SCOTUS Defends First Amendment Rights

MUSIC You will feel better equipped to be a voice of persuasion for family values in your community, state, and nation. And now here is our host of Family Policy Matters, Tracy Devitt Griggs.

Thanks for joining us this week for Family Policy Matters. First Amendment rights are a hallmark of our nation's Constitution, protecting the free exercise of religion and the freedom of speech, among others. When these foundational freedoms are taken away or trampled, citizens have the right to seek justice through our nation's courts. One recent U.S. Supreme Court case addressed the question of whether government officials should be held accountable when they violate constitutionally protected freedoms, even if the violation is no longer taking place. Well, one such case came before the nation's highest court at the beginning of this year. The case dealt with free speech rights on the campus of Georgia Gwinnett College, where school officials stopped a student from sharing his faith in 2016. This courageous student sought justice for this violation of his First Amendment rights. And in early March of this year, the Supreme Court handed down its ruling. Well, joining us today to discuss this case is Tyson Langhofer, senior counsel and director of the Center for Academic Freedom with Alliance Defending Freedom. Tyson Langhofer, welcome back to Family Policy Matters.

Thanks for having me. Well, as we begin, can you briefly remind us what our nation's Constitution says regarding First Amendment freedoms? Sure. Well, the First Amendment is rather short. I'll read it to you and then we'll talk a little bit about those protections. It says that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. That's known as the free exercise clause or abridging the freedom of speech. That's known as the free speech clause or of the press, the press clause, or of the right of the people peaceably to assemble. That's the right to assembly and to petition the government for a redress of grievances. So there's this whole panoply of rights that relate to our ability to express ourselves. And for each of those rights, essentially the way that the court has interpreted this is through various cases that have come out through the years. And the overarching principle really with each one of those rights is that the government can't tell individuals that they can't do certain things when they exercise their religion or when they engage in speech or when they assemble together or when they write something in the press. They can't tell them you can't do that because we disagree at the viewpoint that you're expressing or the content of your speech. And so because what normally happens is you have government that doesn't like certain types of speech and they say, hey, we're going to enact a law that prohibits you from engaging in that type of speech, but we're going to allow others to engage in different types of speech.

Thank you for putting that very simply. Well, there was a very important case recently. Could you give us some background on that?

Sure, absolutely. So we represent Chike Uzabunam, who was a student at Georgia Gwinnett College back in 2016. And Chike is a Christian and he loves sharing his faith. And so after class, sometimes he would just go out to the sidewalk and begin talking with other students that were interested about his Christian faith.

And one day he was out on the sidewalk doing that. And a college official said, hey, you can't do that here. You have to be in the speech zone. Well, Chike didn't know anything about speech zone. So he says, well, tell me about it. He found out that the school had a policy which limited speech to two very small areas on campus that made up less than one percent of the campus, which if you actually took this as a picture, if the campus was a football field, the two speech zones made up about the size of a piece of paper.

And so Chike said, well, OK, I'll do that. So he went and got a reservation to speak in the speech zone. Several days later, he went to the speech zone and began sharing his faith with other students. And several minutes later, police officers came and stopped him from speaking because they said that some other students had complained. And it turns out that Georgia Gwinnett also had a policy which made it disorderly conduct for a student if other students believe that his speech caused them discomfort.

And so they made him stop speaking. And so after that, Chike contacted us and we filed a lawsuit challenging those two policies. Wow. Well, we know the college campus is not the place where we're supposed to encounter uncomfortable ideas, don't we?

I mean, I'm being completely facetious. So tell us more. So what happened with this case? Something very important recently. Correct.

Yes. So what happened was after we filed suit, the college initially argued that Chike's speech was actually unprotected. It was akin to fighting words. So his sharing of the gospel, well, they originally argued that it was unprotected speech. Now, they quickly backed down from that, thankfully. But later they amended both of their policies. And then the court waited until Chike graduated. And then the court dismissed the case because they said that Chike no longer had any damages, essentially, because the school had changed their policy. But what the court did not do is recognize that the college officials had violated Chike's rights when they stopped him from speaking twice because of the content of their speech. And so we appealed that to the 11th Circuit and the 11th Circuit affirmed the district court and said that Chike had no ability to hold those college officials accountable for the violation that they actually engaged in against Chike.

We appealed that to the Supreme Court. And just last month, the the Supreme Court issued a decision in favor of Chike, which held that Chike did have the right to sue college officials, even though he had suffered no monetary harm. Now, the reason this is really important is because many times when people have their First Amendment rights violated, they don't have any monetary harm. If you're just speaking on a sidewalk and a police officer says you can't speak here, you may not have any monetary harm from that.

But there's no doubt that you've suffered harm. You've had one of your most core, fundamental American rights violated. And you should be able to hold that government official accountable for violating that right. And that's what the Supreme Court held. So what will happen with this case going forward?

