Category Archives: Free Speech

Donald Trump reportedly told Russian President Vladimir Putin that he had to pretend to be more tough on him in public, according to the new book "I'll Take Your Questions Now" by Stephanie Grisham.

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The David Pakman Show is a news and political talk program, known for its controversial interviews with political and religious extremists, liberal and conservative politicians, and other guests.

Missed an episode? Check out David Pakman on our Youtube Channel anytime or visit the show page for the latest clips.

#FreeSpeechTV is one of the last standing national, independent news networks committed to advancing progressive social change.

#FSTV is available on Dish, DirectTV, AppleTV, Roku, Sling and online at freespeech.org

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Trump Told Putin He Had to Pretend to Be "Tougher" on Him - Free Speech TV

Hundreds of Skidmore sophomores attended President Conners speech on September 6, in which he discussed the importance of differing opinions. I, too, believe there is value to be found in other peoples opinions, and that disagreement, or the discussions resulting from it, can benefit us. It is in that light that I would like to present a divergent perspective on two of the topics from his speech.

Allow me to preface this piece by saying that I hold full respect for our College President. While I disagree with some of the ideas expressed in his speech, this does not reduce his intrinsic value as a person or the value of his opinions. Instead, I am merely engaging in the very discourse and discussion of opposing opinions which he advocates for by presenting my perspective on this matter. In particular, I find two main points of difference between us: the paradox of tolerance, and whether the far left is equal to the far right.

First, let us discuss the paradox of tolerance. During his speech, President Conner suggested that all opinions must be heard. On the surface, our views have much in common, in that I also would like to hear many different views. This raises a question of whether all views should be tolerated. At first glance, it may seem best to have everyone speak. However, further inspection of free speech absolutism reveals potential issues in this plan. For many topics, this may be fine. But what of those who advocate violence against others, whether for beliefs or immutable characteristics? What of a student group which wishes to bring a racist, or homophobic, or antisemitic speaker to campus? These may seem like edge cases, but a skim of the past few years worth of newspaper headlines yields plenty of such incidents and resulting aftermaths on campuses. Clearly this is a topic in need of examination.

The philosopher Karl Popper outlined this issue in 1945, in his tract The Open Society and Its Enemies. In that text, he describes the Paradox of Tolerance as such: Unlimited tolerance must lead to the disappearance of tolerance. If we extend unlimited tolerance even to those who are intolerant, if we are not prepared to defend a tolerant society against the onslaught of the intolerant, then the tolerant will be destroyed, and tolerance with them. In other words, if we allow intolerant ideas to propagate through society, intolerance will build and override the tolerant society. Indeed, this has played out through history in regimes such as Nazi Germany or Fascist Italy, where intolerant anti-liberal ideologues took power and removed the right to free speech, quashing discourse.

While I do not think this extreme level is likely to happen on our college campus, it is worth considering the potential consequences of allowing such views on campus. On smaller scales, oppressive movements can still be devastating to discourse. Can minority students truly speak freely if they are under constant threat from far-right white nationalist groups? While words themselves are not violent, they certainly have the power to encourage violence or intimidate with the threat of violence. It would be lying to say that threats or doxing, which would have to be permitted under a free speech absolutist doctrine, do not have the power to cause harm. Violent and intolerant ideologies can also spread through words and can take hold on campuses. As such, free speech absolutism is not a tenable policy.

As in the name, this is a paradox, and does not have an easy solution. However, I would venture forth a possible model: hate speech laws. Unlike the United States, most countries have laws prohibiting hate speech against protected groups. While these laws are unlikely to be implemented federally, a private university or other institution should be able to place such policies in order to protect minority students. This leaves plenty of room for rich discussion on many topics while seeking the protection of marginalized groups. No ones right to exist should be up for debate, and this is a way to protect speech on other points of policy while simultaneously ensuring that all people have security and freedom to be. How to define hate speech is another issue, and this is one which we can discuss, though marginalized groups affected by it should lead the discussion.

In addition to my disagreement regarding speech with the President, I also disagree with a part of his speech where he claimed that the left is censoring people and that the far left is equivalent to the far right as a threat. This mirrors comments which he made in November of 2020 on a Zoom call with students, where he mentioned both the far left and neo-Nazis as threats. While I recognize his right to this opinion, I do not believe this to be true on a few grounds. First, there is no organized far left in this country, while there is an organized far right. Regardless of what conservative pundits say, the Democratic Party is far from far left; most of the positions in the party platform would be considered centrist or even center-right in most of the world. There are outlying groups, such as the Communist Party USA, but these are very small groups with little to no political power or voice. On the other hand, there is an organized far right party: the Republican Party. It was members of that party which attempted to overthrow the government on January 6, which attempted to interfere with a fair and free election in the months leading up to it. Thus, the power of the far left and far right are not comparable.

