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[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]

 
 FIRST AMENDMENT PROTECTIONS ON PUBLIC COLLEGE AND UNIVERSITY CAMPUSES

=======================================================================

                                HEARING

                               before the

                    SUBCOMMITTEE ON THE CONSTITUTION
                           AND CIVIL JUSTICE

                                 of the

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED FIFTEENTH CONGRESS

                             FIRST SESSION

                               __________

                             APRIL 4, 2017

                               __________

                           Serial No. 115-15

                               __________

         Printed for the use of the Committee on the Judiciary
         
         
         
         
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                       COMMITTEE ON THE JUDICIARY

                   BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        JERROLD NADLER, New York
LAMAR SMITH, Texas                   ZOE LOFGREN, California
STEVE CHABOT, Ohio                   SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California          STEVE COHEN, Tennessee
STEVE KING, Iowa                     HENRY C. ``HANK'' JOHNSON, Jr., 
TRENT FRANKS, Arizona                    Georgia
LOUIE GOHMERT, Texas                 THEODORE E. DEUTCH, Florida
JIM JORDAN, Ohio                     LUIS V. GUTIERREZ, Illinois
TED POE, Texas                       KAREN BASS, California
JASON CHAFFETZ, Utah                 CEDRIC L. RICHMOND, Louisiana
TOM MARINO, Pennsylvania             HAKEEM S. JEFFRIES, New York
TREY GOWDY, South Carolina           DAVID CICILLINE, Rhode Island
RAUL LABRADOR, Idaho                 ERIC SWALWELL, California
BLAKE FARENTHOLD, Texas              TED LIEU, California
DOUG COLLINS, Georgia                JAMIE RASKIN, Maryland
RON DeSANTIS, Florida                PRAMILA JAYAPAL, Washington
KEN BUCK, Colorado                   BRAD SCHNEIDER, Illinois
JOHN RATCLIFFE, Texas
MARTHA ROBY, Alabama
MATT GAETZ, Florida
MIKE JOHNSON, Louisiana
ANDY BIGGS, Arizona

          Shelley Husband, Chief of Staff and General Counsel
       Perry Apelbaum, Minority Staff Director and Chief Counsel

           Subcommittee on the Constitution and Civil Justice

                       STEVE KING, Iowa, Chairman
                  RON DeSANTIS, Florida, Vice-Chairman
TRENT FRANKS, Arizona                STEVE COHEN, Tennessee
LOUIE GOHMERT, Texas                 JAMIE RASKIN, Maryland
TREY GOWDY, South Carolina           JERROLD NADLER, New York

                            C O N T E N T S

                              ----------                              

                             APRIL 4, 2017
                           OPENING STATEMENTS

                                                                   Page
The Honorable Steve King, Iowa, Chairman, Subcommittee on the 
  Constitution and Civil Justice.................................     1
The Honorable Steve Cohen, Tennessee, Ranking Member, 
  Subcommittee on the Constitution and Civil Justice.............     3
The Honorable Bob Goodlatte, Virginia, Chairman, Committee on the 
  Judiciary......................................................     5
The Honorable John Conyers, Jr., Michigan, Ranking Member, 
  Committee on the Judiciary.....................................     6

                               WITNESSES

Stanley Kurtz, Senior Fellow, Ethics and Public Policy Center:
    Oral Statement...............................................     9
Greg Lukianoff, President and CEO, Foundation for Individual 
  Rights in Education (FIRE):
    Oral Statement...............................................    10
David Hudson, Ombudsman, First Amendment Center:
    Oral Statement...............................................    12
Ken Klukowski, Senior Counsel & Director of Strategic Affairs, 
  First Liberty Institute:
    Oral Statement...............................................    13

              ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

Letter submitted by the Alliance Defending Freedom. This material 
  is available at the Committee and can be accessed on the 
  committee repository at:
  http://docs.house.gov/meetings/JU/JU10/20170404/105828/HHRG-
    115-JU10-20170404-SD002.pdf
Letter submitted by the American Legislative Exchange Council 
  (ALEC). This material is available at the Committee and can be 
  accessed on the committee repository at:
  http://docs.house.gov/meetings/JU/JU10/20170404/105828/HHRG-
    115-JU10-20170404-SD002.pdf
Articles Submitted by The Honorable Steve King, Iowa, Chairman, 
  Subcommittee on the Constitution and Civil Justice. This 
  material is available at the Committee and can be accessed on 
  the committee repository at:
  http://docs.house.gov/meetings/JU/JU10/20170404/105828/HHRG-
    115-JU10-20170404-SD002.pdf

