Free Speech

Waiting-and-Seeing on the Trump Campus Free Speech Executive Order

It's an order to create policies, not a policy -- so it's hard to tell what it will do until we see what policies various departments create.

|The Volokh Conspiracy |

I appreciate some of the criticism (e.g., Keith Whittington's and Heather Mac Donald's) of President Trump's Executive Order on campus free speech. Its results certainly could be bad, or good, or neither, or a mix.

But because the order simply instructs various departments to create policies (and coordinate them with the Office of Management and Budget) aimed at protecting speech in federally funded university programs, it's hard to tell what will happen until we see the actual policies. Nor is this uncertainty inherently bad: Ordering your subordinates to use their judgment to come up with something, after some thought, discussion, and coordination is often a pretty sensible way for a superior to act.

Now sometimes when that happens, we can see the writing on the wall, and know that it's bad. But this isn't so here; I don't think any of us can predict with any confidence what the various agencies can do. Of course, if I thought that the federal government just had no business ever requiring free speech protections as a condition of federal university funding, I would fault the order even without knowing just what policies will be implemented. But I don't see any basis for so categorically condeming all possible speech-protective strings on federal grants.

Nor do I think that such policies would necessarily set much of a bad precedent (as Heather Mac Donald suggests might happen); the precedent has already long been set with various conditions attached to federal spending. Trump's actions to protect campus free speech are unlikely, for instance, to be much of a precedent for some future actions (whether by a future President or Trump himself) to restrict campus free speech. Such use of federal funding as a basis for demanding campus speech code already happened during the Obama Administration; I don't see the Trump Executive Order as making that materially more likely.

Finally, if I somehow thought that we were in a speak-now-or-forever-hold-your-peace situation—for instance, if a government action authorizing some future action involved some important grant of power that couldn't easily be taken back (e.g., consider a constitutional amendment authorizing Congress to enact campaign finance laws of its own choice, even if it doesn't specify exactly which laws aut to be enacted)—I could see the value of nipping the proposal in the bud.

But it seems to be that there'll be plenty of time to condemn the actual policies that are proposed when they are proposed, if they need condemning. Indeed, it would be easier to do that precisely because one will then have specific language that one could criticize. Or, of course, if the specific language actually proves to be pretty sensible, one would be spared the need to criticize it.