Aside from organization, I would argue that the goals of far left and far right political movements are not equivalent. Far left political positions include policies like single-payer healthcare, environmentalism, and improved worker rights. Far right positions often (but not always) include suppression of dissent, religion in government, and occasionally genocide as seen in historic far right movements. I do not think it is honest to compare the former list to the latter. This does not of course mean that everyone on the far left is one way or everyone on the far right is another, but these tendencies suggest a major difference between the two.

While I differ on the details, I hope that this establishment of different viewpoints and discussion thereof allows us to establish a dialogue so that we might come to a better understanding of these issues and find a solution that works for all of us.

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Liberalism and the Paradox of Tolerance: Is the Marketplace of Ideas a Free-For-All? The Skidmore News - Skidmore News

Uptown resident Precious Tahiru just wants to hear her 2-year-old son say three things Mama, Dada and his name, Paris Thompson. Tahiru noticed a delay in her childs speech development at 10 months and set forth on trying to help him. That journey has entailed speech therapy, occupational therapy, as well as visiting an ear, nose and throat physician.

When I took him, the doctor said your son hears like hes in an airplane or underwater, so you guys talking to him, he can hear, but he cant hear you clearly, Tahiru said. Then he had a tongue tie (a condition that restricts a tongues range of motion). He couldnt move his tongue at all. And he couldnt breathe through his nose because his adenoids were so big, so he underwent surgery.

Since then, Tahiru and her fiance have seen a change in Paris hes moving his tongue, making sounds that he wasnt making before.

You can tell he can hear us better ... hes (more) quick to look at us now than he was before he got the surgery, she said.

And Paris journey continues. Thats why Tahirus excited about the opening of the DePaul Speech and Language Clinic at 2400 N. Sheffield Ave. What used to be the admissions office for DePaul University has been transformed to a space where youth and adults alike can get free services from speech language pathologists and clinicians who can aid people with problems with speech, language, communication and swallowing disorders.

We do everything from the neck up, said Treasyri Williams Wood clinic director and DePaul clinical assistant professor. Anything to do with the cognitive processes attention, organization, focus, language, speech, stuttering, fluency, swallowing. Just think of all of the people who have been placed on ventilators for COVID. You have to wean them off, teach them how to swallow, rehabilitate all of those muscles, rehabilitate their speech. That falls within our scope of practice and children on the autism spectrum, developmental delays, cerebral palsy, Down syndrome, all of that we deal with. We have babies in the NICU who are born premature and need to work with speech language pathologists to acquire swallowing milestones and to develop language. We are truly an expansive scope.

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The Lincoln Park facility has been two years in the making, and launched in tandem with DePauls new masters degree program in Speech Language Pathology. Students in the program will work alongside faculty and provide care and therapy to the public. Services will be offered in English and Spanish; DePauls clinic and academic program also will offer specialized training for providing speech and language services to bilingual families and their children with disabilities. In addition to housing the clinic, the space will hold classrooms and hands-on learning for the Occupational Therapy graduate program that will launch in fall 2022. The School of Nursing and the Department of Psychology will collaborate on research and learning within the clinic.

The clinic held an open house Sept. 23. According to Jayne Jaskolski, director of the Speech Language Pathology graduate program, theres a waiting list already for screenings that will begin in October. The site will offer assistance to the public on a donation basis (which wont require insurance) or payment on a sliding scale.

We rely on the kindness of donors. ... Its really that altruistic mission focus of getting people who normally would not have access to these types of services access, and particularly for bilingual clients and people of color, said Williams Wood. Our big focus is on diversity, equity and inclusion, really training up and exposing our future speech language pathologists to the world for where it is right now.

Delilah Martin is a first year graduate student and wants to be able to give people their voice again. Shes trying to decide her niche in the speech pathology field. Shes interested in both sides of the age spectrum, helping children in schools and helping seniors. With a minor in psychology, she wants to be able to incorporate the mental health aspect into her work with the community.

I feel as clinicians, we need to be able to understand the mood of our patients to better assess them, she said. I love that the clinic offers free services. I think thats an amazing thing and makes me happy to be a part of this program.

Jaskolski and Williams Wood said the DePaul Speech and Language Clinic is the sole site offering such services for free in the heart of the city. Their location isnt limited to certain cases or disorders.

Were trying to rise to meet the needs of the community, Williams Wood said. That includes making diversity, inclusivity and access a priority both in the clinic and on the academic side. Williams Wood said shes done supervision with future clinicians who have never interacted with a person of color, or with someone from a different background. This space will help bridge that gap in a safe environment. Being a speech pathologist of color, Williams Wood is passionate about creating speech language pathologists who look like the populations they serve.