 FIRST AMENDMENT PROTECTIONS ON PUBLIC COLLEGE AND UNIVERSITY CAMPUSES

                              ----------                              

                         TUESDAY, APRIL 4, 2017

                  House of Representatives,
                 Subcommittee on the Constitution  
                                 and Civil Justice,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The subcommittee met, pursuant to call, at 11:30 a.m., in 
Room 2237, Rayburn House Office Building, Hon. Steve King 
[chairman of the subcommittee] presiding.
    Present: Representatives King, Goodlatte, Franks, Gohmert, 
DeSantis, Cohen, Conyers, Nadler, and Raskin.
    Staff Present: John Coleman, Counsel; Jake Glancy, Clerk; 
James Park, Minority Chief Counsel; Matthew Morgan, Minority 
Professional Staff Member; and Veronica Eligan, Minority 
Professional Staff Member.
    Mr. King. The Subcommittee on the Constitution and Civil 
Justice will come to order.
    Without objection, the chair is authorized to declare a 
recess of the committee at any time. We welcome everyone to 
today's hearing on the First Amendment Protections on Public 
College and University Campuses. And I now recognize myself for 
my opening statement.
    Fears of government overreach, in our Nation's founding 
era, necessitated the inclusion of explicit protections of 
liberty in the United States Constitution. Among them includes 
provisions to protect speech. Indeed, the First Amendment 
states that ``Congress shall make no law abridging the freedom 
of speech or of the press or of the right of the people 
peaceably to assemble.''
    The Supreme Court has long held that the First Amendment 
applies to States and government entities, including public 
colleges and universities. While the First Amendment prohibits 
public colleges and universities from restricting free speech, 
it generally does not apply to private institutions because the 
First Amendment regulates only government conduct.
    And while acceptance of Federal funding confers some 
obligations on private colleges, such as compliance with 
Federal antidiscrimination laws, compliance with the First 
Amendment is not among these obligations.
    Today, our institutions of high learning have, too often, 
turned from being a marketplace of ideas to a dictatorship of 
ideas. Students, for example, no longer feel comfortable 
expressing ideas. According to a 2015 national survey released 
by Yale University's William F. Buckley, Jr. Program, 49 
percent of students surveyed often, ``Felt intimidated to share 
their ideas, opinions, or beliefs in class because they were 
different than their professors and course instructors.''
    According to the same survey, half of the students surveyed 
often, ``Felt intimidated to share their ideas, opinions, or 
beliefs in class because they were different than their 
classmates or peers.'' This is, in part, due to the 
administrative policies maintained by the institutions. These 
administrative policies known as ``speech codes'' are defined 
by the Foundation for Institutional Rights in Education, known 
as FIRE, F-I-R-E, defined this way: ``Any campus regulation 
that punishes, forbids, heavily regulates, or restricts a 
substantial amount of protected speech.'' They come in a 
variety of forms, including restricting free speech to 
designated areas on campus called, ``free speech zones,'' or 
banning offensive communication altogether. Not at all what our 
Founding Fathers had in mind.
    Time and time again, courts have struck down these 
administrative policies; nevertheless, we continue to hear that 
students are being prevented from engaging in all manner of 
expression. For example, Alliance Defending Freedom filed a 
lawsuit earlier this year regarding the arrest by campus police 
of a student and of Young Americans for Liberty supporters who 
were passing out copies of the Constitution on the sidewalk of 
Kellogg Community College in Battle Creek, Michigan.
    Last week, FIRE warned student newspapers about printing 
satire on April Fools' Day. The warning stated in part, 
``Disturbingly, colleges have, indeed, launched full-fledged 
investigations into newspapers following satirical editions, 
threatening the publications with loss of funding and future 
oversight by content review boards. Staff members have been 
subjected to sensitivity training; editors have been fired, 
newspapers themselves confiscated.''
    A police state is what that sounds like to me, not the 
United States of America, and I happen to remember standing 
outside at Charlie Hebdo in Paris, some months ago. I went 
there to witness the location of what it would be like, when 
they come in with a speech code and slaughter, I believe, 12 
people in that place for their satire. In America, we stand up 
against that.
    These examples in the hundreds, if not thousands, of 
stories that continue to arise reflect a dangerous trend. It 
was observed in the founding era by Benjamin Franklin, who was, 
himself, a great satirist, that, without freedom of thought, 
``There can be no such thing as wisdom and no such thing as 
public liberty without freedom of speech.'' It is, therefore, 
clear that we seek to maintain our form of government. To do 
so, we must uphold its fundamental principles.
    I think of some other circumstances, and I mentioned what 
happened in Paris, but I am also thinking of sitting down with 
a young lady named Elizabeth Wolff in Vienna some couple of 
years ago, who was on her last appeal and on her way to the 
European court because she had been convicted of hate speech 
through the Austrian legal system, and all the way up, appealed 
to the European court for this, for asking the rhetorical 
question, ``If you have sexual relations with a 9-year-old, 
does that make you a pedophile?'' It was politically incorrect, 
and she faced that criticism.
    I think, very recently, of the second most popular 
politician in the Netherlands, Mr. Geert Wilders, who was 
convicted of hate speech by the courts in his own country that 
he nearly became the Prime Minister of. We do not want to see 
that in this country, but what the motive is, I think, is 
captured here.
    First, I would point out Charles Murray has been booed, and 
hissed, and some violence on campus, and driven off campus 
because they did not like the ideas that they thought he might 
speak to, or they did not like what he had written 20-some 
years ago.
    But I think it was captured to a degree by George Orwell in 
his book 1984. He wrote, ``We are not interested in the overt 
act; it is the thought that we care about.'' And the thought of 
that is, ``If you can control the words, you can control the 
thoughts; if you can control the thoughts, you can control the 
action.''
    So, this anti-hate speech thing and this suppression of our 
First Amendment liberties, and this God-given First Amendment 
liberties in this country, are being suppressed by political 
correctness; they are being suppressed on the campuses across 
this land; and it is not just suppressing our freedom of 
speech: what it is doing, it is suppressing our freedom of 
thought. And a Nation that does not have freedom of thought 
cannot cure its problems. That is why we have freedom of 
speech.
    So, I would yield back the balance of my time and recognize 
the ranking member from Tennessee for his opening statement.
    Mr. Cohen. Thank you, Mr. Chair. I cannot and will not get 
into the pros and cons on this issue. There are both pros and 
cons. We are all for free speech, and we all understand, 
though, I think, that are some limits to it: ``fire'' in a 
theatre; and speech, maybe, where you incite people to gross 
people out of a political arena; where there are limits, and 
you cause violence, or you threaten people. So, there are 
limits, but then we have respect for free speech.
    My concern is, while this is important, and no question, it 
is an important issue, that the real important issues facing 
this country at this time is the First Amendment is freedom of 
the press. And there are attacks on the press on a regular 
basis today, which I think this subcommittee needs to look 
into. It was Richard Nixon that first thought that the press 
was the enemy, the enemy of the people, in modern history.
    Before that, it was Stalin; that was modern, too, but it 
was not American. It was before the Russian-American melding 
took place. And what we have seen here is the beginnings of 
fascism, in some ways, and part of what you see with fascism, 
disdain for the press, controlling mass media; there are other 
signs that we see that are scary. That is part of it.
    The freedom of the press is so important to being a check 
and balance on government and to government that is 
uncontrolled. That is overarching the issue that we face today 
concerning the First Amendment, is the freedom of the press, 
not necessarily this particular limited freedom of speech, 
which is, oftentimes, on campuses and, oftentimes, invective 
that is hurled at sexual orientation, minorities, and/or people 
of minority religions, whether Jews, or Muslims, gays, 
transgendered, et cetera.
    And there are some reasons to limit that speech because 
sometimes it turns to violence, and that is another problem 
that we have, as one of the signs of fascism that is exhibited 
at the Holocaust Museum is identification of enemies as a 
unifying cause, and some of this is what happens there, and we 
are seeing it today.
    I also must mention, today is the anniversary of Dr. King's 
assassination in Memphis 49 years ago. It is also the 50th 
anniversary of his speech at Riverside Church, which is the 
most powerful speech, I think, that I know in my lifetime. 
Reflecting on the three -ism's, militarism, materialism, and 
racism, that still are the enemies of this Nation and mankind, 
which we have not been able to deal with in an appropriate way. 
And Dr. King was not allowed to speak in Memphis, was not 
allowed to march in Memphis, and that is part of speech, is the 
ability to protest and to march, and the city did not want him 
to protest.
    Lucius Burch had to go to court to get the Federal court to 
allow him to march. And that is why he came to Memphis, for 
people's rights and workers' rights, which were not being 
respected. Unfortunately, that is where he was assassinated.
    So, freedom of speech is important. We have come a long way 
with it. I understand, Mr. King, you are having this hearing, 
and I will submit into the record my wonderful remarks that 
were prepared on this subject that are just outstanding, but 
were not the remarks I wanted to deliver today because I 
thought, with this anniversary of this speech and the 
assignation, it was important to reflect on Dr. King, but so 
much more important to reflect on the press and the limits that 
we have got in this country right now and the ability to 
attempt to paint the press as enemies and fake news and to 
discredit the truth.
    You can have freedom of the press, but when you have got 
powerful people in your country claiming that the press is not 
to be believed and is putting out fake news, that is a problem, 
and the First Amendment did not envision it. Our Founding 
Fathers, who we talk about reverently and how brilliant they 
were, even though they did not understand slavery was wrong and 
did not understand--or if they did, they did not have the guts 
to put it in the Constitution, and they did not understand the 
fact that women should have a right to vote and to full 
participation, and people without property should have that 
right. They did not anticipate an executive who talked about 
fake news, remarks without any profession or expert 
consultation that sometimes came straight from Russian 
television.
    So, I would ask the chairman to try to look into having the 
freedom of the press, First Amendment hearing, because that is 
what faces this country right now and is most urgent.
    And with that, I yield back the balance of my time.
    Mr. King. The gentleman returns his time, and his unanimous 
request to introduce his statement into the record is, hearing 
no objection, so ordered, along with, before I recognize the 
ranking member, or the full chairman of the committee, I would 
ask also unanimous consent to introduce into the record 
statements from the American Legislative Exchange Council, the 
Alliance for Defending Freedom, and also these two newspaper 
articles that I referenced in my opening statement on Mr. 
Charles Murray.
    Hearing no objection, so ordered.
    This information is available at the Committee or on the 
Committee repository at: http://docs.house.gov/meetings/JU/
JU10/20170404/105828/HHRG-115-JU10-20170404-SD002.pdf.
    I now recognize the chairman of the full committee, Mr. 
Goodlatte, for his opening statement.
    Chairman Goodlatte. Thank you, Mr. Chairman. Mr. Chairman, 
on August 14, 2015, this committee sent a letter to 160 public 
colleges and universities that had received a red light rating 
from the Foundation for Individual Rights and Education, FIRE. 
According to FIRE, a red light institution is one that has at 
least one policy that both clearly and substantially restricts 
freedom of speech. FIRE defines a ``clear restriction'' as a 
policy that, on its face, is a threat to free speech and does 
not depend on how the policy is applied. FIRE defines a 
``substantial restriction'' as a policy that is broadly 
applicable to speech on campus.
    Given the positive responses to this letter by many 
colleges and universities and the increased attention to this 
issue, we have seen a substantial decrease in unconstitutional 
policies across the country in the last 2 years. FIRE reported 
last year that only 45.8 percent of the public schools surveyed 
received a red light rating. This year, the number has dropped 
to 33.9 percent. My hope is that the number will soon reach 
zero.
    Policies that limit free speech limit the expression of 
ideas, and no one, no one, can be confident in their own ideas, 
unless those ideas were constantly tested through exposure to 
the widest variety of opposing arguments. This is especially 
crucial in a democracy.
    Founders of our country understood this clearly; George 
Washington and Thomas Jefferson wrote of the importance of 
knowledge in a democracy. Washington wrote, ``Knowledge is, in 
every country, the surest basis of public happiness. In 
proportion, as a structure of a government gives force to 
public opinion, it is essential that public opinion should be 
enlightened.''
    And as Thomas Jefferson reminded us, ``Knowledge is power. 
If a Nation expects to be ignorant and free in a state of 
civilization, it expects what never was and never will be.''
    James Madison wrote of the inherent connection between 
learning and liberty, writing, ``What spectacle can be more 
edifying or more seasonable than that of liberty and learning, 
each leaning on the other for their mutual and sure support? A 
popular government without popular information or the means of 
acquiring it is but a prologue to a farce, or a tragedy, or 
perhaps both. The people who mean to be their own governors 
must arm themselves with the power which knowledge gives.''
    John Adams wrote specifically of the young that, ``It 
should be your care, therefore, and mine to elevate the minds 
of our children and exalt their courage. If we suffer their 
minds to grovel and creep in infancy, they will grovel all 
their lives.''
    I thank Chairman King for holding this hearing, and I thank 
our witnesses for coming today. I look forward to your 
testimony and your ideas about how we can continue to foster 
the free expression of ideas on college campuses.
    Mr. King. The gentlemen from Virginia has returned his 
time, and the chair would now recognize the ranking member of 
the full committee, Mr. Conyers, for his opening statement.
    Mr. Conyers. Thank you, Chairman King. I am happy to 
welcome the witnesses. I am going to yield to Jamie Raskin of 
Maryland as soon as I make these two sentences.
    While I do not pretend that we can fully resolve the long-
standing debate over hate speech and the First Amendment on 
public campuses during the course of this hearing, and while I 
acknowledge some tension between free speech and equality 
interest, I hope we can have a productive discussion about the 
proper balance between protecting free speech and ensuring 
equal education opportunities for all students. So, I will be 
looking forward to the discussion that will follow, and I yield 
to the distinguished gentleman from Maryland, Mr. Raskin.
    Mr. Raskin. Mr. Conyers, thank you very much for your 
courtesy and your kindness, as I have another meeting I am 
going to have to get to in a moment. Delighted to be here at 
this very interesting panel with such great witnesses.
    I suppose I should start by remarking that it is very easy 
for the left to denounce right-wing political correctness on 
campus, and it is very easy for the right to denounce left-wing 
political correctness on campus. The issue is whether all of us 
can stand up for all free speech, including the speech we 
disagree with.
    You know, I used to tell my students that free speech is 
like an apple, and everybody wants to just take one bite out of 
it. ``I am okay with free speech except for sexist speech; 
except for racist speech; except for extreme, left-winged 
speech; except for extreme, right-winged speech.'' Pretty soon, 
everybody has taken a bite, and there is nothing left to the 
apple. So, we have got to accept the whole apple if we want to 
have free speech for real in the country.
    Now, there are certain things that I imagine that would 
unify everybody on the panel and everybody on this side of the 
panel, as well, which is free speech zones are an anathema. In 
America, under the First Amendment, the whole campus is a free 
speech zone. And, to the extent that you depart from free 
speech, that should be the exception and not the rule. So, 
campuses that rope off a little area on the other side of the 
soccer fields and say, ``That is the area where you can 
exercise your free speech,'' are really in violation of the 
First Amendment, and I think we should all be able to agree to 
that.
    It gets more complicated, of course, when you get into the 
question of, what goes on in the classroom. What goes on with 
people's scholarship and so on? And I think we need a little 
bit of historical context, which I would be happy to have some 
of the witnesses elaborate on. Seems clear to me, when you look 
at it historically, that most of the speech suppression that we 
saw in the 1950s and 1960s and 1970s was of a conservative or 
right-wing nature against left-wing political speech.
    In the 1950s, of course, it was McCarthyism, and there were 
lots of professors who lost their jobs because they did not 
conform to the standard academic or electoral dogmas of the 
time. William F. Buckley's book, ``God and Man at Yale,'' was 
an important moment in the history of orthodox political 
correctness on campus. In that book, which I recommend to 
anybody who has not read it, Buckley comes out very strongly 
for indoctrination on campus in Christianity and individualism 
and attacks views that he views as dissenting from that and 
saying that they do not belong on campus.
    In the 1960s and 1970s, of course, there were tens of 
thousands of antiwar protestors, civil rights protestors, who 
were suspended or expelled or, otherwise, driven off campus for 
their views, or perhaps, their views interlace with different 
actions that they took in terms of sit-in protests or whatever 
it might be.
    Today, it is not right-wing political correctness that is 
seen as a big threat on campus; we hear a lot more about left-
wing political correctness, and of course, we have not seen 
anything like the mass expulsion suspensions, firings that took 
place in the 1950s, 1960s, and 1970s, but, undoubtedly, there 
seems to be a rise in kind of puritanical language protocols 
that are enforced in the classroom or on campus.
    People are made to feel uncomfortable if they arrive at 
campus not knowing the correct gender pronouns to use in this 
case or that. And, you know, all of that, I think, is 
problematic, but we need to put it in the overall historical 
context of what really has gone on.
    So, just a couple of points that I would welcome any 
reaction to: one is about booing and heckling, which Mr. King 
mentioned. And I think I agree with his point about this. 
Booing and heckling is a venerated American art. If you go back 
and read the transcripts to the Lincoln-Douglas debates, there 
was lots of heckling that took place, but it was a kind of 
interjection, and then there would be an answer from the 
speaker, and that was all right. But the booing and heckling 
that drowns somebody out is just stupid and is, I think, 
outside of our free speech tradition and should not be 
considered to be part of the general First Amendment norm.
    The basic rule in the academic context was set forth by the 
Supreme Court in Hazelwood v. Kuhlmeier, which said, ``Students 
have the free speech right to wear a black armband,'' as Mary 
Beth Tinker did in protest to the Vietnam War or to speak out, 
as long as they are not materially interrupting the educational 
mission and making it impossible for other people to learn. And 
I think that is the most critical point here.
    Obviously, kids have got to learn to accept other people 
having a point of view that is antithetical to their own. That 
is part of what it means to live in a liberal society. At the 
same time, we do not want face-to-face vilification and 
harassment of people, such that you really do create an 
adverse, hostile learning environment. And I think that is the 
difficult line to draw and that we would welcome the views of 
the committee about that.
    And then, finally, as to the question of academic freedom, 
it seems to me that professors and teachers should have a First 
Amendment right to take the views that they want, to have the 
positions that they want. On the other hand, the schools and 
the universities do have the power, through the tenure process, 
to decide whether someone is actually progressing and 
succeeding according to the rigorous academic standards in a 
particular field.
    So, if somebody on their own time, for example, wants to, 
you know, say, deny that the Holocaust happened, but they are a 
professor of mathematics, and it has nothing to do with their 
academic teaching, that is obviously okay. If their whole 
academic project is to show that the Holocaust did not happen, 
and it is found not to live up to the rigors and the standards 
of academic success in that field, I think it is perfectly fine 
to say, ``That person does not get tenure.''
    And so, I think that is another line that we need to draw, 
and that is the right for people to have their private 
political views, but not to say, just because I take some 
extremist stance, that somehow that qualifies me to tenure. 
Somebody can deny the existence of climate change off campus, 
again, if they are a professor of history, but if they are in a 
scientific field and they think that, just by denying the 
existence of climate change, they should get tenured, that 
strikes me as wrong, unless they are actually able to do, you 
know, the scientific evidence that would lead to that 
conclusion.
    I yield back, and thank you very much.
    Mr. Conyers. I yield back, Mr. Chairman.
    Mr. King. His time has expired 2 minutes and 54 seconds 
ago. Let the record reflect the chair resisted his temptation 
to limit the gentleman's freedom of speech.
    Mr. Raskin. Forgive me.
    Mr. King. And now I would, without objection, other 
members' opening statements will be made a part of the record.
    Mr. King. And let me now introduce our witnesses.
    Our first witness is Mr. Stanley Kurtz, a senior fellow at 
the Ethics and Public Policy Center, and our second is Mr. Greg 
Lukianoff, who is the president and CEO of the Foundation for 
Individual Rights in Education, FIRE. And our third witness is 
Mr. David Hudson; he is an ombudsman for the Newseum 
Institute's First Amendment Center, and our fourth witness is 
Ken Klukowski, a senior counsel and the director of strategic 
affairs at the First Liberty Institute.
    Excellent credentials, all, gentlemen, and I would ask each 
of the witnesses' written statements will be entered into the 
record in their entirety, and I ask you to summarize your 
statements in 5 minutes or less. And hopefully, you can stay 
within that timeframe. There is a light in front of you that I 
think you are all familiar with by now.
    And before I recognize the witnesses, we ask that you stand 
and be sworn in. Stand and raise your right hand, please.
    Gentlemen, do you swear that the testimony you are about to 
give before this committee is the truth, the whole truth, and 
nothing but the truth, so help you God?
    You may be seated.
    And thank you, and let the record reflect that all the 
witnesses responded in the affirmative.
    And so, I now recognize our first witness, Mr. Kurtz, for 
your testimony. Mr. Kurtz.
    Can you turn on your microphone, please?

