating words and impacts.
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I want to take a moment and ask you a question and maybe it's implicit, but I think it'd still be helpful to hear you talk about all of this to what end, right?
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Is the goal to remake government?
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Is the goal to remake issues and ideology based on what Trump and his kind of followers think?
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Like what is really at the heart of this?
Legal Pushbacks Against Trump's Actions
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Yeah, I mean, it could be both and, right?
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There is an effort to sort of refashion government in the form of what's often referred to as a unitary executive.
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Everything flowing from the office of the president, right?
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He's in charge.
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He has, as Stephen Miller was caught saying, plenary authority.
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He can do what he wants.
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Executive orders, for example, typically apply in the executive branch, right?
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And they are typically executions of laws that Congress has passed.
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This is a very different model that he is pursuing, the president.
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In some cases, he's simply bypassing or ignoring federal appropriation laws, protections for universities and others before their grants can be terminated, just all of that.
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seems to be of no consequence to this model of the presidency.
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So there's that.
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I do think there is a very strong ideological component, and that's obvious from the institutions and the people who are being targeted here.
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Think about elite law firms.
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What have they done?
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What is their sin?
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They've represented causes on the left.
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Right.
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That's their primary infraction.
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So he's gone after them.
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Universities, of course, he's gone after, for the most part, elite universities, the Harvards and Columbias and Browns and Pens.
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And the project there, as May Mailman, who's sort of heading up this campaign, is to affect some sort of ideological turn to the right at universities.
00:16:49
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So they're not hiding that as a sort of campaign or purpose.
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And, you know, when they go after Stephen Colbert or Jimmy Kimmel or a broadcast station, there's always an ideological component to it.
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He goes after critics who have said bad things or he would say nasty things about Trump himself or the administration.
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And, you know, the same is true, I think, of libraries, museums.
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Some of that, I think, marries the new form of presidency to the ideological component, because what he seems to be trying to do, and the administration in general seems to be trying to do, is to undermine the legitimacy of any institution that can fact check or otherwise check
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the Trump administration.
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That's why law firms, that's why the press, that's why scientists and so forth, and academics, of course.
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No, I appreciate that.
00:17:51
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And I think one of the things I want to ask you, and this is something I struggle with as I go to facilitate workshops and trainings with members, especially of the higher education community about the First Amendment and its principles and how they apply on campuses.
00:18:05
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The reality is the First Amendment exists largely to prevent things that
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like what's happening now, right?
00:18:11
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It's supposed to protect people from the government engaging in, you know, viewpoint discrimination and all the things that we're talking about.
00:18:19
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And I'm wondering, what do you say to people in this moment as we see, you know, the First Amendment and all of its kind of attenuated rights be undermined and sort of really desecrated sort of at every turn?
00:18:32
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Yeah, this is a real stress test for First Amendment rights and, in fact, for courts to the extent they are trying to uphold those rights.
00:18:43
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And I suppose I would say that, first and foremost, this is the most impactful period in American history for First Amendment purposes since the McCarthy era of the 1950s.
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And I don't think that's an overstatement at all.
00:18:58
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The number of different things that the Trump administration is trying to do and their impact on free speech and press.
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is unprecedented.
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We've never had a president use executive power in this fashion, whole of government, whole of society.
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We have had presidents who wanted to do that, Richard Nixon comes to mind, and have been unable to effectuate those designs.
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But here we have a president who has had some success,
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in part getting people to capitulate even without applying the order to them.
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But to the extent, here's the good news, the silver lining is to the extent that people have pushed back, they have won First Amendment cases.
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Not all of them, but this administration has an abysmal
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Judicial record in terms of First Amendment cases, it has lost all of the law firm cases it has litigated.
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It has lost every bail hearing that involves an international student that the administration targeted for deportation.
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They just lost a huge case.
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Maybe we'll talk about the Harvard University case with respect to Harvard's funding.
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and a case in front of Judge Young in the district court in Massachusetts involving the targeting of international students for arrest, detention, and deportation.
00:20:20
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And there have been lots of other areas where the administration has been successfully challenged when it's tried to, for example, force people who receive federal funds to disclaim DEI.
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or to disclaim and cease advocating what it calls gender ideology, sort of non-binary gender idea.
00:20:43
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So that's the good news, right?
00:20:45
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A lot of those cases are preliminary.
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They're going to go up on appeal.
00:20:50
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We will see what appellate courts have to say, maybe even the Supreme Court in one or two of these areas, who knows.
00:20:58
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But that's the record so far.
00:21:01
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You have to be willing to challenge, and that's not a small thing.
00:21:05
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But if you do, in many of these cases, I don't think the First Amendment issues are very close.
00:21:12
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The law firms are a great example, right?
00:21:14
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Under what authority can you single out a law firm because of the clients it represented and just bring the full weight of the federal government down on it?
00:21:23
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Courts have reacted to that as you'd expect they would.
00:21:25
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It's a clear violation of the First Amendment to the Constitution.
00:21:30
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So the First Amendment is holding to some degree, right?
00:21:34
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But it's a lot to push back.
00:21:36
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And it can't do anything about institutions or individuals who just decide, I'm going to capitulate.
00:21:43
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I'm going to comply in advance.
00:21:45
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The First Amendment cannot address that problem.
00:21:50
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So that's what I'd say, I think, about how the First Amendment has sort of played out or how those issues have played out so far.
