William M. Carter, Jr. (University of Pittsburgh – School of Law) has posted Universities, Free Speech, and Tyranny on SSRN. Here is the abstract:
The Trump Administration has relentlessly attacked freedom of speech. The First Amendment rights of university students, faculty, and staff have been especially targeted. In far too many cases, university leaders have not only failed to defend their constituents from these attacks: they have actively cooperated with the Administration in carrying them out.
The systemic violation of civil rights and liberties throughout history has always required the participation of private persons and non-governmental institutions. As powerful as it is, the federal government cannot by itself suppress the free speech of the hundreds of millions of people in the United States. Only we can do that, either by engaging in self-censorship or by participating in the Administration’s anti-First Amendment crusade.
As a former university administrator, the Author is aware that university leaders have found themselves confronted with a series of difficult, and often agonizing, choices in the Trump era. But by enlisting in the Trump Administration’s war on freedom of speech, they have chosen poorly. They have also acted unlawfully. This Article argues that university administrators can and should be held liable for their actions pursuant to federal civil rights statutes enacted in response to an earlier historical episode in which freedom of speech was sacrificed: namely, the brutal suppression of anti-slavery speech prior to the Civil War and the equally vicious suppression of speech advocating Black civil rights after emancipation.
The Framers of the Nation’s Second Founding following the Civil War believed deeply in the freedom of speech and adopted constitutional provisions and civil rights statutes designed to protect it. This Article argues that two of those statutes, 42 U.S.C. Sections 1985 and 1986, are particularly well suited to addressing university administrators’ participation in the Trump Administration’s campaign to suppress freedom of speech in higher education. Section 1985 provides a federal civil cause of action against any persons, public or private, who conspire to violate federally-protected civil rights and liberties. Section 1986 imposes an affirmative duty on any person (public or private) who knows of such a conspiracy to take appropriate action to prevent it from being carried out. University administrators can be held liable under these statutes for agreeing among themselves or with Trump Administration officials to unlawfully restrict the speech of students, faculty, and staff as well as for failing to protect the targets of those attacks.