 STATEMENTS OF STANLEY KURTZ, SENIOR FELLOW, ETHICS AND PUBLIC 
 POLICY CENTER; GREG LUKIANOFF, PRESIDENT AND CEO, FOUNDATION 
   FOR INDIVIDUAL RIGHTS IN EDUCATION (FIRE); DAVID HUDSON, 
 OMBUDSMAN, FIRST AMENDMENT CENTER; AND KEN KLUKOWSKI, SENIOR 
    COUNSEL & DIRECTOR OF STRATEGIC AFFAIRS, FIRST LIBERTY 
                          INSTITUTION.

                   STATEMENT OF STANLEY KURTZ

    Mr. Kurtz. Okay, how is it possible that the condition of 
free speech on our college campuses should be so precarious, 
despite broad, public support for the First Amendment? I 
believe that a critically important part of the answer to this 
question lies in the failure of administrators to discipline 
students who silence or disrupt visiting speakers or their 
fellow students.
    However problematic safe spaces and trigger warnings may 
be, however important it is to overturn campus speech codes and 
so-called free speech zones, so long as students are permitted 
to silence the speech of visiting speakers or their fellow 
students without disciplinary consequences, the growing threat 
to campus free speech will never be overcome.
    The destructive effects of speaker shout-downs, meeting 
takeovers or acts, like the destruction of a run of 
conservative student newspapers, go far beyond their 
statistical occurrence. A university may host numerous visiting 
speakers who conform to campus orthodoxies without incident. 
Yet, even a single case in which a visiting speaker who clashes 
with campus orthodoxies is shouted down sends a powerful signal 
to students and faculty, who would also challenge those 
orthodoxies, to keep silent.
    Each silencing incident, moreover, makes it far less likely 
that speakers who depart from campus orthodoxies will be 
invited in the first place or will accept an invitation when 
offered. Each act of silencing that escapes discipline also 
encourages students to believe that they can continue to attack 
and disrupt the speech of others. In short, the failure to 
discipline direct attacks on the free expression of others 
creates a kind of low-grade anarchy on campus, a world in which 
intimidation rules, and violence can never be far behind.
    All of this means that there is no substitute for well-
enforced policies of administrative discipline for incidents in 
which protestors go beyond legitimate bounds and silence the 
expression of others. Sadly, however, administrators, in our 
day, are extremely reluctant to impose discipline on students 
who interfere with the free speech rights of others, despite 
the fact that public colleges and universities are obligated to 
protect the First Amendment rights of their students.
    Administrators, all too often, fail to enforce those 
rights. This means that freedom of speech will never be secure 
at our public colleges and universities until counter-pressures 
are brought to bear upon administrators who remain reluctant to 
discipline those who violate the free speech rights of others.
    The key potential sources of such counter-pressures are 
public scrutiny, university system boards of trustees, State 
legislatures, and the Federal Congress. Along with James Manley 
and Jonathan Butcher of Arizona's Goldwater Institute, I 
recently co-authored a report that offers and explains model 
State-level legislation designed to protect First Amendment 
speech rights on America's public college and university 
campuses. That report is published by the Goldwater Institute.
    Although there are several legislative proposals in various 
States designed to restore and protect campus free speech, only 
the Goldwater Proposal systematically addresses the central 
problem of discipline for those who interfere with the 
expressive rights of others. While the Goldwater Proposal 
offers the best legislative solution at the State level, there 
is much that Congress could do to safeguard freedom of speech 
on America's campuses.
    I have outlined a possible Federal approach to campus free 
speech in some detail, in a piece entitled Federal Funding and 
Campus Free Speech: A Proposal. For example, Congress has the 
option of requiring public colleges and universities, and even 
private, secular colleges and universities, potentially, 
seeking to qualify for Federal student loans under title IV of 
the Higher Education Act, to file a pledge with the Department 
of Education to uphold student speech and association rights.
    So, for example, colleges wishing to qualify for student 
aid could be required to agree to establish, maintain, and 
utilize a system of sanctions to discipline students who 
interfere with the expressive rights of others.
    My written testimony explains both the State-level and 
Federal legislative plans in greater detail. Thank you.
    Mr. King. Thank you, Mr. Kurtz.
    Mr. Lukianoff.