00:21:56
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And you anticipated where I was going next, which is to start sort of with what I would also consider the bright spot, which has been some of these court victories.
00:22:05
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And, you know, since the center really focuses on a first amendment in higher ed, I wanted to start with the Harvard court victory and its challenge to the Trump administration's decision to end over $2.8 billion in federal grant funding.
00:22:18
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And I was wondering if you could talk a little bit about the first amendment implications of judge Burroughs decision.
00:22:25
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Maybe just get in the weeds a little bit, you know, and then also whether you think that, you know, these arguments are going to have, I know it's hard to tell because every district court and every, you know, is different.
00:22:36
Speaker
But if you think that they're likely to have similar traction across the country.
00:22:41
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Yeah, the Harvard case started with a very lengthy list of demands to Harvard University to change everything from how it admitted students to what was taught in its classrooms and by whom.
00:22:55
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Sort of a broadside against academic freedom, institutional autonomy, and First Amendment rights.
00:23:03
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And Harvard, I think, quite rightly said, no, we're going to do some of the things.
00:23:08
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We're already doing some of the things you want us to do.
00:23:11
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We're not going to give up our institutional autonomy.
00:23:14
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And the principal sort of wedge that the administration has tried to use against Harvard, not the only one, because I think Harvard at this point, I've lost track of how many different investigative proceedings it's subjected.
00:23:26
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It's been subjected to 10 and maybe more than that at this point.
00:23:31
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But this particular one, the administration said, was about anti-Semitism.
00:23:35
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So it said the university takes federal funds, and that means it's obligated to protect its students against anti-Semitic harassment, racial harassment, those sorts of things, and the creation of a hostile environment on campus.
00:23:50
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And you didn't do that, Harvard, and that's why we're canceling your cancer research funds, your educational funds, and every other fund that you would otherwise be entitled to.
00:24:00
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So there are lots of issues and problems with that approach.
00:24:04
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One is if you are going to accuse a university of that sort of offense, there has to be a hearing.
00:24:11
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There has to be some sort of process under federal law before the grants are terminated.
00:24:15
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Well, the administration didn't bother with any of that.
00:24:18
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As I said before, it doesn't feel obligated to follow the rules that Congress has laid down to execute the laws of Congress.
00:24:26
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So you have those sorts of problems, and Harvard raised those issues.
00:24:32
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But on the constitutional front, on the First Amendment front, it made two arguments.
00:24:35
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One, it said the administration is targeting and pursuing Harvard in retaliation for its protected speech.
00:24:45
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So under the First Amendment, the government cannot retaliate against a speaker for engaging in protected conduct, in this case, speech.
00:24:54
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And the second argument was that Harvard was trying to use its leverage and power over federal funding to impose what is called an unconstitutional condition.
00:25:06
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You can condition funds on things that are relevant to the program you're trying to fund.
00:25:12
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But the Supreme Court has said you can't use that funding power to sort of indirectly affect the First Amendment rights of, in this case, educational institutions.
00:25:25
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And you can't use that power to attempt to impose a sort of viewpoint-based requirements on universities, the funding recipients.
00:25:36
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So on both counts, the judge ruled in favor of the challenger, in favor of Harvard, against the administration, finding that defending itself from the administration was clearly protected speech, as was filing its lawsuit.
00:25:54
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So it decided to fight the administration, and the judge determined that's why it was being retaliated against.
00:26:01
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And in addition to sort of just the timing of all this, the judge went out of her way, I think, to reject in no uncertain terms the idea that this was all about anti-Semitic discrimination.
00:26:14
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The timing didn't support that argument.
00:26:18
Speaker
The breadth of the funding termination, as you said, $2.8 billion, did not support that determination.
00:26:24
Speaker
And oh, by the way, the Trump administration, including Donald Trump himself,
00:26:31
Speaker
had made copious statements that suggested this had nothing to do with anti-Semitism.
00:26:38
Speaker
This was about bringing Harvard to heel.
00:26:41
Speaker
Because if I can bring Harvard to heel, guess what?
00:26:43
Speaker
I'll bet other universities will follow.
00:26:45
Speaker
So retaliation and an abuse of power with respect to the funding mechanism, those were the two sort of First Amendment claims that the judge ruled on.
00:26:56
Speaker
Again, both in favor of the challenger.
00:26:59
Speaker
How that plays out going forward, is that going to be a model that maybe if other universities fight, they will also prevail?
00:27:09
Speaker
I don't know.
00:27:10
Speaker
I mean, so far in a lot of different areas, the retaliation claims have been successful.
00:27:16
Speaker
And part of the reason for that is that this administration, including the chief executive, are so, so transparent about wanting to retaliate against whoever the target happens to be.
00:27:28
Speaker
It's difficult to take any argument to the contrary very seriously.
00:27:33
Speaker
One of the complicating things in the Harvard case, and I think in some of the other cases of only funding, is sort of a highly technical one of whether a district court can entertain these claims at all.
00:27:47
Speaker
There's something called the Tucker Act, and there's a court that hears sort of contract claims that has jurisdiction over federal grants and contracts.
00:27:57
Speaker
And the administration keeps arguing whether that's the court, the only court that can entertain these claims.
00:28:03
Speaker
And the Supreme Court has been ambiguous about that.
00:28:07
Speaker
I guess I'll put it that way.
00:28:08
Speaker
And lower court judges have tried to figure out whether what they're doing is right or wrong.