Our clients need to be able to look into the face of their providers and see themselves thats very important, she said. Often in these programs with university clinics and free clinics, we have nonwhite clients being serviced by this homogenous group of people that really dont have cultural competence. ... We have to train our graduate clinicians, and we have to expose them to a vast variety of cultures and different practices so that they can be ready and that starts here in our clinic.

Martin says cultural competency, especially in a field like speech pathology, is very important.

You cant promote something that you also dont embody yourself, she said. To see that we have a diverse faculty and to know there are people that understand, clinicians that look like you and understand you, bring that comfort and its something that makes me happy.

Faculty and students expect to treat 400 patients in the clinics first year. Tahiru found the facility through a referral from Marillac St. Vincent, where her son attends early Pre-K. Paris is now one of the clinics first clients.

I want to see Black and brown children running across our quad and receiving our services and I want them to feel like this clinic is their clinic, Williams Wood said. We say Chicago is our classroom, community is our focus. We have been blessed with this clinic space and this environment and these resources, and were giving them back to the community.

Martin said seeing a Black woman like Williams Wood lead the clinic gives her hope. Tahiru is also hopeful about the possibilities of the clinic helping her son.

Honestly, I want him to go at his pace, but of course I have more expectations for him, she said. I just want to hear three words. All I can do now is continue to give him all the resources that he needs, and DePaul will be a great resource.

drockett@chicagotribune.com

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DePaul University opens free Speech and Language Clinic with bilingual services: Our clients need to be able to look into the face of their providers...

HR pros should prepare for free speech complaints before issues arise, according to Greg Hare, shareholder at Ogletree Deakins an undertaking that can require employers to set rules and implement training.

Addressing the crowd at a Sept. 10 Society for Human Resource Management conference session on the balance between employee free speech and workplace civility, Hare leaned on his baseball coaching experience to emphasize one key takeaway for HR professionals: know what to do when the ball is hit to you.

"There's a reason that the United States has had one of the biggest challenges in the world when it comes to COVID compliance," Hare said. "It's because we are unabashed individuals. Everybody has their own mind, everybody has their own thoughts, everybody thinks that they know the best way to do things. That includes your employees as well."

Having worked with clients over the years to perform "human resources triage," he provided some advice on approaching difficult situations.

When the #MeToo movement happened, in many cases, "people [already] knew there was a problem," Hare said. But when leaders in those situations heard the complaints, they often didn't want to investigate "they didn't want it to be true," Hare said and the organization did nothing.

Contrived issues happen as well, when bad-faith whistleblowers are attempting to undermine another person or group out of resentment or for another reason. Hare used the 2007 Duke lacrosse scandal as an example of a mistaken rush to judgment.

Due process doesn't tend to occur in the workplace except in unionized environments, Hare noted; "wrongful termination" can be determined based on age, sex, national origin, disability, and related markers, but it doesn't apply in most nonrelated free speech circumstances.

Still, employers should strive for due process "as a matter of positive employee relations and positive workplace culture," Hare said. "Even though that employee is gone fired on Tuesday on Wednesday morning, [when] you go back to work, the employee may not be there, but all their co-workers [will be]. And they're going to be looking at you and saying, 'Was that fair?'"

Workers often misunderstand the right of free speech in the United States, Hare said, thinking it should be consequence-free at all levels. But the obligation to allow free speech only applies to the government.

"As a company, [you] can uphold your virtues, cultures, customs, and you can insist that employees don't do something that undermines the company," Hare said. "That's pretty fundamental."

Hare brought up the example of a Colorado-based company: in the wake of Colorado's legalization of recreational marijuana, an employee posted a photo on social media of himself smoking a joint while wearing the company uniform and operating a forklift.

"Naturally in that situation [with the employee in] a safety-sensitive position, [wearing the] company uniform that's tremendously embarrassing," Hare said. "The last thing that a company needs to do is tolerate that type of behavior."

But employers needn't hire a handful of HR workers just to monitor employees' social media behavior. With the exception of closer inspection of high-level C-suite hires, for example, it's rarely worth the company's time to monitor employees' public social lives so closely. (Gaining employees' trust and respect is, of course, another issue with surveillance.)

When issues do come across the HR desk, it's important to ask: Is this work-related? Sometimes, as in the case of protests of workplace-tangential issues, it can be complicated, Hare said: "If employees are protesting the country's immigration laws, and therefore the company's rules for verifying eligibility for employment, is that work-related?"

Employers are most likely to get in trouble for reprimanding or firing employees for speech when it violates policies laid out by agencies like the National Labor Relations Board, the Occupational Safety and Health Administration or the U.S. Equal Employment Opportunity Commission. Because agencies' priorities can change significantly from one administration to the next, employers need to keep on top of new rules.

During the Obama era, Hare said, the NLRB issued a number of workplace-related rules meant to protect workers' right to organize that likely had a big impact on many employer handbooks, including requiring employees not to engage in insubordinate activity or share confidential information online. While many of those rules were "peeled back" and clarified during the Trump years, Hare said, they are likely to shift again with the current administration.