                  STATEMENT OF GREG LUKIANOFF

    Mr. Lukianoff. Chairman King, Vice Chairman DeSantis, 
Ranking Member Cohen, and distinguished members of the 
subcommittee, my organization, FIRE, was founded in 1999 to 
defend free speech, academic freedom, and due process on 
America's college campuses. FIRE is a principled, non-partisan 
non-profit, and this is reflected in both our staff and the 
cases we take. For example, our litigation has recently 
defended the right of students to protest animal cruelty and 
advocate for pot legalization, Second Amendment rights, and 
more.
    Just last week, we filed a lawsuit against Pierce College 
in California, which told a student that, if he wanted to 
engage in free speech activities, he had to limit himself to a 
tiny free speech zone. The zone comprised only 0.003 percent of 
the campus. Put another way, if Pierce College were the size of 
a tennis court, free speech would be restricted to an area the 
size of a cell phone.
    Since our founding, FIRE has fought free speech zones, 
efforts by administrators to quarantine freedom of speech to 
tiny areas, and we have defeated many of them, including Texas 
Tech's infamous Free Speech Gazebo, the University of Hawaii at 
Hilo's Free Speech Swamp, and this sad, little one at Blinn 
College in Texas, which was divided into even smaller halves by 
a bulletin board.
    Many institutions even required advance permission for 
students to speak inside of the zones. For example, the 
University of Cincinnati asked for 10 working days' notice. 
Other speech codes comprise broad and vague restrictions on 
expression that practically anyone would be found guilty of 
violating. Take the University of West Alabama's prohibition on 
harsh text messages or emails, which is in force, currently, or 
both the University of Connecticut and Drexel University's now-
defunct prohibitions on ``inappropriately-directed laughter.''
    While many speech codes are absurd, fighting them, even at 
colleges bound by the First Amendment, has required more than 
60 lawsuits since 1989, and all of the 56 suits that have 
concluded have resulted in either a speech-protective court 
decision or the repeal of the speech code. The money and time 
public campuses waste defending these manifestly 
unconstitutional codes is a national scandal. Campuses should 
not be forced to respect students' First Amendment rights.
    But there is good news. Since I last spoke with the 
committee in 2015, and thanks in no small part to a letter sent 
by Chairman Goodlatte to 160 colleges and universities across 
the country, the number of speech codes on campus has decreased 
significantly.
    FIRE uses a simple red, yellow, and green traffic light 
system to rate colleges' written policies on expression. When 
we first published our findings in 2007, 75 percent of colleges 
maintained red light, or laughably unconstitutional, speech 
codes.
    In 2015, after years of fighting both inside and outside 
court, the percentage of red light codes had dropped to around 
55 percent. And since Chairman Goodlatte's letter was sent, 
that number has now dropped to below 35 percent. At the same 
time, the number of green light schools, colleges whose codes 
do not threaten protected speech, has nearly doubled.
    While there is no need to be fatalistic about speech codes, 
much work still has to be done, particularly as the Department 
of Education has championed a definition of sexual harassment 
that is so vague and broad that it seriously threatens campus 
speech. The Department of Education hailed this as a blueprint 
for all universities to follow, but it specifically eliminated 
the requirement that speech be both subjectively and 
objectively offensive, and it also reduced the definition of 
harassment to simply any unwelcome verbal conduct, also known 
as speech, of a sexual nature.
    To give you an idea of how broad such a code is, Professor 
Teresa Buchanan was fired from her job at Louisiana State 
University for violating a policy just like the blueprint, 
allegedly because she explained, in realistic detail, the way 
some parents talk to some teachers. She is currently suing 
Louisiana State University, with FIRE's help, and we believe 
that any judge looking at the Department of Education's 
blueprint definition of harassment would have to find it 
glaringly unconstitutional.
    The House Judiciary Committee has already been a great ally 
in the fight for free speech on campus. Even in these polarized 
times, we hope that free speech on campus can be an issue that 
unites all parties. In my written testimony, I recommend four 
additional approaches: warn public campuses in each State that 
speech codes are unconstitutional and can unnecessarily cost 
the State money; support the CAFE Act to put a legislative end 
to free speech zones; codify the Supreme Court's definition of 
student-on-student harassment set forth in Davis v. Monroe 
County Board of Education, which I think would address 
Congressman Conyers's concerns; and pass a Federal New Voices 
Act to protect student journalists, which should please 
Representative Cohen.
    So, thank you so much for your time.
    Mr. King. The gentleman returns his time, and we appreciate 
his testimony. The chair would now recognize Mr. Hudson for his 
testimony.
    Mr. Hudson.

                   STATEMENT OF DAVID HUDSON

    Mr. Hudson. Mr. Chairman, distinguished members of the 
subcommittee, it is a great honor to speak to you about First 
Amendment protections on public university and college 
campuses. I first want to discuss four animating principles of 
First Amendment jurisprudence that should govern any 
consideration of free speech issues. I then want to discuss the 
four issues that I have covered in my written testimony.
    The first animating principle is the marketplace of ideas. 
Back in 1919, Justice Oliver Wendell Holmes, in his great 
dissent in Abrams v. United States, wrote that, ``But when time 
has upset many fighting face, men have come to realize and 
believe in the very foundations of their own conduct that the 
ultimate good desired is better reached through free trade of 
ideas, that the best test of truth is the power of the thought 
to get itself accepted into the competition of the market.'' 
United States Supreme Court in Keyishian v. Board of Regents in 
1967 ruled that the classroom was peculiarly the quintessential 
marketplace of ideas.
    Any principles or legislation must consider the fact that 
public universities must maintain a commitment to the 
marketplace of ideas. I realize that critical race theorists 
and others question the marketplace of ideas, saying that there 
is not equal access to the market. And while this may be true 
in some circumstances, where can we have a true marketplace of 
ideas but at a public university campus? We must deal with 
competing viewpoints.
    The second animating principle is the counter-speech 
doctrine. It was authored by Justice Louis Brandeis in his 
concurring opinion in Whitney v. California in 1927. ``If there 
be time to expose, through discussion, the falsehood and 
fallacies, to avert the evil by processes of education, the 
remedy to be applied is more speech, not enforced silence.'' We 
must counter negative, harmful speech with positive speech. 
Public university officials must take an approach where they do 
not silence offensive, controversial speakers. We allow people 
to protest peacefully, but not engage in substantial 
disruption.
    The third animating principle is content discrimination and 
viewpoint discrimination. I like to tell my students, my First 
Amendment students from the National School of Law in my alma 
mater, Vanderbilt Law School, about the famous quote from 
Justice Thurgood Marshall, who wrote in 1972, ``But above all 
else, the First Amendment means that the government may not 
restrict speech because of its message, its ideas, its subject 
matter, or its content.''
    Justice Antonin Scalia wrote that, ``Content-based 
restrictions on speech are presumptively unconstitutional.'' 
And Anthony Kennedy said that viewpoint discrimination is, ``An 
egregious form of content discrimination.'' When public 
university officials allow some groups to distribute literature 
and not allow other groups, that can be content discrimination, 
and even worse, it can be viewpoint discrimination.
    The fourth animating principle is that we, in this society, 
must protect speech that we do not like. Chief Justice John G. 
Roberts, Jr. said, ``Speech is powerful. It can stir people to 
action, bring them both tears of joy and sorrow, and inflict 
great pain. But the First Amendment requires that we do not 
punish the speaker for inflicting pain. As a Nation, we have 
chosen a different course; that is, to protect even hurtful 
speech on public issues so as not to stifle public debate.''
    The four issues that I cover in my written testimony: one, 
we need to be very careful about allowing the infiltration of 
legal standards from K through 12 decisions that negatively 
impact college and university employees, professors, and 
students. The standard from Hazelwood that Senator Raskin 
mentioned, reasonably related to legitimate pedagogical 
concerns, is breathtakingly broad. We are seeing this now in 
the censorship of public officials and public school students 
who engage in online speech.
    The second principle I deal with is Garcetti v. Ceballos, 
547 U.S. 41. On page 421, the U.S. Supreme Court wrote, ``When 
public employees make statements pursuant to their official job 
duties, they have no First Amendment protection.'' Thank you 
very much.
    Mr. King. The gentleman's time has expired, and we 
appreciate his testimony. I now recognize Mr. Klukowski for 
your testimony.
    Mr. Klukowski. Thank you.