00:28:13
Speaker
But that could be a potential obstacle to bringing these First Amendment claims in future cases.
00:28:19
Speaker
We'll see.
00:28:20
Speaker
As I listen to you talk about it, it becomes more clear to me why
00:28:26
Speaker
the newest step is this, you know, alleged compact, right?
00:28:30
Speaker
Because they're just, it's just the threat, allegedly, of losing the funds, right?
00:28:36
Speaker
Which, of course, is another question, which is like, is, you know, this goes back to the unconstitutional conditions.
00:28:42
Speaker
And I imagine that's what's going to be at issue with the compact, which is like coercive action and conditions.
00:28:49
Speaker
As you mentioned earlier about the First Amendment, right?
00:28:52
Speaker
The First Amendment really can't
00:28:55
Speaker
help when people capitulate or engage in anticipatory compliance.
00:28:59
Speaker
But another way that First Amendment and the law, I think, can't catch up is to the chilling effect that's happening.
00:29:06
Speaker
So even though Harvard had what everyone considered this wonderful, this great legal victory, right, the chilling effect, both at Harvard and across the United States, is still occurring.
00:29:17
Speaker
And I don't know what the answer is, but I'm curious if you have any suggestions of what
00:29:22
Speaker
folks in higher education can do to mitigate the effects of the fear and the impact of self-censorship?
00:29:29
Speaker
Yeah, that's really hard.
00:29:30
Speaker
You know, part of the reason it's difficult is that the First Amendment, the doctrine of the First Amendment recognizes chill as a particular type of harm and seeks to protect against it.
00:29:44
Speaker
But when push comes to shove and you try to bring a legal claim on that basis, right, a lot of courts will say, well, you can't prove.
00:29:51
Speaker
that chill has occurred.
00:29:52
Speaker
It's speculative, right?
00:29:54
Speaker
Almost as if they want some empirical evidence for something that for the people chilled is quite obvious and maybe to others.
00:30:03
Speaker
There's no question that the administration is strategically relying on
00:30:08
Speaker
a sort of broader net being cast than its executive orders might otherwise have if you can sort of scare people into submission, right?
00:30:17
Speaker
So if I'm a company and I support a diverse workforce and I advertise that on my website, am I still going to do that?
00:30:25
Speaker
if the Department of Labor is going to read my website and maybe send me a letter and then open an investigation, et cetera, et cetera.
00:30:33
Speaker
The same for universities.
00:30:35
Speaker
The threat of the termination of funding is a real cudgel that this administration has used against institutions of higher education.
00:30:48
Speaker
It's difficult for me to sort of sit here and advise them as to how they should manage this.
00:30:55
Speaker
I mean, the instinct is to say, well, you should stand up to this.
00:30:58
Speaker
You shouldn't give in.
00:30:59
Speaker
You should be aware of what the law actually requires and certainly do that.
00:31:05
Speaker
But going beyond that, just to appease an administration that, you know, might be vindictive if you don't do what it wants, I think is a sort of dereliction of duty, right?
00:31:21
Speaker
It's harming your community.
00:31:25
Speaker
It's infringing on the rights of your faculty if you're sort of going to them and suggesting, hey, maybe you shouldn't teach this or maybe you shouldn't say that in the classroom.
00:31:35
Speaker
So I think they have to stand firm, educational institutions, even though they're facing pressure, not just from the administration, but as you know, from donors and from alumni and from the public at large, right?
00:31:51
Speaker
This has really put universities in a very difficult spot.
00:31:56
Speaker
But the one thing I think they cannot do
00:31:59
Speaker
is to sort of give away their institutional autonomy in order not to be targeted by a retaliatory executive.
00:32:10
Speaker
No, thank you.
00:32:11
Speaker
And I think maybe we'll get to this later, but sort of leads to the question or something I think a lot about, which is while
00:32:19
Speaker
universities are in a very unenviable position, there is a potential opportunity for collective action that we haven't seen.
00:32:27
Speaker
And I think that's, it's a challenge.
00:32:30
Speaker
Okay, so I could keep talking all about freezing funding, but I wanna move us on because I wanna make sure we also get to protest and hopefully to campus speech.
00:32:41
Speaker
Listen, particularly in the wake of Charlie Kirk's assassination, I wanna talk about campus protests and assembly
00:32:49
Speaker
You know, earlier this year, long before Kirk's death, you published a law review piece entitled New Threats to Campus Protest, which will also be in the episode notes.
Campus Protests and Policy Changes
00:32:57
Speaker
And in that article, you highlighted some of the steps that were taken by colleges and universities in light of the Israel-Hamas war, which gravely limited student activism.
00:33:07
Speaker
And these included canceling already permitted demonstrations, masking bans, limits on who's allowed to organize and participate in demonstrations,
00:33:16
Speaker
and regulations addressing whether and where signage displays and sound amplification can be used.
00:33:21
Speaker
So if all of that was already taking place before Kirk's death, what do you foresee in the coming months for expression and assembly rights, and in particular with regard to safety and security?
00:33:34
Speaker
One of my concerns is that while safety and security, of course, is a serious and real issue, I worry that it can also be used as a pretext for stifling speech.
00:33:44
Speaker
Yeah, that is a major concern.
00:33:47
Speaker
I would say all of the things that I talk about in the article, plus a whole lot more, are pressing on universities to act in ways that are going to be detrimental to campus assembly and protest.