Employers should also keep in mind that if made in good faith, "even a nonvalid substantive claim can result in a valid retaliation claim."

Beyond federal agencies, over the past few years, "more and more states are starting to dive into the employment law sphere," Hare said. With the additional strain of COVID-19, even counties and cities have issued ordinances that HR leaders need to track.

Finally, in addition to HR pros understanding what to do, other managers need to know as well, Hare said. Often, employees take their issues to direct supervisors rather than HR.

Sometimes, companies can find themselves facing discrimination or other claims when a front-line supervisor dismisses an employee's complaint out of hand, resulting in a legitimate complaint that nothing was done.

"Make sure that your front-line managers know to acknowledge the complaint," Hare said. "Simply teach all of them to say, Thank you. I appreciate you using our open door policy to bring that to the company's attention. We take complaints like this very seriously. We will investigate, we will make sure that we look into this, and then we will come back to you to tell you what we have found.'"

After acknowledging, supervisors should know how and where to escalate the complaint so it can be investigated, with any issues fixed and adjustments made so the problem will be less likely to occur in the future.

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How HR can find the free speech line - HR Dive

Students of New York University protest then president-elect Donald Trump in Manhattan, N.Y., November 16, 2016. (Bria Webb/Reuters)

The American Left used free speech to obtain a position of ideological domination in our colleges and universities and now that they have that position, theyre turning against free speech in favor of controls over speech that doesnt further their agenda. Should those of us on the other side of our great political divide learn something from that?

In a recent book, Michael Knowles argues that conservatives should have fought the Left by suppressing their speech. The Martin Centers Sumantra Maitra reviews his book here.

Maitra writes, Knowles is a conservative, in the original sense of the term. That means he cuts through the fantasy that has permeated American conservatism (as opposed to their more power-friendly and reactionary Euro cousins) in the past forty years, namely, that humans are all fundamentally rational animals, and that everything can be solved by civil persuasion in the marketplace of ideas. Its increasingly hard to square that worldview with the reality of the last four years, and Knowless book offers a mild reprimand while suggesting a few course corrections.

According to Knowles, our effort at maintaining value-neutral universities was doomed to failure. American conservatives should have tried to keep out the destructive ideas of progressivism, deconstructionism, and all the other isms that today bedevil us. The responses by conservatives to leftist ideas have been naive, feeble, and impotent, he argues.

So, what course of action does he prescribe? In particular, we would need to restore prohibitions against obscenity, which politically correct radicals have long exploited to arouse the peoples base passions and undermine their liberty, just as the Founding Fathers feared, Knowles writes.

I havent read the book, but I doubt that such prohibitions would have done anything to stem the tide of bad ideas flowing into our universities. Also, I wonder what the U.S. would be like if a conservative cabal had been in control since, say, the 1950s, using power to suppress speech that it found threatening. History teaches us that power is dangerous, no matter who wields it.

Knowless book opens (or re-opens) a debate thats worth having, at least.

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Was Free Speech Absolutism a Mistake in Higher Education? - National Review

Words have no meaning; they are malleable and subject to change at the whim of the powerful.

Today, Black people could be called white supremacists, Jews could be called Nazis and scientists could be called anti-science. The reason is obvious. It is because these people, and many others, dare to deviate from the worldviews of the powerful.

These words, which are used against political enemies of the powerful, have no meaning; they are simply badges.

They are badges that we place on those we disagree with so that they can be identified in a crowd, pulled to the side and reeducated or expelled by society.

For too long, Big Tech has controlled what we say by imprinting into the minds of the masses a certain worldview. They have silenced dissenters and outcast those who dare to disagree. The very notion that a company would hire fact-checkers to fact-check private speech is outrageous. It is as if these private companies have crept into our homes, placed monitors on our minds and filtered our thoughts.

Did we need fact-checkers to end the thousand-year idea that slavery was natural, as Aristotle said? Did we need fact-checkers to guide our Founding Fathers hands in writing our Constitution? No.

What we needed was the natural, unfiltered flow of ideas from one person to another. In the past, the free flow of ideas was at full throttle. Rational thought spread like wildfire without the need of social media. Irrational thought died with the few patrons who consumed it. The world was changed by the thoughts of a few ordinary people who dared to think. Of course, people disagreed and some even became violent, but a persons right to open their lips and unleash volumes of unique ideas upon their neighbors should never be stifled by the vitriol that their thoughts could create.

Today, speech is reserved for the powerful few: the celebrities, the social media companies and the traditional media companies. Any thought that deviates from their message is met with swift, unrelenting punishment, now known as cancellation. Too often we hear of individuals having their lives destroyed by seemingly innocuous acts that can hardly be said to be representative of them. But atop a throne, it is easy to step on ants. Each day brings new ants for the powerful few to step on. The enemy of yesterday becomes old news forgotten and thrown into the grave of unwanted souls and a new target is found for them to take aim, fire and destroy.