Now, we basically go back to the district court because essentially what happened was the district court had dismissed the case prior to Chike being able to prove his harm. And so we're back down at the district court and Chike will now have the opportunity to demonstrate that the officials did actually violate his rights when they told him he couldn't speak on a sidewalk on his own college without their permission. And when they told him that they could shut down his speech because other students didn't like what he was saying.

So is this an issue that you all there at ADF have been seeing more and more of on college and university campuses? Yeah, I think during this kind of rise in cancel culture over the last four or five years, you are seeing an increasing number of cases where, unfortunately, students and faculty are pressuring the schools into taking action against other students who they disagree with their speech. And unfortunately, many times that speech is conservative speech, or it's Christian religious speech.

Talk a little bit, if you would, expound a little bit on this concept of free speech, because I think both sides can be guilty of trying to shut down speech that they find offensive. Where's the line that we're supposed to draw on this as far as what is free speech and what crosses into speech that is prohibited? So it's a very narrow area of speech that is actually unprotected speech. And the Supreme Court has basically held that unprotected speech would be fighting words. And that's words that the normal person would essentially cause them to engage in violence if directed at them. So that's to be directed at an individual and cause them to engage in violence. Another one would be incitement to imminent violence.

So that's where a group, a crowd gathers and somebody says, hey, let's go burn down that building. That's not protected speech. They're not conveying an idea.

They're engaging in lawless or encouraging unlawful action. That would be unprotected speech and then defamation or slander. So when you say something untrue about somebody else, that's unprotected. But that's essentially the narrow scope of that.

They're everything else. Most of what you see today known called hate speech is protected speech. And the reason that it has to be so broad is because, as you indicated, we as individuals, we tend to want to censor speech we disagree with on both sides.

That's a normal human tendency. And so what the founders have done and what the Supreme Court has done when they look at this, they said we have to not allow the government to determine what speech is allowed and what speech is not allowed, because we as humans will tend to censor speech we disagree with and not allow other speech. And that typically falls heavily, more heavily on speakers that have a minority viewpoint. So many of these cancel culture types of issues don't ever rise to the level of going to court.

A lot of these infractions happen just between people in small situations. What do we need to do as a nation? I'm asking you kind of a wide question here. But what do we need to do as a nation to begin to address what seems to be a lack of understanding among many people about what free speech actually means in our country? I think we need two things. First of all, we have to become more tolerant of other people's right to speak. And tolerance means a lot of things today.

It means different things to our people. But we as Christians and conservatives have to recognize that the freedom of speech will allow other people on the other side to say things that we really disagree with that may violate our core beliefs. But if their rights to say that are not protected, then our rights will not be as well.

So we have to have that. We have to recognize the right of other people to disagree. Secondly, we have to have courage. We have to have the courage of our convictions and recognize that when we say unpopular things, we may have people come against us. But if we believe that is grounded in truth and that it's important that society abide by that truth, we need to be courageous enough to take some slings and arrows from people if they come at us. And if we do that, I believe that it will help everybody. It will give other people courage to do the same.

Talk a little bit about that second point, because I'm sure you get lots of your more than your fair share of slings and arrows. What kind of mental process do you go through so that you don't react badly to that in that situation? The process for me is I know that society is better when we live consistent with the reality that God created for us. And that reality, that truth is being suppressed and people are being harmed because that truth is being suppressed. And so I want to speak the truth because I know it will be helpful to others. And even if that means that I have to come under attack for that, I believe that it's our duty as Christians to speak that truth so that others, we can help pull them out of the pit and help them avoid that harm. I think we need to put others above ourselves because speaking truth will help others live consistent with that reality.

Right. Well, let's talk a little bit about what this important U.S. Supreme Court ruling will do for First Amendment rights going forward. What this does is it allows more people to be able to hold government officials accountable when they violate their rights. And so before, if a lawsuit may have been dismissed because the government officials argue as well, you didn't suffer any monetary harm, and therefore your case should be dismissed, now a court has to allow that pursuit to go forward, even though the plaintiff didn't suffer any monetary harm.

OK, sounds good. Any other similar cases that ADF is working on? So this issue really affects all of our cases because in almost all of our cases, we face a motion to dismiss and the government argues, well, you can't maintain this claim. And the Supreme Court here has made it very clear that if you allege a government official has violated your rights, you can maintain that claim and have the court rule on it, even if you can't establish any monetary harm.

We're just about out of time for this week. But before we go, Tyson Langhofer, where can our listeners go to follow the work of Alliance Defending Freedom and to hear about other cases that you all are working on? You can go to our website at ADFLegal.org, ADFLegal.org, and that has information about all kinds of cases that are going on and how you can support our work and the clients that we're representing. Well, Tyson Langhofer, Senior Counsel and Director of the Center for Academic Freedom for Alliance Defending Freedom, thank you so much for being with us today on Family Policy Matters.

You've been listening to Family Policy Matters. We hope you enjoyed the program and plan to tune in again next week to listen to the show online and to learn more about NC Families work to inform, encourage and inspire families across North Carolina. Go to our website at NCFamily.org. That's NCFamily.org. Thanks again for listening and may God bless you and your family.