00:34:02
Speaker
So
00:34:03
Speaker
What I mean by that is what I what I discussed in the article was things that the administrations had themselves done.
00:34:11
Speaker
So what did presidents do and what did campus administrators do in light of what happened with the Gaza related protests?
00:34:22
Speaker
What I didn't discuss in there was what the Trump administration has been doing or what federal legislators or state executives and state legislatures have been up to.
00:34:33
Speaker
And they, too, have been very focused, hyper-focused on campus protests.
00:34:38
Speaker
So you've got the Trump administration sort of taking a very important and vocal component of campus protests out of play by snatching off the street people
00:34:49
Speaker
People who organized protests, who happen to be studying on a visa or some other legal means, are they going to, to the extent they're here, protest on campus?
00:35:01
Speaker
I would suspect not, given the threat to them, like being detained and deported.
00:35:08
Speaker
The administration has pressed universities to be even stricter.
00:35:13
Speaker
with regard to enforcing protest policies.
00:35:17
Speaker
So change your disciplinary rules to make it easier to discipline students who break the rules, enhance your punishments.
00:35:27
Speaker
And some of the universities that have, you know, sort of accepted a deal, so-called deal from the administration, have agreed to do that.
00:35:34
Speaker
Right.
00:35:35
Speaker
They've agreed to masking bans and maybe to apply a definition of anti-Semitic speech that's going to be broader than the First Amendment should allow.
00:35:47
Speaker
So there are countless pressure points with respect to campus protests.
00:35:52
Speaker
Now comes the killing of Charlie Kirk.
00:35:57
Speaker
And undoubtedly, that is going to cast a pall over public events at universities and could be, as you say, used as a pretext for denying permits or just not allowing campus protests to occur.
00:36:14
Speaker
There are First Amendment standards here.
00:36:17
Speaker
There are First Amendment limits to what universities, I'm thinking of public universities, can do.
00:36:23
Speaker
with respect to the rules of protest on campus, but it's going to place more pressure on public gatherings.
00:36:31
Speaker
And there are serious safety concerns there.
00:36:33
Speaker
I don't mean to downplay them, nor would I downplay sort of the anti-Semitism that was apparent on some campuses.
00:36:40
Speaker
But the question is the proportionality.
00:36:44
Speaker
of the response.
00:36:45
Speaker
And for me, that's a real concern.
00:36:47
Speaker
I'm writing an article now, sort of follow-up article that I was entitling killing campus protests before Charlie Kirk was murdered.
00:36:57
Speaker
So I think that title probably isn't appropriate or maybe it's more appropriate, but maybe a requiem for campus protest, because I'm not sure we're going to see campus protest as we know it, as Americans in our history,
00:37:13
Speaker
ever again.
00:37:14
Speaker
And by that, I do mean sort of the 1950s, 60s, 70s, into the 80s, those sorts of campus protests, which were very impactful in terms of everything from desegregation to ending the Vietnam War.
00:37:30
Speaker
I don't know that you can sustain those in an environment where students in particular feel like the heavy hand can be brought to bear if they step over now an increasing number of lines that are being drawn on campuses.
00:37:47
Speaker
Oh, I appreciate your candor, but it certainly is a very somber prediction.
00:37:52
Speaker
I'm going to keep going on this topic because one of my pet issues and one that I feel like
00:37:59
Speaker
was largely overlooked in the rush to interpret the meaning of Kirk's death through our polarized politics is the profound interplay between the First and Second Amendments.
00:38:10
Speaker
You were one of a handful of legal commentators to highlight this when you posted a piece on your substat called When the Second Amendment Threatens the First, and you wrote, Charlie Kirk was not killed by
Firearms and Peaceful Assembly
00:38:20
Speaker
words.
00:38:20
Speaker
Like far too many others in the United States, he was murdered with a high caliber firearm.
00:38:25
Speaker
Easy access to firearms is an existential threat to peaceful discourse.
00:38:29
Speaker
And I was just hoping you could maybe outline some of the ways that First Amendment expressive rights are chilled by the Second Amendment, and especially in open carry states and in public venues.
00:38:43
Speaker
Yeah, I could also ask, you know, what would we do about that?
00:38:45
Speaker
But I'm not sure.
00:38:47
Speaker
what there is to do post, you know, Bruin and with the current Supreme Court.
00:38:51
Speaker
But you're welcome to discuss any or all of those questions.
00:38:54
Speaker
Sure.
00:38:55
Speaker
Yeah.
00:38:55
Speaker
No, I've written about all of that.
00:38:57
Speaker
I don't know that any of my proposed solutions would be effectual, but I did have some ideas about that.
00:39:03
Speaker
But as you said, they have to be consistent with the second amendment.
00:39:06
Speaker
So one way that, you know, exercising Second Amendment rights, at least accessing firearms and then using them for illicit purposes can chill speech is exactly the Charlie Kirk situation.
00:39:18
Speaker
Right.
00:39:19
Speaker
One person with a high caliber rifle who murdered another person who was on campus to speak.
00:39:26
Speaker
at an event could cause immeasurable damage to other people's First Amendment rights.
00:39:33
Speaker
You may not be able to protest because there's a danger now that somebody who lawfully possesses a gun may misuse it, right?
00:39:41
Speaker
So that's one example.
00:39:45
Speaker
I've written quite a bit about carrying firearms to public protests, which, you know, when I talk about that to people, they say, well, that's just crazy.