Labels make it easy to destroy people; they shift burdens of proof to the party being labeled, making it impossible to wipe away the label one is given. If one is labeled as anti-vaccine, for example, that labeler need not say why that person is anti-vaccine.

Instead, the person labeled will have the burden of proving that they are not anti-vaccine.

How can they prove this, might you ask? They cant.

That is because the label means whatever each individual wants it to mean and, most importantly, what the powerful entity that labels the person tells everyone what the word should mean.

I fully support the COVID-19 vaccine; I have stated that publicly before. So then why am I constantly labeled as anti-vaccine? The answer is obvious: Anti-vaccine does not mean that one is against the use of vaccines. Instead, it means that you do not fully support studies that support the vaccine. It does not even matter that other credible sources have differing opinions from those other sources. That is because, apparently, something is only credible when people say it is.

Despite our societys heavy reliance on dictionaries, it seems we would save far more time and be far more successful using definitions of our own. After all, if words had concrete definitions, then how could Merriam-Webster define anti-vaccine as opposed to the use of vaccines while I, and many others who support the COVID-19 vaccine, continue to be branded as anti-vaccine?

It is true what they say: He who controls language controls thought. It simply takes one powerful individual to label someone as something he or she is not. Suddenly, the individual will become the very thing that he or she never was, and the word used against that person will mean what it never did.

We should all continue to express our thoughts honestly, unfiltered and uninhibited; I know I will. Of course, I urge you to conduct your own research to determine for yourself whether something that someone says is true. After all, what another person says could be wrong, but it is not a strangers nor a fact-checkers job to tell you that. It is your job to look at the facts, connect the dots and come to your own conclusions. You certainly might get it wrong; we all do because we are human.

But at the end of the day, right will always prevail from wrong, the truth will overcome falsities and good will triumph over evil.

I will never shut my eyes, cover my ears nor cut out my tongue to appease others, and nor should you. Your natural right to speak will prevail over any evildoers attempt to silence you. Just keep talking.

Armstrong Williams is a political commentator, author, entrepreneur and founder of Howard Strirk Holdings.

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Armstrong Williams is a political commentator, author, entrepreneur and founder of Howard Strirk Holdings.

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Armstrong Williams | Free speech is the ultimate truth - TribDem.com

Anti-vaxxers are onto their next miracle cure for treating COVID-19 and thats gargling with iodine. Last year, their big recommendation was to take hydroxychloroquine because Donald Trump told them to. More recently, livestock dewormer ivermectin has been the drug of choice. But now anti-vaxxers seem to be moving on to the next exciting thing and thats snorting or gargling iodine. Povidone iodine is a treatment typically used for cuts and scratches, but its usefulness for those issues is questionable as well. The makers of Betadine, as povidone iodine is known commercially, released a statement reading, Betadine Antiseptic Sore Throat Gargle is only for the temporary relief of occasional sore throat. Betadine Antiseptic products have not been demonstrated to be effective for the treatment or prevention of COVID- 19 or any other viruses. There is nothing wrong with questioning and studying whether or not any of these medicines hydroxychloroquine, ivermectin, and iodine, can work to fight COVID. The problem comes in is when quacks on social media promote them as a miracle cure without any confirmation from the broader medical community. Susceptible people could come across these posts and refuse the vaccine and other mitigation efforts, all because they believe they have the secret cure for the virus and that theyll be okay if they get it.

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The David Pakman Show is a news and political talk program, known for its controversial interviews with political and religious extremists, liberal and conservative politicians, and other guests.

Missed an episode? Check out David Pakman on our Youtube Channel anytime or visit the show page for the latest clips.

#FreeSpeechTV is one of the last standing national, independent news networks committed to advancing progressive social change.

#FSTV is available on Dish, DirectTV, AppleTV, Roku, Sling and online at freespeech.org

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Anti-Vaxxers Are Gargling with Iodine to Prevent COVID - Free Speech TV

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See previous 74 Interviews: NYC principal Alice Hom on anti-Asian sentiment and COVID, Gloria Ladson-Billings on culturally relevant teaching, and Mary Beth Tinker on free speech and youth activism. The full archive is here.

With repeated controversies erupting this year over how schools teach issues of race, gender, and sexuality, Republican lawmakers in state after state have proposed and passed laws focused on classroom discussions of divisive concepts. The movement only the latest to ensnare local education officials in national political debates has won the approval of some families, who fear their children are being taught anti-American propaganda about systemic oppression and the sins of whiteness. But many teachers say the bans trample on their free speech and risk sanitizing the realities of American society.