                   STATEMENT OF KEN KLUKOWSKI

    Mr. Klukowski. Thank you, Mr. Chairman and members of the 
committee. The Framers considered the Constitution's First 
Amendment necessary to enlightened self-government, the oxygen 
by which citizens can be informed to think through the issues 
of the day and hold accountable those in power. Public 
universities are State actors bound by the Free Speech Clause. 
Because free speech is a fundamental right, government 
restrictions on content are subject to strict scrutiny where 
government must show the restriction narrowly tailored to 
achieve a compelling interest. But often, we see viewpoint 
discrimination. For example, saying you cannot discuss abortion 
is content, but saying you can say pro-choice comments but not 
pro-life, that is viewpoint.
    We, at First Liberty Institute, have had to deal with this 
issue. For example, Audrey Jarvis was a 19-year-old student at 
Sonoma State University in 2013 and a devout Catholic. She was 
working for the associated student production organization at a 
student fair. During that event, her supervisor instructed her 
to remove the cross necklace that she was wearing because it 
might offend others.
    Also in 2013, Ryan Rotela's professor at a communications 
class in Florida Atlantic University instructed the students to 
write the name Jesus on a piece of paper, put it on the ground, 
and stomp on it. Ryan is a devout Christian who was not 
comfortable stepping on his savior's name. He was suspended 
from the class.
    Purdue University accepted a financial gift from a family 
who asked them to choose words for a plaque at the engineering 
school. When they chose, ``Seeking to better the world through 
understanding God's physical laws,'' Purdue called it an 
unconstitutional endorsement of religion, even though the 
Supreme Court in 2014 rejected this endorsement concept as a 
faulty misinterpretation of the Constitution's First Amendment.
    The reality is that viewpoint discrimination from private 
speakers in protected speech categorically violates the First 
Amendment. This is true in all forms of public forum, the 
doctrine governing which is discussed in my written testimony. 
More places on college campuses, most, are either traditional, 
designated, or limited public forum, where students enjoy broad 
free speech protections, and First Liberty Institute, as the 
largest law firm in the U.S. exclusively dedicated to 
protecting religious liberty for all Americans, represents all 
of these students and donors entirely free of charge. We also 
represent students in public grade schools dealing with similar 
issues. All these infringements on speech are unconstitutional. 
While First Liberty prevailed in all those cases, hostility is 
increasing against certain viewpoints and beliefs on campuses.
    A university is supposed to facilitate the free exchange of 
ideas to advance our understanding of the world. Students are 
better off when they are exposed to ideas or viewpoints they do 
not share, and learning to respect speakers with whom a student 
disagrees is vitally important to advancing a diverse and 
tolerant culture, and the First Amendment commands public 
universities to respect these principles.
    Yet now, we see a culture of free speech zones, islands 
surrounded by an ocean of university facilities and locations 
where safe spaces, micro-aggression, and trigger are code words 
justifying censorship. Multi-syllabic terms are invented to 
whitewash the suppression of speech by covering them with a 
veneer of pseudo-intellectualism. This intolerance for certain 
ideas is found across many subjects, though with one disturbing 
common denominator: political speech supporting President Trump 
is disfavored.
    Immigration speech on securing our borders is disfavored. 
Speech supporting America's greatest ally in the Middle East, 
the Nation of Israel, is disfavored, especially speech on 
Jerusalem or Israel maintaining defensible borders. There is 
even a boycott movement actively being promoted against Israel 
on Americans' campuses today in an attempt to delegitimize 
Israel.
    America's Christian community is a great friend to Israel. 
And speaking of Christians, no beliefs are under greater 
assault on secular campuses. I have referred to orthodox 
Christian beliefs in whatever tradition, carrying out the great 
commission to share the gospel of Jesus Christ, speaking 
biblical truths on the issue of the day, and believing the 
Bible to be or contain the word of God. Opposition to these 
views often forbids even mild expressions of belief. The 
Capitol's painting on the baptism of Pocahontas, the portrait 
of Jesus hanging outside the Great Hall in the Justice 
Department, these works of art would not be welcome on many 
modern campuses.
    The common denominator here is that such conservative 
speech does not comport with the prevailing ideology of some 
campuses. People of faith, whether evangelical, Catholic, 
Jewish, or other faith have a civil right under the First 
Amendment to share their faith and viewpoint on public 
campuses, and a university abridging those violates their civil 
rights and could be investigated by the Justice Department. My 
additional remarks are included, in addition to other topics, 
that this committee could explore in my written testimony. 
Thank you again.
    Mr. King. The chair thanks the witnesses for your 
testimony, and I will now recognize myself for my 5 minutes' 
questioning period.
    And I would turn first to Mr. Kurtz, whom I happen to know 
to be a historian, and I would ask you if you are aware of what 
our Founding Fathers thought about the limitations of free 
speech as they watched the Greek city-states and how they 
handled free speech there? Have you had any study on that 
topic?
    Mr. Kurtz. The Founders, I think, were concerned that the 
classical world as a whole, both the Greek city-states and the 
Romans, had a kind of democracy and yet lost it. And this 
example was always in their mind. There was a question, when 
the Founders began, as to whether a viable democracy was even 
possible. So yes, they were very concerned about whether 
freedom was sustainable, and the Constitution was a kind of 
structural attempt to solve that problem, and of course, the 
Bill of Rights as well.
    Mr. King. Thank you, Mr. Kurtz. Have you taken a look on 
balances? Are there any countries in the world that protect 
freedom of speech the way we do here in the United States?
    Mr. Kurtz. No, I really do not think there are any 
comparable examples, and the examples you gave at the beginning 
of Europe are very telling. And I would note that the attack on 
freedom of speech on campuses is often framed in terms of 
civility, but in my view, freedom of speech is the ultimate act 
of civility. It is an exercise in the teaching of civility.
    I go back to Justice Oliver Wendell Holmes, who said the 
key test of free speech is not tolerating ideas that agree with 
you, but freedom for the thought that you hate. So, think about 
that. Free speech means that we have to tolerate something that 
we hate. We have to hold ourselves back from attacking them, 
physically attacking them, or trying to snuff them out.
    Actually, we call it freedom, and it is, but freedom is 
inherently an exercise in self-restraint, and I believe that it 
is precisely because of America's unique tradition of liberty 
that we have had greater civil peace, on the whole, than 
Europe, where they do not have those protections. The Civil War 
is the exception that proves the rule. That happened because we 
violated freedom in a very important case. But on the whole, 
freedom of speech actually produces civility, and this is what 
I think people on campus need to learn.
    Mr. King. Thank you, Mr. Kurtz, and I point out from a 
historical perspective, our Founding Fathers were very well 
aware that in the Greek city-states, if a demagogue became too 
effective with his freedom of speech, he was banished from the 
city-state for 7 years.
    Presumably, he got over it, and he could come back again. 
The Founding Fathers did not opt into anything of that nature. 
They decided, instead, let's have this competition of freedom 
of speech. Let the ideas compete. Let the good ideas surface, 
and the bad ideas would be treated with the level of disrespect 
that they deserved. I would turn to Mr. Klukowski and ask, on 
college campuses, what is your recommendation? The private 
schools, should they be allowed to focus, as much as they 
choose, on their particular religions, whether it is 
Christianity or Judaism, or any other religious group?
    Mr. Klukowski. Two recommendations, Mr. Chairman. First of 
all, regarding private institutions, Congress does have 
authority under the Spending Clause to condition eligibility 
for Federal funding on private universities respecting speech 
in such a manner that, if they were to suppress speech in a 
way, that would be a civil rights violation, actionable by the 
Justice Department.
    If done by a public university, that could be a trigger, to 
use the word appropriately, for reducing or eliminating certain 
types of Federal funding. The amount of Federal funds that Ivy 
League universities are now receiving is so astounding that, in 
just a few years, they would be in a financial position where 
all of their students could attend for free if they would allow 
that to go. So, I believe that's something that would really 
get their attention.
    The second is, and this is very disturbing, the increasing 
difficulty that individuals and groups have at getting quality 
legal representation. There are major corporations who are 
severing their ties with law firms that are taking on religious 
liberty and conservative speech issues, whether paid or pro 
bono, and I believe the committee could also look at how to 
ensure that access to the courthouse remains open for these 
groups.
    Mr. King. Thank you, Mr. Klukowski, but you would not 
assert, then, that if you had a robust freedom of speech, even 
in promoting a particular religion on a private campus, as any 
kind of constitutional violation, it just might be to the 
discretion of Congress to limit their funding?
    Mr. Klukowski. Well, and in fact, for faith-based 
organizations, such as Liberty University, where I once taught 
on faculty, or Notre Dame, where I received my undergraduate 
degree, or Brigham Young, where I have been a guest lecturer, 
at any religious-mission, private university, they enjoy 
additional protections, not just free speech, but also free 
exercise and even establishment. And so, I believe those faith-
based institutions could enjoy protections.
    Mr. King. Thank you, Mr. Klukowski. And I want to quickly 
ask Mr. Hudson, with regard to this topic we have in front of 
us, is the truth a factor at all, or are we free to speak 
freely, true or not, and is that even a judgment that should 
enter into this discussion, Mr. Hudson?
    Mr. Hudson. Well, I think I would go back to John Milton in 
Areopagitica. ``Let truth and falsehood grapple; who ever knew 
truth put to the worst in a free and open encounter?'' We hope 
that true ideas will trump negative ideas, and certainly truth 
is important if there is an allegation of defamation, because 
truth and the substantial truth defense is important if 
somebody is accused of defamation. But we want to have 
competing ideas, because it is through competing ideas that we, 
as a society, come to recognize what we consider to be the 
greater truth at that time.
    Mr. King. Agreed, Mr. Hudson. Thanks for your responses, 
and the chair now recognizes the gentleman from Tennessee, the 
ranking member, Mr. Cohen.
    Mr. Cohen. Thank you. Are we on here? I guess we are. Thank 
the panelists. Very distinguished group of panelists, and 
wonderful testimony. Mr. Hudson, I could not even see your 
teleprompter. You did such a good job.
    I am just amazed at your memory of the aces, the verbiage, 
and the citations. Credit to Vanderbilt.
    Dynamite, dynamite, when Vandy starts to fight.
    Mr. Hudson. I agree.
    Mr. Cohen. Congress has a program where they encourage 
students to submit artwork to be chosen from each congressional 
district to be displayed in a hallway between Capitol and House 
office buildings. One of those paintings, submitted by Lacy 
Clay of Missouri, was by a student in his district that showed 
police and citizens in Ferguson, Missouri, and was a painting 
that did not show, necessarily, policemen in the best light. 
Quite a few people objected to it, and it was taken off the 
halls, even though chosen by Representative Clay, and is not 
hanging any longer.
    I would like to know what each of you think about that 
practice of the Congress taking down a painting chosen by a 
member without any previous policy concerning content and 