00:39:55
Speaker
Certainly a gun doesn't belong in that environment.
00:39:58
Speaker
And there's common sense to that.
00:40:00
Speaker
And there's data supporting that common sense.
00:40:03
Speaker
There are studies that show that people who think that there will be guns at a protest are less likely to attend, less likely to speak if they attend, less likely to bring their families.
00:40:15
Speaker
Right.
00:40:15
Speaker
It's it's an intimidating environment.
00:40:19
Speaker
And in that context, it could very well chill, even peaceful protests or result in a peaceful protest becoming a place where mayhem occurs, like physical harm and death.
00:40:34
Speaker
So, you know, there's a question of spatiality there.
00:40:39
Speaker
Where do guns belong, right?
00:40:41
Speaker
Should they be on campuses?
00:40:43
Speaker
Should they be at protests, right?
00:40:44
Speaker
Well, when you carry them to those places where there are obvious First Amendment events going on and First Amendment rights in play, you potentially threaten those rights.
00:40:55
Speaker
And, you know, one of the big questions, well, what can you do about that?
00:40:58
Speaker
So many states have very liberal public carry laws.
00:41:02
Speaker
In a lot of states, you don't even need a license to
00:41:04
Speaker
to get a gun and then to carry it.
00:41:06
Speaker
You can carry openly in some states or conceal or both.
00:41:10
Speaker
You know, there are things, I won't go too far into the Second Amendment area.
00:41:16
Speaker
There's a concept called sensitive places, right?
00:41:19
Speaker
There are certain places where guns historically have been banned because of these types of concerns, right?
00:41:25
Speaker
That could be schools and universities,
00:41:28
Speaker
It could be government buildings, the court is recognized, can be public protests.
00:41:34
Speaker
So in a lot of places where people frequently protest, right, government buildings come to mind or public parks, there's historical support for banning public carry in a number of those places.
00:41:46
Speaker
Is it enough historical support for the court?
00:41:49
Speaker
We'll find out, right, presumably at some point.
00:41:52
Speaker
So there's that and there are lots of other different legal interventions that one could make to try and make public protests safer if in the event that people are going to try and carry firearms into those spaces.
00:42:06
Speaker
But it's a real problem, right?
00:42:08
Speaker
The First Amendment's theory is we effectuate policy change through peaceful discourse.
00:42:15
Speaker
What is the Second Amendment's theory of peaceful change?
00:42:20
Speaker
Does it have one?
00:42:22
Speaker
How do you reconcile the right to publicly carry a lethal weapon and the right to peacefully assemble and engage in dissent?
00:42:33
Speaker
It's a really difficult problem.
00:42:35
Speaker
And it's become more difficult as more people have decided to try and normalize carrying weapons in public and not concealed, right?
00:42:45
Speaker
I'm talking about, you know, long guns.
00:42:49
Speaker
and things that are sort of inherently intimidating to a lot of people.
00:42:54
Speaker
So that's a really important intersection.
00:42:57
Speaker
It's something we should be paying more attention to.
00:43:00
Speaker
And in the Charlie Kirk example, all of the focus, it seemed to me, was on speech.
00:43:04
Speaker
What was said?
00:43:06
Speaker
What did he say?
00:43:07
Speaker
And what did the killer say?
00:43:08
Speaker
And, you know, on that very same day, there was yet another school shooting.
00:43:14
Speaker
not far apart in terms of minutes from Charlie Kirk shooting.
00:43:18
Speaker
So we should be able to talk about both of those things.
00:43:22
Speaker
And one of the frustrating things for me anyway about public discourse is, well, from the right, it's always too soon to talk about firearms regulation.
00:43:33
Speaker
But with respect to casting blame for the murder of Charlie Kirk, it was not too soon to talk about words.
00:43:42
Speaker
and rhetoric.
00:43:44
Speaker
So there we are.
00:43:46
Speaker
I appreciate your discussing this with me, and I'm glad you mentioned the other shooting.
00:43:51
Speaker
I was going to say it's not just the normalization of weapons and open carry, but the normalization of the amount of violence we have come to anticipate and expect in our society.
00:44:01
Speaker
And it also makes me think about Unite the Right in 2017, before the center had even been founded.
00:44:08
Speaker
That was one of the issues that came up.
00:44:11
Speaker
And
00:44:11
Speaker
I'm sure we all recall that the ACLU took a lot of flack and there was like a moment there with Heather Heyer's death where there was this discussion about those two things.
00:44:20
Speaker
And then I'm sure people have still been studying it, but it's definitely been more in the background.
00:44:26
Speaker
Okay.
00:44:27
Speaker
My third big bucket that I wanted to cover today is classroom speech.
00:44:30
Speaker
Obviously, I'm going to do a quick, a quick refresher for our listeners that
00:44:35
Speaker
What professors teach in the classroom and how they teach it are key components of academic freedom.
00:44:40
Speaker
They're delineated in the AAUP's 1940 Declaration, are protected so long as the professor's instruction aligns with disciplinary competence and professional standards.
00:44:50
Speaker
So we've seen a movement in the last number of years by state legislatures to pass laws that interfere with professors' autonomy to plan and teach course material
00:44:59
Speaker
including attempts to ban books, subject areas like critical race theory, or particular perspectives on topics like the history of slavery in America.