To Bonnie Kerrigan Snyder, a fellow at the Foundation for Individual Rights in Education (FIRE), the pushback against what she calls thought reform in the classroom is overdue. A former teacher and school counselor, she is the author of Undoctrinate: How Politicized Classrooms Harm Kids and Ruin Our Schools and What We Can Do About it, released Tuesday by Bombardier Books. And while she proclaims herself somewhat uneasy with the prospect of legislating what can and cant be said in the classroom, she also believes passionately that teachers in too many communities have lapsed into preaching about politics.

Its an accusation that has triggered shouting matches at board meetings and led to calls for some teachers to be removed from the classroom. But the controversies also vary widely in substance. On the one hand, critics point to third graders being asked to describe their identities in terms of privilege and oppression, and major school districts seeking to insert elements of ethnic studies into math instruction; on the other, educators around the country are earnestly attempting to refocus some lessons on long-neglected episodes from American history, such as the Tulsa race massacre.

The struggle over politics in teaching is typically associated with higher education, which is where FIRE focuses most of its efforts. The nonprofit often represents faculty members suing their colleges over restrictions to free speech on campus and has defended the due process rights of students accused in Title IX investigations of sexual misconduct. It also takes a nuanced view of the proposed restrictions on classroom speech, with Kerrigan Snyder and organization president Greg Lukianoff recently arguing that many are probably constitutional, though not above criticism.

FIRE does not presently take on K-12 cases, but Kerrigan Snyder who helps lead FIREs high school outreach program argues that K-12 educators are becoming increasingly willing to indulge their own ideological predispositions, in large measure because of teacher preparation programs that have developed into what she describes as political monocultures. When it comes to the teaching of intrinsically controversial subjects, she adds, instructors need to ask themselves: Is it age-appropriate? Is it aligned with the curriculum? Can I be even-handed? And could the discussion become inflammatory?

In a conversation with The 74, Kerrigan Snyder discussed her views on how schools began to drift toward indoctrination. The interview has been edited for length and clarity.

The 74: FIRE is an organization I associate with the cause of free speech on college campuses. Where does K-12 teaching, and controversies around its content, become a free speech issue? A lot of your book focuses on protecting the rights of kids to be able to speak their minds in the classroom. But many argue that the state laws being proposed to curb discussion of divisive concepts, such as race or or gender, just end up censoring teachers. Where do you stand on that?

Bonnie Kerrigan Snyder: At FIRE, were paying close attention to this legislation that seeks to ban certain ideas in K-12. We support what the First Amendment says and what the Supreme Court has ruled on freedom of expression. Were very concerned about the thought reform aspects of this, where teachers are attempting to enter the private realm of thought and belief and try to compel students to affirm views that they might not wish to. And were concerned about students who self-censor. When children are afraid that if they say something the teacher doesnt like, therell be retaliation, then everybody is being inauthentic in the classroom, and nothing meaningful is being discussed.

Students are showing up on college campuses with some very strange notions about the First Amendment, their rights, and other peoples rights; they seem to think they have the right to censor other people if they dont like their speech. So a lot of what we try to do is educate teachers, students, and parents to counteract this, and generally, were in favor of more speech versus enforced silence. Thats why we would prefer that these disputes over curriculum be settled through persuasion, not coercion. When the government gets involved, its a matter of might making right.

That being said, at the end of my book, I warn teachers that if they lose the trust of the community, theyre going to be micromanaged and see greater supervision than they have before. I submitted the book earlier this year, and already what I said is coming true: With these laws coming down from legislatures, we now see that teachers could lose professional discretion in ways that will limit the scope of their operations within the classroom.

When there is goodwill and trust between parents, teachers, and the community, teachers can operate with a great deal of flexibility. But Ive unearthed some teacher communications where they call themselves co-conspirators, or they talk about creative insubordination. I wrote an article giving the example of a district official in Missouri that was getting complaints about some of the lesson plans; the official just instructed teachers to change the lesson plans so that parents wouldnt know what was being taught. When these sorts of duplicitous means are being used, it does not surprise me that the state gets involved. [Editors note: The district placed private security at the home of the literacy coordinator in question following what the local teachers union described as personal attacks and outright threats of violence in response to the incident.]

In the end, checks and balances come into play. Teachers are going to speak their minds, it plays out at the school board, and we get to vote for the people in our legislatures. These bills have been proposed, not all of them have been passed, and were going to see where it goes. But the phrase that comes to mind is, When you sow the wind, you reap the whirlwind.

But arent you concerned that if whole areas of inquiry are banned from the classroom, it will prevent students from becoming informed participants in democratic discussion? It strikes me that if teachers are nervous about initiating any uncomfortable conversations, kids will just be living in an intellectual safe space.

Teachers should absolutely have some flexibility, and it goes back to the issue of trust. The more professional you are, the more trust you build, the greater the latitude you should have in addressing those controversial subjects.