censoring the publication. Mr. Kurtz, would you go first?
    Mr. Kurtz. As you describe it, Congressman Cohen, I would 
not have wanted to take down the painting. But while I do not 
recall the details, as I understand it, part of that dispute 
had something to do with rules. Apparently, there were some 
sort of rules about what sort of painting could be up there to 
begin with, and there was an allegation that the painting 
violated the fundamental rules of the contest.
    I really cannot comment, finally, on the controversy, 
because I would have to study that aspect. As you present it, 
it sounds like the painting should have been left up, but I 
have the proviso that there are further elements of the 
controversy that need to be studied regarding those rules, and 
perhaps other things, as well, before I can give a final 
opinion.
    Mr. Cohen. The rules had never been enforced before, and 
the rules were fairly vague about political controversies. And 
that is all in the mind of the beholder, I guess. Mr., is it, 
Lukianoff?
    Mr. Lukianoff. Lukianoff.
    Mr. Cohen. I am sorry.
    Mr. Lukianoff. FIRE restricts its work to issues 
surrounding higher education, and it is actually a very deep 
field. So we do not have a particular opinion on that. However, 
we do work routinely with the great National Coalition Against 
Censorship, and I know that they wrote a letter objecting to 
this as a form of viewpoint discrimination that was, if not 
unconstitutional, inappropriate, and we definitely defer to the 
NCAC on that.
    Mr. Cohen. Thank you. Mr. Hudson.
    Mr. Hudson. It sounds like content discrimination, perhaps 
even viewpoint discrimination. If I was representing the 
student, I would try to analogize to the Barbara Papish case, 
which I believe was slide one of Mr. Lukianoff's presentation, 
in August of 2015, where a graduate student wrote an article 
that depicted the police very negatively, with a negative 
action toward the Statue of Liberty. I understand there may be 
different rules, as Mr. Kurtz has said, and so I would have to 
study that further, but on first glance, it does sound like 
content discrimination.
    Mr. Cohen. What would the rules have to be to be 
constitutionally valid? I mean, you just cannot have a rule, 
``There shall be no painting that pictures the police in a bad 
perspective.'' How would you have a rule that could limit 
content and be specific enough to give notice to the artist?
    Mr. Hudson. That is a very good question. I think it would 
have to be extremely narrowly-drafted. I think you would have 
to have notice, and I think you would have to have no problem 
of selective enforcement. You may be able to argue the 
government speech doctrine, if you are on the government side, 
and argue that it has not been opened up as a true public forum 
or limited public forum. But again, I tend to take the First 
Amendment side of it. I think it sounds like content 
discrimination to me.
    Mr. Cohen. Thank you, sir. Mr. Klukowski.
    Mr. Klukowski. Congressman, I think there is a two-part way 
to answer that, and I, too, would have to study it further. 
First, as my colleague just said, the first question is whether 
this is, in fact, private speech, and whether this is any type 
of public forum. If it is a limited public forum, content-based 
restrictions are permissible to keep the forum consistent with 
the purposes for which the public has access to it. If it is a 
non-public forum, any reasonable restrictions would be 
permitted. Now, if it is viewpoint-based instead of content-
based, then it would be unconstitutional under either of those.
    However, there is an entire line of Supreme Court free 
speech jurisprudence regarding government speech versus private 
speech. The protections we are referring to are for private 
speakers engaging in protected speech. If this is, in fact, the 
government subsidizing or providing a platform to associate 
itself with speech, the government does not need to associate 
itself with speech with which it disagrees. And I think the 
question there would be whether or not that depiction would 
then be associated as the expression of Congress.
    Mr. Cohen. Thank you. I appreciate each of you, and I think 
you have shown well that this issue and the issue of the First 
Amendment and art and censorship is much like health care. It 
is complicated.
    Mr. King. The gentleman's time has expired, and the chair 
would now recognize the vice chairman of this subcommittee, Mr. 
DeSantis of Florida. Mr. DeSantis.
    Mr. DeSantis. Thank you, Mr. Chairman. Mr. Lukianoff, part 
of the things that I have noticed about this debate is that 
there seems to be a declining support for First Amendment 
values amongst younger people. And so, we deal with the issues 
that you guys ably deal with because we want free expression on 
the campus; that is just a good thing, but it seems to me the 
result of some of these codes and restrictions has been, that 
is, kind of what people are now socialized to, or maybe they 
are even advocating it. So, can you speak to the issue of the 
extent to which younger people have really walked away from 
core First Amendment values and are actually supportive of 
having a lot of these restrictions?
    Mr. Lukianoff. Absolutely. And that is the thing that keeps 
me up at night right now. So, I have been doing this since 
2001, and for the overwhelming majority of my career, the 
people that were on the, in my opinion, wrong side of freedom 
of speech were campus administrators. Sometimes faculty were 
pro-speech code. The single best constituency on campuses were 
always the students themselves. Often poor and minority 
students, often non-traditional age students have been some of 
our best allies.
    I do not know precisely what happened, but somewhere around 
2013, 2014, we started seeing a shift to students demanding 
freedom of speech for themselves, understanding that it was 
really important for them to have that, to what I dub freedom 
from speech that they dislike. And this is the most distressing 
cultural change I have seen in my career, but that means what 
we have to do is think about ways of getting not just the law, 
not just the First Amendment in front of them, but we have to 
get the philosophy of freedom of speech in front of more 
students.
    I think it is crucial for students to know, for example, 
the incredibly important role that freedom of speech played in 
the Gay Rights Movement, in the Civil Rights Movement. In all 
American history, when it was recognized it has been a force 
for innovation and progress, but I think students are primarily 
taught that freedom of speech is the argument of the bully, the 
bigot, and the robber baron, and that is completely 
inappropriate.
    So, I am constantly thinking of ways to get in front of 
people at a younger age. I was even toying with the idea of 
writing a children's book about freedom of speech, but we have 
to be creative in teaching this as a profound philosophy that 
helps protect deep pluralism in our society.
    Mr. DeSantis. Mr. Kurtz, I think you get at this, a little 
bit, but, I mean, if you look at the Yale situation that 
happened. I mean, you have the Woodward Report of Standards, 
clearly, they had walked very far away from that.
    But, as you watch those videos, it seemed to me that was 
really lead by the students, one of these really radical 
students, and that the administration caved rather than standup 
for the values of the Woodward Report. I think that may track 
with your view about, you know, they are not really holding 
some of these people accountable. So, can you address that?
    Mr. Kurtz. Yes, Congressman DeSantis, as I emphasized in my 
remarks, I think the administrators caving is very much at the 
heart of the problem, although it is absolutely true that we 
have a generational difficulty now, and Greg Lukianoff has 
discussed that, both in his writings and today, very well.
    And so, I think we have to intervene in this sector now, 
and you mention the Woodward Report. Woodward Report was 
published in 1974, and it gave a history of a series of attacks 
on free speech that had occurred at Yale going back to 1963. 
These were, pretty much, attacks from the left against the 
right. The problematic pattern, the McCarthyism of the 1950s, 
was a very big problem, but beginning in the early 1960s, the 
problem went the other way.
    So, we have to realize this problem on campus has been 
going on for more than five decades, and it is getting worse 
now, and administrators are still caving. That is why I have 
suggested legislative intervention at both the State and the 
Federal level. Ordinarily, you try to take a hands-off posture 
and see if a sector could right itself. But, what has happened 
now is that for, literally, five and one-half decades, the 
problem has been getting worse. I think legislators, 
ultimately, their first responsibility is to protect the rights 
of their constituent. So, I think it is time to intervene.
    Mr. DeSantis. Well, I mean, we are sending a lot of money. 
So, that is really why we have a role. If we were not funding 
anything, then I would just say we just stay out of it, but if 
we are going to be subsidizing these types of forums that are 
not infused with free speech values, then it becomes an issue.
    Mr. Klukowski, you mentioned, you know, some of the 
drowning out of pro-Israel voices in college campuses. This is 
very concerning to me. Is that something that is relatively 
recent, or is this been a long-running problem.
    Mr. Klukowski. The BDS movement is a more recent 
phenomenon. I mean, there has been different types of 
disfavored views on campuses, of course, going back countless 
decades. But, what you see here is the Israel and America's 
conservative, Christian community married as close cousins, in 
terms of the sort of disfavor that they see for their 
viewpoints and their values.
    I do not know if one is a proxy for the other, or what, 
precisely, the connection there is, but it tends to be the same 
students who both try to express biblical beliefs or other 
observant, conservative Christian beliefs, who are also 
outspoken supporters of the Nation of Israel, and we see, 
between the two of those, we see a multi-pronged opposition 
taking all of these various points.
    Mr. DeSantis. Great, it was a good panel. You guys did a 
good job, and I would just say that I would echo my colleague 
on the other side about, you know, trying to drown out speech 
by just yelling people down. I mean, be passionate and make 
your voice heard, but these speakers that come to campus should 
be heard. Defeat them with the ideas, if you do not like them; 
make good counterarguments, but do not just scream, so they 
cannot get their point across, and I yield back.
    Mr. King. The gentleman returns his time, and the chair 
will now recognize the ranking member of the full Committee, 
the venerable gentleman from Michigan, Mr. Conyers.
    Mr. Conyers. Venerable is, well, I do not know if it is 
appropriate. Let me say, Chairman King, that you have 
demonstrated a very open and very fair examination of this 
whole question of First Amendment protections yourself, and I 
wanted to compliment you on it. I think this discussion with 
these distinguished witnesses would pass muster at an American 
Civil Liberties Union in itself.
    And I sincerely congratulate you on it, and the witnesses 
have been very provocative. To David Hudson, I would like to 
ask, would not requiring colleges to punish students, possibly 
with expulsion, or shouting down of offensive speakers itself, 
violate student free speech rights? What do you think of that, 
sir?
    Mr. Hudson. It could be. It would have to be analyzed on a 
case-by-case basis. I do think that you would have to have a 
clear standard, something that cancels the substantial 
disruption. If a student does, intentionally and substantially, 
disrupt a school function, then that is rewarding freedom of 
speech, and that is disallowing invited speakers. As far as 
expulsion, that seems like a drastic remedy to me. I think that 
there certainly could be punishments far less severe, and I 
hope it would be an opportunity for the university to have a 
teaching moment.
    You know, I believe fully in the counter-speech doctrine, 
and I mentioned Justice Brandeis, ``More speech, not enforced 
silence.'' The very next sentence, I believe, in his opinion 
is, ``Only an emergency can justify repression.'' So, in 
emergency circumstances, I certainly believe that the 
university can take the steps that it needs to ensure that 
there is order and that the invited speaker can speak.
    Anytime you have punishment for a student for speaking out, 
I think there has to be clearly delineated standards, or we run 
afoul of due process concerns, and the last thing we would want 