00:45:07
Speaker
President Trump has used executive orders to attempt the same in spite of the fact, as you point out in your sub stack, the president has no direct authority to dictate what is or isn't taught in university classrooms.
Impact of Executive Orders on Academia
00:45:19
Speaker
Despite this, we have seen firings at Texas A&M and the resignation of the college president.
00:45:25
Speaker
As a result of the discussion that addressed conceptions of gender in a children's literature class, now Texas Tech has become what I believe is the first public university to provide written guidance requiring compliance, not only with current state and federal law, but also with Trump's executive order that recognizes only two human sexes, male and female.
00:45:45
Speaker
This requirement allegedly applies to the instruction of students.
00:45:48
Speaker
In your post, you describe this as hogwash, and I want you to tell us why.
00:45:54
Speaker
Yeah, let me add something first.
00:45:56
Speaker
So at public universities, of course, you have First Amendment rights if you're a public employee.
00:46:01
Speaker
So you're right about the academic freedom part, and it is supported by, related to, First Amendment rights to engage in discourse in the classroom.
00:46:12
Speaker
With all of that, as you say, you still see efforts to dictate or shut down not just subject matters, but particular viewpoints.
00:46:22
Speaker
being addressed in the classroom.
00:46:25
Speaker
And what I was referring to as hogwash is the notion that the president of the United States had somehow directed universities across the United States to forbid any discussion of non-binary gender in the classroom.
00:46:42
Speaker
That is hogwash.
00:46:43
Speaker
The president executes the laws of Congress.
00:46:46
Speaker
There is no law of Congress that authorizes the president
00:46:51
Speaker
to make that directive.
00:46:52
Speaker
And even if there were, it would be an unconstitutional law.
00:46:57
Speaker
It would violate the First Amendment.
00:47:00
Speaker
So to our earlier discussion of how do you broaden the effect of these executive orders,
00:47:05
Speaker
which seemed to apply only to sort of contracting or some narrow area.
00:47:11
Speaker
Well, you convince people that the edict applies across the entirety of society.
00:47:18
Speaker
And in the Texas A&M case, you had a student who interrupted a classroom discussion
00:47:25
Speaker
videotaped and audiotaped the interaction with her professor and told the professor, what you're doing is illegal because Trump said so.
00:47:37
Speaker
That is hogwash.
00:47:39
Speaker
That is dangerous, right, to classroom teaching and to free inquiry in the classroom.
00:47:48
Speaker
It pits students against their instructors.
00:47:52
Speaker
It pits the university against the administration, I suppose.
00:47:56
Speaker
The indirect way that the administration's position could affect the
00:48:02
Speaker
The university is because of the threat of termination of funding.
00:48:05
Speaker
Well, you receive federal funds and therefore I can dictate what goes on in your classroom.
00:48:10
Speaker
The one does not follow from the other.
00:48:12
Speaker
But the universities are running scared.
00:48:15
Speaker
Or in the case of Texas A&M, maybe not running scared, maybe they support
00:48:19
Speaker
this, right?
00:48:20
Speaker
There was a lot of pressure from a state legislator who saw this video, amplified it.
00:48:27
Speaker
Three people on the faculty lost their jobs over this.
00:48:30
Speaker
And then, as you said, the president resigned, president of the university.
00:48:34
Speaker
As to the guidance, right?
00:48:35
Speaker
Well, even if you were going to take the position that you can't talk about gender ideology, that's what the executive order says.
00:48:42
Speaker
How are you going to effectuate that?
00:48:44
Speaker
What does that look like in a classroom?
00:48:46
Speaker
They put up guidance, then they quickly took it down.
00:48:49
Speaker
So I noticed they put it up, right?
00:48:51
Speaker
And then I was going to look at it and like, oh, it's gone.
00:48:54
Speaker
Part of the reason for that is probably it is impossible, nearly impossible anyway, to describe in any detail what you are asking faculty not to talk about.
00:49:05
Speaker
I mean, it's everything from can I have a rainbow flag in my classroom?
00:49:09
Speaker
Can I wear a rainbow lapel?
00:49:11
Speaker
Can I say my office is a safe space for discussion of gender issues or other sexual orientation and so forth?
00:49:18
Speaker
I kept thinking about my own teaching.
00:49:20
Speaker
So I teach constitutional law and I teach a unit on the Equal Protection Clause, and that includes gender equality.
00:49:29
Speaker
As you know, gender is not today what it was when the Supreme Court addressed it in 1970.
00:49:35
Speaker
We have very different conceptions of it.
00:49:37
Speaker
We have a very robust debate about what gender is.
00:49:42
Speaker
And I preface my class with that discussion.
00:49:46
Speaker
Have I run afoul of the president's executive order?
00:49:50
Speaker
Is my university going to terminate my employment or suspend me from the classroom?
00:49:53
Speaker
I sure hope not.
00:49:55
Speaker
This is dangerous stuff.
00:49:57
Speaker
It's not clear what the executive order requires anyone to do.
00:50:02
Speaker
And it's not clear that the university system in Texas, the systems that have tried to sort of comply, as they call it, with the executive order, know what they're doing.
00:50:14
Speaker
And so there's a vagueness component to this, but that also leads to overcompliance, right?
00:50:20
Speaker
So it all comes back to the same sort of principles that even if there's not a law on point, if I think I might be running afoul of it, I will trim my sales.
00:50:30
Speaker
I will no longer give my class that preface with regard to gender.
00:50:34
Speaker
I will teach it as binary.