I published an article in the Journal of the Middle States Council for the Social Studies about guardrails for educators. I know teachers are concerned about this, so I looked at the existing legal precedents from when teachers have found themselves in hot water. Based on what the law shows, one of the guidelines you should follow is, Is it age-appropriate? If youre an elementary school teacher, should you be talking about, for instance, Afghanistan? What would make you think that youre the right judge of whats happening? Maybe its too recent for you to have sufficient perspective.

Another question is, Is it aligned with the curriculum? Do you even have a curricular mandate to be talking about current events? Possibly in social studies, but unlikely in other classes, so you might have to ask yourself why a certain topic is coming up. Then you ask, Is it even-handed? If youre going to talk about something thats going to ruffle feathers, it needs to be done in a way that gives the perspectives of competing sides. Teachers are expected to be honest brokers are you doing that? If not, youre liable to hear from angry parents.

And the last question is, Is it inflammatory? Which basically means that people get so upset, you cant meet your learning objectives for the day. I tell teachers that sometimes you can hit a tripwire, and theres no predicting that you just stepped into some inflammatory material. But anything thats trending on Twitter or in the op-ed pages of your local newspaper probably wont make for the best learning experience. Adolescents in particular can become very emotional, especially with things that are really personal to them, and then your rational faculties go out the window.

Getty Images

So you do have to exercise a certain amount of professional discretion, but that doesnt mean that you steer away from every topic that might be considered controversial. You want to be somewhere between So boring that the kids fall asleep and So incendiary that an argument breaks out and no learning takes place. A lesson can work in four classes and then just explode in a fifth because of the maturity level of the kids. Thats what professional experience helps teachers to navigate. So those questions I put forward are guardrails, but teaching is a practice; educators are not just functionaries, they have to apply their accumulated wisdom to an ever-changing array of circumstances. Thats what makes it a challenge.

Some of the backlash against whats being called critical race theory in schools has been directed at efforts to broaden the curriculum and educate kids about the history of Americas racial problems. In one instance, parents have militated against the teaching of a curriculum that includes the autobiography of Ruby Bridges, one of the first African-American students to integrate an all-white school in New Orleans. Are you concerned that casting too wide a net can hurt learning?

I absolutely agree that so much negative attention has been attracted by some of the more objectionable aspects of CRT that reasonable attempts to broaden the curriculum could be undermined. On the other hand, all of the negative attention focused on CRT they call this the Streisand effect might just make it more appealing, more alluring to students. If you tell somebody they cant study something, the natural instinct of a young person would be to defy that, so its important to be careful not to overstate the dangers of it. The theory at FIRE is that more speech, not enforced silence, is the best way to deal with what might be deemed bad speech. While I could argue that other things should occupy more curricular space, the wholesale banning of an idea typically can backfire.

Ive actually worked with 1776 Unites [an educational project launched by the nonprofit Woodson Center in 2020 to counter what it described as the dangerous and debilitating message of the New York Timess 1619 Project], which includes a lot of African American scholars, as they develop lesson plans around these topics. And I discovered in that process many gaps and deficiencies in my own education on topics such as these. I learned about the Rosenwald Schools, which were some of the schools that Brown vs. Board of Education eventually decided were separate and inherently unequal. Ive lived in South Carolina, and this was in plain sight, but it was just invisible to me because I grew up in a different part of the country and didnt know anything about it.

I would love for kids to learn more about Native Americans in the curriculum, not to mention women. Im a woman, and probably 95 percent of the U.S. history Ive studied has been either written by or about men. That being said, it never really stopped me from looking for the common threads that are relatable to me. There are lots of stories about people, or by people, who look different from us, but we all want to see ourselves reflected to some extent in what we learn. Thats completely understandable.

Lynda Gunn poses next to the 1964 Rockwell painting The Problem We All Live With. Gunn modeled as Ruby Bridges in the painting, which depicts the 1960 fight over school desegregation in New Orleans.(Getty Images)

Going back to your book, could you describe the problem you address? You refer to it as thought reform. In your view, how prevalent is it in K-12 schools, as opposed to university settings, where FIRE is most active?

I would describe it as teachers exceeding the boundaries of their prescribed role in the classroom and commandeering the classroom for personal or partisan ends. When were talking about public schools, theyre a public good thats paid for with tax dollars, so that really is a misuse of public funds.

I think this is much bigger than the current controversy. Its not actually new; this problem has been with us for decades, and its been low-grade and chronic. But recently its become acute, like an underlying condition in your body that youre able to ignore until you have some sort of sudden medical incident. Its pretty well understood that this year, there was just a lot more transparency and ability for parents to see whats going on in the classroom. And with all the cultural upheaval, some educators felt emboldened to do what theyd been inclined to do anyway, and what theyve been doing in classrooms for quite some time.