to do is to have a zero-tolerance mentality that is infecting 
many K through 12 school districts and superimpose that on the 
college and university level.
    Mr. Conyers. Thank you so much. Continuing our discussion, 
some of you argued that hate speech is not merely a symptom of 
merely underlying bigotry, but also a cause of such bigotry, 
and that hateful speech and images can create social realities 
that put minorities and women at risk, thus justifying limits 
on such speech. How do you figure that kind of situation into 
our examination of this important subject?
    Mr. Hudson. Well, I generally think that speech should be 
protected. In our free society, hate speech is protected unless 
it incites imminent lawless action, unless it crosses the line 
into a true threat, or it constitutes fighting words.
    Now, on a college and university campus, I would support a 
well-drafted, narrowly-tailored, anti-harassment code that 
deals with direct, face-to-face harassment and vilification. 
That has to be addressed; we cannot ignore racism in this 
country, and we cannot ignore racism on public college and 
university campuses because that could deny somebody the 
opportunity to attend and have a free educational environment. 
But, that does need to be severe and pervasive harassment, as 
Mr. Lukianoff has said and written in his stated and written 
testimony. Severe and pervasive harassment is a recognized 
standard in employment discrimination law, and I certainly 
think the U.S. Supreme Court used it in Davis v. Monroe.
    So, I think, when we have an anti-harassment code, it has 
to be narrowly tailored, and it has to deal with direct, face-
to-face vilification.
    Mr. Conyers. Thank you, sir. Now, my last question is to 
Greg Lukianoff. If a harassment policy modeled on the title IX 
standard would pass constitutional muster, why have not more 
colleges and universities, particularly public ones, adopted 
its severe, pervasive, and objectively offensive requirements?
    Mr. Lukianoff. That is a terrific question, and the answer 
is that, the first thing that they believe, falsely, that by 
having a more expansive definition of harassment or, for that 
matter, having speech zones, for example, that they are 
protecting themselves from legal liability, and this is a fear 
that is fed into by what is known as the risk management 
industry, which have consultants that, more or less, say, ``You 
know, definitely cover yourselves.'' And this is made worse by 
the growth and bureaucracy on campus.
    So, you have full-time employees who are trying to figure 
out ways to regulate every aspect of student life, and they 
overregulate. Political correctness, of course, is real. So, 
there are people who actually do want to protect people's 
feelings, but there is also ignorance of the law, is a problem.
    So, FIRE works closely with administrators all the time, 
trying to make sure they understand, again, both the law and 
philosophy behind it, and, unfortunately, the fifth factor that 
is new is that students, some relatively small number of 
students nonetheless, that seem to be demanding these new 
codes. So, when we talk about changing university codes to 
reflect the actual, Federal Davis standard that we recommend, 
we are saying, ``First of all, the code you have is going to 
get you sued eventually, and you are going to lose in court.'' 
The definition that we propose comes directly from the Supreme 
Court; it is never going to be overturned, and it does actually 
deal with cases of serious harassment.
    Now the, one last thing, trick though is to tell 
universities that it should be no less or no more than Davis 
because the heartbreaking thing, looking at these policies 
sometimes, is you will see a perfectly constitutional 
harassment policy in one section and then the other section 
they say things like, ``Inappropriately directed laughter.''
    Mr. Conyers. Thank you, sir, and I thank all the witnesses, 
and I yield back, Mr. Chairman.
    Mr. King. The humble gentleman and venerable gentleman from 
Michigan has returned his time, and now the chair would 
recognize----
    Mr. Conyers. You used that word again.
    Mr. King. And the chair would now recognize the gentleman 
from Arizona, Mr. Franks, for 5 minutes.
    Mr. Franks.
    Mr. Franks. Well, thank you, Mr. Chairman. First, Mr. 
Chairman, I would just like to congratulate you on having this 
hearing on such a profoundly significant and important issue. I 
consider freedom of religion and freedom of expression to be 
the cornerstone of all other freedoms, and I have heard the 
tremendous comments here today. It gives me hope.
    Mr. Hudson, I think you are the minority witness here, and 
yet, I have heard a lot of things that comport with what I hear 
from the rest of the witnesses here and, sir, I do not think 
you are ever going to need a microphone in your class.
    But I was really astonished at your ability to call these 
things from memory, and I assume that is probably partly 
because you teach this in class on a number of occasions.
    It gives me hope to see that, among thinking and studious 
individuals, that there is a large commonality here in free 
speech in general, because I am convinced that truth and time 
do, indeed, travel on the same road, and if truth is given a 
chance, it will prevail over fallacy. So, again, I just 
congratulate everyone.
    Mr. Kurtz, your quiet scholarship is stunning, and Mr. 
Lukianoff, I think you are going to be at the forefront of a 
lot of good things that are going to happen, and I have already 
addressed Mr. Hudson, and Mr. Klukowski has been a friend of 
mine for 25 years or more, and I should not say that publicly 
because it will completely undermine his testimony.
    But, I think he has presented himself tremendously well 
today. So, I am going to, you know, remind us all what Abraham 
Lincoln said: ``Those that deny freedom to others deserve it 
not for themselves, nor under a just God can they long retain 
it,'' and one of the great concerns I have are these campus 
shout-downs, and I see that in the political arena a great deal 
now, where there is not a discussion, where there is just, 
simply, a bullhorn that just drowns everyone out and, to me, 
that is the antithesis of free speech, and I appreciate how it 
has been very forthrightly addressed by all of you.
    So, Mr. Lukianoff, I was just going to give you another 
chance to, kind of, give us an update on how prevalent speech 
zone policies in the Nation's public colleges and universities 
are, and what do you think? Is there rationale to quarantine 
free speech to one specific area?
    Mr. Lukianoff. Oh my, well, they have been decreasing. I 
said there has been about 60 lawsuits against speech codes, and 
an awful lot of those have been against speech zones. So, they 
are about one-fifth of the colleges we survey now maintain 
speech zones. But, if it is okay to talk about the shout-downs 
for a second, I am working on a book right now, and I have to 
spend a lot of time watching some of the recent situations. For 
example, at U.C. Berkeley when the riots broke out, and the 
thing that scared me the most about that was that it was not 
just merely shouting someone down; it was actually responding 
with violence.
    People were hit in the face with flagpoles; people were 
Maced; people were struck; there was pools of blood that 
protestors were trying to clean up, and I felt genuinely scared 
watching that because they were very lucky that nobody got 
killed. And when we start actually making the transition from 
merely shouting down, surely bad enough, but when it becomes we 
have to do more; we have to physically attack these people; we 
have entered a situation that makes me genuinely quite scared.
    Mr. Franks. Well, I could not agree with you more, and I 
think it kind of falls on us. When we allow people to be 
shouted down, if we do not draw the line there, then we invite 
what follows it.
    Mr. Lukianoff. As for an example where people absolutely 
should have been arrested, what happened at Berkeley, you know, 
by not doing that, they encourage bad behavior in the future.
    Mr. Franks. I agree. Mr. Klukowski, I am troubled by the 
double standard that colleges seem to be applying when they let 
fraternities choose their leaders and members based on sex, but 
refuse to let the religious groups choose their leaders based 
on religious beliefs, and I think it is great for colleges to 
allow fraternities to choose their leaders and members as they 
always have done, but why not allow the religious groups to do 
the same? Why the double standard?
    Mr. Klukowski. Well, it is disturbing, and there is a 
recent Supreme Court case, Christian Legal Society v. Martinez, 
it was a 5-4 decision; I respectfully believe that the court 
decided that wrongly, where you had the Christian Legal Society 
just said, ``If you wanted to be an officer of the club, then 
you needed to adhere to certain religious views and conduct 
consistent with those religious views,'' and in that case, it 
was on the matter of sexuality.
    And it is no surprise to anyone on this committee that 
there is a robust debate in the country on matters of marriage, 
and sexuality, and gender, and in a regard, it is just an 
evolution of debate that has been going on for decades on 
abortion, and that becomes, for individuals who have certain 
views that are derived from millennia-old religious beliefs, 
are they allowed to express those, both in terms of their 
written and spoken words, and are they also allowed to organize 
themselves according to those principles? And I think there has 
been a very disturbing trend in the law in that regard, and I 
hope the Supreme Court now moves more in the direction of the 
original meaning of the relevant provisions of the First 
Amendment and restore these safeguards for people of faith.
    Mr. Franks. Well, Mr. Chairman, that is certainly the 
Supreme Court's job, to consider the original intent. I thank 
you for this, and I guess I am just reminded, from all of us, 
that true tolerance is not pretending you have no differences. 
It is being kind and decent to each other in spite of those 
differences. Thank you, sir.
    Mr. King. The gentleman returns his time, and the chair 
would now recognize the gentleman from New York, Mr. Nadler.
    Mr. Nadler. Thank you. I am glad Mr. Franks just went 
before me because he raised a subject that I want to pursue for 
a moment with Mr. Klukowski. I would think that a college 
religious society, the Christian Society of whatever college, 
should be allowed to limit its officers to believing 
Christians.
    What I want to ask is, you made a statement about 
controversies. Now, I can understand if the Catholic Society of 
so-and-so college wanted to limit its officers, or its 
membership, for that matter, only to people who believe 
abortion was immoral; they should be able to do that.
    On the other hand, if they wanted to bar people who said, 
``Well, I believe, as a practicing Catholic, that abortion is 
immoral, but I also believe that I should not impose my views 
through government, then I disagree politically with 
governments opposing abortion.'' Should that be allowed, too, 
or is that going beyond the religious requirement?
    Mr. Klukowski. Well, and I think that is not necessarily 
exclusive to religion. For example, if you had an NRA club on 
campus, and you had a gun control advocate who wanted to be an 
officer and then to try to start creating policy for the 
organization who says, ``I support the Second Amendment, but I 
believe what I consider reasonable restrictions, such as saying 
no one can have a handgun in their home.''
    Mr. Nadler. No, no, that is a wrong analogy. Someone who 
agrees with the Catholic Church's position on abortion 100 
percent; it is immoral; it is horrible, et cetera, but 
disagrees about government policy.
    Mr. Klukowski. I believe it is the same, Congressman, 
because this is someone who can say, ``I personally think 
everyone should own these things, but I do not believe I should 
impose those rules on government that they have to have laws 
that respect those things.'' I think the two are inseparable. A 
person's faith and their religious beliefs----
    Mr. Nadler. So, you think that the society should be able 
to bar, as officers or members, both groups of people?
    Mr. Klukowski. I believe it is the role of the faith-based 
organization and not the government, which the university 
administration is the government, to impose that requirement on 
them.
    Mr. Nadler. I just wanted to clarify. Now, let us get back 
to the subject of the hearing. Let me say, I feel very strongly 
about these issues and, personally, that these issues are being 
shouted down. When I was an undergraduate at Columbia, I was 