00:50:37
Speaker
Even though there are cases in the book now about transgender individuals and their equal protection rights.
00:50:43
Speaker
How do you do this?
00:50:44
Speaker
You can't.
00:50:45
Speaker
So all of that's a long way of saying, you know, as an academic myself, I have a personal stake.
00:50:53
Speaker
I suppose, in how this all shakes out.
00:50:56
Speaker
But I have a strong conviction, and I think the law is on my side, that the government can't dictate what I teach about gender, as long as it's germane, right?
00:51:07
Speaker
It relates to what I'm supposed to be teaching in the classroom.
00:51:11
Speaker
But the Texas A&M example is a good one, even though the law, I think, is clearly on the side of the instructor and others.
00:51:19
Speaker
They've been terminated.
00:51:21
Speaker
So they will have to sue, assuming they're not welcome back, in order to get their jobs back.
00:51:28
Speaker
You know, it's a very difficult cycle.
00:51:30
Speaker
And I often say in the workshops I do that the law is a blunt instrument.
00:51:34
Speaker
And I think that this is where we sort of see that, right, where we know that the law might be on our side, but that doesn't help a professor who has to decide what the rules mean and
00:51:46
Speaker
are likely to err on the side of excessive caution and or chilling and or removing material from the classroom.
00:51:54
Speaker
So it's really a challenge.
00:51:55
Speaker
And it's not, you know, it's not a brand new issue.
00:51:57
Speaker
There have been sort of language issues in classrooms, as you know, when following those conflicts.
00:52:02
Speaker
Some of them come from the left.
00:52:04
Speaker
and students and their sensibilities.
00:52:06
Speaker
So you face that in the classroom and you should endeavor to be current with respect to what the debate is all about and so forth.
00:52:16
Speaker
And hopefully you get a measure of grace from students when you make a mistake.
00:52:21
Speaker
This is quite different.
00:52:22
Speaker
This is the government trying to tell me, in effect,
00:52:27
Speaker
what I can and cannot discuss in the classroom.
00:52:29
Speaker
So as I said, we're in a dangerous place with respect to higher education.
00:52:36
Speaker
And I think similar, I mean, there are different legal applications, but extramural speech for faculty too, I think that's sort of maybe we have time for one more question, which is like how many
00:52:48
Speaker
faculty were sanctioned and even students, right, for not just their own posts, but forwarding on other people's posts that made comments about Kirk's death that may or may not have been, you know, appropriate, according to, you know, the government, which, again, really runs afoul of all the things that we're talking about.
00:53:07
Speaker
Now, I don't know if you have any thoughts about that.
00:53:10
Speaker
I do, as a matter of fact, as someone who engages in extramural speech, including this, this interview itself, right, potentially could be used against me in some fashion.
00:53:22
Speaker
I work at a public university.
00:53:24
Speaker
I have the right to comment as a citizen on matters of public concern.
00:53:27
Speaker
That's what the First Amendment says.
00:53:29
Speaker
Unless and until whatever I say has some sort of significant disruptive effect inside the building.
00:53:36
Speaker
And, you know, that's the sort of First Amendment standard for government employees.
00:53:41
Speaker
And then, of course, there's academic freedom that applies to private university employees.
00:53:46
Speaker
And look, I mean, it's interesting.
00:53:48
Speaker
You know, some people have called this now the woke right.
00:53:52
Speaker
The sort of embrace of canceling people that the right railed against for many, many years and all that.
00:54:01
Speaker
It's wrong no matter who's doing it.
00:54:03
Speaker
The distinction I always like to sort of tease out, though, is that it's one thing for social opprobrium to be brought to bear on somebody for, say, using the N-word.
00:54:13
Speaker
or saying something offensive.
00:54:15
Speaker
It is quite another for the government, whether it's federal, state, or local, to intervene to punish someone for what they've said.
Retaliation Against Free Speech
00:54:23
Speaker
And if you're a public employee at a public institution, that's really what's happening.
00:54:27
Speaker
And it's being done
00:54:30
Speaker
I think to sort of show that you are attentive to the concerns of a retaliatory administration.
00:54:41
Speaker
It's another form, in my view, of capitulation.
00:54:43
Speaker
There are things I wouldn't say, right, in the wake of what happened to Charlie Kirk.
00:54:49
Speaker
But a lot of what I've seen is that people are being punished for sort of publicizing what his views were.
00:54:57
Speaker
which isn't the same as celebrating murder.
00:54:59
Speaker
Those are two very different things.
00:55:01
Speaker
I will say in my own substack, when I wrote about Charlie Kirk, when I just mentioned his name, I had four times as many views as anything else I've written.
00:55:11
Speaker
So I don't know who's reading it, but I have a sense of who might be reading it because there are people now devoted to weeding out academics and
00:55:20
Speaker
who say the wrong thing.
00:55:23
Speaker
And, you know, fortunately for me, I suppose I did not get contacted by either the internet trolls or my university for anything I wrote.
00:55:36
Speaker
But that is the danger.
00:55:38
Speaker
I did a different interview a couple of weeks ago.
00:55:41
Speaker
They were having a hard time getting guests to come on.
00:55:45
Speaker
because the guests were afraid to say anything negative about anything the Trump administration was doing.
00:55:52
Speaker
I don't feel like I have that luxury and I wouldn't do that anyway.
00:55:56
Speaker
I feel like people should speak out.
00:55:59
Speaker
I'm not going to capitulate.
00:56:01
Speaker
But the chill part of this, which we talked about earlier, is very, very
Public Misconceptions of the First Amendment
00:56:05
Speaker
widespread.
00:56:05
Speaker
And it shows up in places like that every day.
00:56:10
Speaker
I want to follow up with two comments.
00:56:12
Speaker
One is that not everybody is as courageous as you, and I admire that.
00:56:16
Speaker
And I hope that it will inspire some of our listeners to act similarly.
00:56:21
Speaker
And second, I just I want to reiterate how important one of the things you said is, which is that there are consequences for expression, right?
00:56:29
Speaker
Just because speech is, quote unquote, free doesn't mean there aren't consequences.
00:56:33
Speaker
The First Amendment is about not having consequences from the government.
00:56:36
Speaker
And I think that people really do not understand that.
00:56:39
Speaker
Right.
00:56:39
Speaker
It doesn't mean that there won't be responses from people that you work with, people that you know.
00:56:44
Speaker
Right.
00:56:45
Speaker
The whole idea is that the government is a public employee doesn't have a role in responding, retaliating, coercing, suppressing.
00:56:56
Speaker
your ideas.
00:56:57
Speaker
And I just think that not enough people, I mean, this is my experience, even understand that the First Amendment is about the government.
00:57:03
Speaker
And so, you know, I'm hopeful that this episode, among other things, will help people to understand more specifically, not just generally of like, oh, the administration is doing these bad things, but specifically why they are so
00:57:18
Speaker
destructive to like what underpins our democracy and all of its like democratic institutions, including higher education.
00:57:27
Speaker
Okay.
00:57:27
Speaker
So with that, we always end by asking our guests if they have some kind of action that folks can make towards the conversations we've been having.
00:57:38
Speaker
And in this case, I think it could be something to think about, something to read, something to do vis-a-vis expression or assembly in higher ed.
00:57:46
Speaker
And I welcome any thoughts that you have.
00:57:49
Speaker
Yeah, well, I'm just a law professor, so take what I have to say with a grain of salt.
Supporting Academic Freedom
00:57:55
Speaker
But I think with respect to higher education, right, if you're fortunate enough to be a donor, you have influence over what higher education does.
00:58:04
Speaker
If you are an alum of a university, you can also make your voice heard.
00:58:11
Speaker
And so they have that information, right?
00:58:14
Speaker
What are people who went to this university and prized their experience thinking?
00:58:19
Speaker
about what's going on.
00:58:20
Speaker
You have to stay aware of events as they're happening with respect to higher ed and with respect to other things.
00:58:29
Speaker
And I think, you know, it's probably going to sound trite, but vote.
00:58:34
Speaker
We don't actually talk about these things as if they're on the ballot.
00:58:39
Speaker
But this agenda that Congress has allowed to happen is very much on the ballot in 2026 in the midterms.
00:58:47
Speaker
One of the reasons Trump's been able to do what he's been able to do is there's zero pushback.
00:58:53
Speaker
from congressional Republicans with respect to funding or the Justice Department, what he's doing with the Justice Department or anything else.
00:59:01
Speaker
So, you know, just like we talk about reproductive rights and other rights, we should be more frequently talking about First Amendment rights when we talk about politics and elections.
Political Nature of First Amendment Rights
00:59:15
Speaker
And the last thing I'll say is with respect to reading, I myself have sort of been doing a deep dive into campus protest books.
00:59:23
Speaker
And there's some really good ones out there.
00:59:25
Speaker
I can share the titles with you when we're finished.
00:59:28
Speaker
But I've already learned a lot.
00:59:30
Speaker
I mean, I knew something about campus protest, but I've been reading books about what was going on
00:59:36
Speaker
at historically black colleges, for example, that that hasn't gotten as much historical attention.
00:59:43
Speaker
And the reason for that is a lot of people think of campus protests as silly or ineffectual or incipient riots or a bunch of entitled students.
00:59:55
Speaker
who are just breaking the rules to break them.
00:59:58
Speaker
No, I think a lot of students are principled and they have something to say.
01:00:03
Speaker
And this is a generation we should be listening to rather than trying always to punish, right?
01:00:10
Speaker
Calling out law enforcement to arrest them and taking all these other measures.
01:00:15
Speaker
So I think, you know, in terms of reading materials, that's sort of where I am and what I'm finding useful.
01:00:24
Speaker
Thank you so much.
01:00:25
Speaker
You've been incredibly thoughtful and generous with your
Conclusion and Key Takeaways
01:00:28
Speaker
time.
01:00:28
Speaker
Is there anything else you want to add before we close?
01:00:31
Speaker
I don't think so.
01:00:32
Speaker
I think we covered an enormous amount, actually.
01:00:35
Speaker
I mean, as you said, there's not time to cover everything that's going on, but we touched on a lot of the major themes, and I appreciate your questions and the exchange.
01:00:44
Speaker
Thank you.
01:00:45
Speaker
Okay.
01:00:46
Speaker
Thank you so much.
01:00:48
Speaker
Well, that's a wrap.
01:00:49
Speaker
Thanks again to Professor Zick for giving us his time and expertise this month.
01:00:54
Speaker
If you haven't already done so, please be sure to register for the final two installments of the Center's Fellows in the Field series to learn more about our Fellows research.
01:01:03
Speaker
Talk to you next time.