very deliberately shouted down at a political meeting and 
prevented from expressing my view as soon as a certain faction 
got a whiff of what they thought my view might be, and I was 
not the only person at that meeting. And I remember what it 
felt like, and I am very much opposed to that.
    First, Mr. Hudson, and please answer briefly because I have 
a number of questions, do you believe the Garcetti decision has 
created confusion in the lower courts over whether there is an 
academic exception from the general rule that a public 
employee's speech made pursuant to official duties is not 
protected under the First Amendment, and have we seen public 
university professors punished under Garcetti and, 
specifically, under the K to 12 rules of Garcetti?
    Mr. Hudson. Yes, there is a split in the circuits. The 
Fourth Circuit in the Adams decision and the Ninth Circuit in 
the Demers decision that said Garcetti does not apply in the 
academic context when we are talking about scholarship.
    Mr. Nadler. Okay, and Mr. Hudson, and Mr. Lukianoff, the 
campus anti-harassment act proposed by FIRE defines actionable 
harassment, in part, as part of a pattern of targeted 
unwelcomed conduct. Could a single incident, if it is 
sufficiently severe and objectively offensive, also constitute 
harassment, as would be the case under employment 
discrimination law?
    Mr. Lukianoff. Generally, it would be a pattern of 
behavior. It would have to be something that actually becomes 
more behavioral----
    Mr. Nadler. Mr. Hudson.
    Mr. Lukianoff. Sorry.
    Mr. Hudson. It depends on how egregious the act is. 
Generally, it needs to be repetitious. If the act is egregious 
enough, at least in employment discrimination law, it could 
rise to the level of severe and pervasive.
    Mr. Lukianoff. And by the way, generally, things that are 
egregious enough are unprotected speech for other reasons. 
Threats would not be protected, for example, because it is 
already unprotected speech.
    Mr. Nadler. Now, Mr. Kurtz and Mr. Klukowski, are you 
concerned that any Federal legislation that would penalize a 
State college or university by withholding Federal student aid 
or other educational funds for refusing to implement the 
federally-mandated speech disciplinary system or for failing to 
abide by a pledge to uphold religious liberty, as defined by 
congressional statute, might run afoul of constitutional 
limitations placed on the spending clause? In other words, that 
it is beyond our ability to do that under our spending clause 
power?
    Mr. Klukowski. You are referring, Congressman, to the 
coercion doctrine under the Tenth Amendment. To date, there has 
only been one case where it has been held that the dollar 
amount that was on the table actually coerced the States to 
such a degree that they did not have a meaningful choice.
    Mr. Nadler. It is not just the coercion. We have to have a 
constitutional basis for anything we do.
    Mr. Klukowski. Yes.
    Mr. Nadler. If we were to pass such legislation penalizing 
a State college/university for the reasons stated, would that 
be within our power to do such a thing because we give them 
money under the spending clause?
    Mr. Klukowski. Under United States v. Butler, 1936, it 
would be. The Supreme Court was divided on that issue: 
Madison's view would be that would have been unconstitutional, 
but Hamilton's view defeated Madison's there, and the court 
interpreted a very broad mandate for spending power that would 
authorize that sort of restriction.
    Mr. Nadler. Mr. Kurtz.
    Mr. Kurtz. Well, there are already something called program 
participation agreements that colleges and universities sign 
that have quite a number of requirements when they receive 
Federal money.
    And, of course, under title IX of the Higher Education 
amendments, I actually think that enforcement through guidance 
from the secretary has gone too far, but we have got a 
precedent of a tremendous amount of Federal involvement in 
fine-toothed issues in universities. So, I would be surprised 
if fundamental protection for freedom of speech would run afoul 
of that provision.
    Mr. Nadler. Thank you, and let me thank the chairman for 
letting me go over time.
    Mr. King. The gentleman returns his time, and the chair 
would now recognize the gentleman from the first district of 
Texas, Mr. Gohmert.
    Mr. Gohmert. Thank you, Mr. Chairman. Thanks for having 
this hearing because it really is critical. You are all asked 
to speculate, without the rules being before you, about the 
Congressional Art Contest. So, let me read you the rule that 
every contestant had to read and sign, saying they understood 
the rules.
    In part, it says, ``Exhibits depicting subjects of 
contemporary political controversy or of a sensationalistic or 
gruesome nature are not allowed. Any portion not in conscience 
with the Commission's policy will be omitted from the exhibit. 
If an entrant is unsure about whether a piece of art is 
acceptable, he or she should contact the staff, or his or her 
member of Congress, and then the congressional staff can speak 
with personnel who can determine whether the artwork would be 
acceptable.''
    So, only if you believe contemporary political controversy 
is vague and unreasonable, or arbitrary and capricious, would 
one say depicting our Nation's law enforcement officers, who 
risk their lives to save ours every day, depicting them as 
dogs, that that would not be political controversy? So, I never 
removed the painting; I felt like that should be left for those 
in authority, who would make the decision.
    It was not my decision, but I guess this points to the 
problem we have in Washington, where members of Congress cannot 
discern whether or not depicting our law enforcement, who are 
heroes somewhere in America every day, depicting them as dogs, 
pigs, whatever, that that is not controversial, that is a good 
thing. It is amazing.
    Yet, at the same time, toward the end of last year, we had 
an Israeli writer, fantastic writer, Caroline Glick, writes for 
the Jerusalem Post. She has written a book regarding a one-
state solution, and she was invited to speak at the University 
of Texas in Austin. Apparently, from what I have been provided, 
the J-Street group that is considered the more moderate, or 
liberal, some would say self-loathing, of Jewish patriots 
patriotic to Israel, but apparently, they also are involved in 
APAX.
    So, it was allegedly pro-Israeli group that put pressure to 
have her disinvited. Another group stepped in and pressure was 
brought to bear against them not to have such a controversial 
author and writer, and ultimately, she was disinvited, although 
a rabbi offered to let her speak in his home when pressure was 
brought to bear about him trying to have her come to a public 
institution.
    As I attended Texas A&M, it was one of the most 
conservative, public institutions when I attended. We were 
proud to have very liberal people there. I was helping host 
Ralph Nader, and I loved the exchange, but what deeply bothers 
me about Texas A&M and most all colleges, with just a very few 
exceptions, it is as if they are afraid to debate a 
conservative position.
    So, let me ask what you see as the biggest danger in our 
college campuses and how would you recommend we, specifically, 
take steps to stop it or prevent it? Just, very quickly. I know 
you gave statements in your dealing with this issue, but I 
would like to get down to a nutshell real quickly.
    Mr. Kurtz. Sure, Congressman Gohmert, as I said in my 
testimony, I think the shout-downs are really fundamental at 
this point. They are spectacular; the news travels across the 
country through media of all kinds, and so they have a kind of 
contagious effect, and that is why I think the State and 
Federal legislative proposals I mentioned are necessary, at 
least in some form, and that they have got to include something 
about the shout-downs.
    Mr. Gohmert. But if it is just the shout-downs, could not 
that be the local authorities just make sure there is no shout-
downs or usher them out?
    Mr. Kurtz. Unfortunately, the local authorities, who are 
the university administrators or the police that they choose to 
call or not to call in, aren't doing anything. That is the real 
problem, is that the administrators that ought to be enforcing 
the First Amendment on their public college and university 
campuses really are not doing that.
    Mr. Gohmert. So, it is like George Wallace refusing to 
follow the Constitution requiring Federal action until people 
started following, correct? Mr. Lukianoff, do you agree?
    Mr. Lukianoff. Well it is a big, grand question. I want to 
give, sort of, bigger answers to it on what can be done. Now, 
the biggest thing Congress can do is help fix the legal 
incentives that actually make it easier for university general 
counsels to justify speech codes, to justify erring on the side 
of censorship rather than free speech. There is a lot, I think, 
Congress can do about that. But there are deeper things that we 
need to do, which I had mentioned before, which is teach 
philosophy, freedom of speech, earlier, create the right 
expectations of students when they come into school.
    Students should be taught when they come into--and the 
University of Chicago, for example, does a very good job of 
this, saying we believe in freedom of speech. That is an 
incredible vision, but that also includes that you do not have 
the right to shout down a speaker. And you certainly do not 
have the right to respond violently.
    Probably the subtlest thing, but that we desperately need 
to do as a society, is we have to habituate people to listening 
to each other across lines of differences. That is something 
that institutions like higher education could actually be 
helping with, but I think what we are actually doing is we are 
encouraging people to talk inside their echo chambers instead 
of talk across lines of difference.
    Mr. Gohmert. Mr. Hudson.
    Mr. Hudson. Limit Garcetti legislatively as applied in the 
academic and university context; provide enhanced protections 
for student journalists and not allow the importation of 
standards for K-12; educate young people with civic education 
and give them an opportunity to live in an environment where 
they appreciate a constitutional democracy; and continue the 
work of groups like FIRE that limit over-broad free speech 
zones and over-broad and vague anti-harassment policies.
    Mr. Gohmert. Mr. Klukowski.
    Mr. Klukowski. Well, first, thank you for sharing the rules 
regarding the pictures.
    Mr. Klukowski. And on that basis, I would say it is a 
viewpoint-neutral, content-based restriction, which would 
survive, either under a limited public-forum analysis, or that 
it could be associated as governmental speech.
    Regarding university campuses, once again, you are 
touching, in your example, on a subject matter, which I have 
noted as singularly disfavored. And in that regard, again, I do 
believe there is spending clause legislation that can be used 
to encourage private universities to act like public 
universities. I believe that the Justice Department Civil 
Rights Division could start investigating public universities 
where they are engaging in censorship of speech.
    And finally, the Congress needs to consider what can be 
done to help protect the ability of individuals and groups to 
be able to get lawyers, whether paid or pro-bono, because, 
again, there is an increasing boycott movement right now that, 
if you take on certain cases, there are major corporations that 
are subject to Congress' Commerce Clause power that will drop 
you as a law firm.
    Mr. Gohmert. Thank you. And Mr. Chairman, thanks for 
letting them each answer, though my question went right up to 
the time. And if I might inquire, I was trying to remember, was 
George Wallace a Republican? Do you recall?
    Mr. King. I do not recall that he was ever a Republican, 
Mr. Gohmert.
    Mr. Gohmert. So, he was a Democrat, okay.
    Mr. King. I thank you for your inquiry. I would point out, 
as we conclude this hearing, that, at the last straw pull in 
Ames, I had an individual come from behind me, reach around, 
and grab my microphone, and try to scream and yell and speak 
into my microphone. I did not see him coming. I wrestled the 
microphone out of his hands, back into mine, and I said, ``Get 
your own microphone.''
    So, I think that is a relevant narrative to conclude 
today's hearing. And I want to thank all the witnesses, not 
only for your testimony, but for your response to the 
questions, and thank the panelists for your participation, and 
the staff.
    Without objection, all members will have 5 legislative days 
to submit additional written questions for the witnesses or 
additional materials for the record.
    This hearing is now adjourned.
```