As to how much of this is going on, I think it varies from district to district, school to school, and classroom to classroom. Its partly a function of location and partly one of demographics. At FIRE, weve seen a lot of anecdotal evidence that the problem is most acute in affluent areas and private schools, and seems more common in cities than in rural areas. Certainly Ive mentioned this problem to people in a few places, and they didnt even know what I was talking about.

I suspect that it is increasing because of the retirement of Baby Boomers, who were themselves educated by teachers from older generations with more traditional ways of instruction. I was educated by people who were probably trained in the 50s. So you have to think not just of the age of the educator, but the age of the educator who educated them! It seems like the younger teachers coming out of ed schools are much more activist-minded, so I think this problem is increasing rapidly.

Youre arguing that a big pedagogical change has occurred over the last few generations, as older teachers have been replaced by younger, more radical ones. Isnt it possible that the movement toward anti-racist pedagogy is driven by a much broader change in racial attitudes among whites along with a desire by younger, more diverse Americans to see themselves more reflected in schools and classroom materials?

There are some demographic changes that are driving this. One would probably be the decreasing number of white people in the population, but theres also this retirement of a bubble of people who were born in the 40s and 50s. So its a confluence of demographic forces. I think the Baby Boomers have tended to portray themselves as being radical, but having been taught by prior generations, their education very much was not. That said, the Baby Boomers had a big hand in educating this generation, so maybe their radicalism is now showing through somewhat.

Historically, whenever there is a large group of young people, you tend to see big movements form. What we have now is a Baby Boom-let, the Millennials, who are their own bubble in the population. In the same way that Baby Boomers created something more than a ripple, partly because of their huge numbers, I think part of what were seeing now is a large generation that is of an age where people tend to be inclined to upend the existing order and make dramatic changes. Its a stage that people pass through as they mature. In that sense, its not surprising, and its probably a factor in the appeal that these ideologies hold with such a large group of young people.

Where do you think these intellectual trends came from, particularly in K-12? For most of our history, it seems like public schools promoted a view of American history and society that was essentially patriotic, if not chauvinistic certainly not one that questioned existing power structures.

FIRE published an article where we talked about how common schools in America were established by the government to promote government speech and ensure domestic tranquility. Its not surprising that they would teach a view that promotes cohesion and patriotic ideas.

So there is a dominant position on American history that is open to interrogation, and I certainly would never want to interfere with a students right to critique it or with exposing kids to a reasonable amount of competing views; thats part of what a thorough education provides. But when the critique seeks to become the dominant narrative, its giving kids a pre-digested conclusion and asking them to retrofit all the information they havent yet been given to this preconceived conclusion.

Id also say that this critique seeks to suppress competing narratives and disallow dissent, which short-changes kids education and, really, trains them not to question authority. I just think this isnt a healthy learning environment, and it doesnt let kids develop the intellectual muscles they need to prepare them for self-government.

FIRE often defends the rights of university professors who say theyre being censored by their institutions. Youre not part of the legal team, but can you see a role for FIRE, or other organizations like it, in coming to the aid of teachers who are disciplined under laws restricting discussions of divisive concepts in K-12 classrooms?

We have people who ask FIRE to jump into the K-12 legal realm all the time, and Id say its something that is under consideration. Teachers have the unions, which will obviously help to defend them. My understanding is that [leaders of the American Federation of Teachers and the National Education Association] have come out to say that they will defend teachers who teach CRT.

I would say that parents have rights, and students have rights, but teachers have responsibilities. Thats why theyre paid. Teachers speech in the classroom is hired speech, and its really government speech; the government is hiring you to deliver a curriculum thats democratically adopted by districts, in accordance with state legislatures. So I think that teachers have to realize that their instruction needs to be aligned with the learning standards that their state has adopted.

Anything youre teaching, you should be able to relate it to the published learning standards for the grade and subject that youre teaching. You dont want to present a conclusion to students and work backwards from that because these are open-ended questions that were trying to figure out as a society. Critical race theory is a lens through which to view the world, but its not the only one. If I were going to talk about it, I would always want to present it in the context of competing versions of how to interpret historical and current events.

I want to pose another argument Ive seen, even from those who are probably sympathetic to your views: There may be some teachers mixing ideology into their history or social studies lessons, but the fundamental issue is that too many kids just dont reach proficiency in those disciplines at all, according to year after year of standardized test results. Given that the overall academic performance is so poor, shouldnt we be more concerned about just providing kids with basic knowledge?

Yeah, its kind of amazing that teachers have time to be discussing these esoteric, advanced perspectives. I just dont consider most of it to be introductory, its more in the realm of a late-night graduate study session. Its not a good way to introduce students to basic material, so it really serves teachers needs more than students.

One of the problems were seeing is that teachers are covering content that is of interest to them but isnt necessarily what their students need, and thats poor pedagogical practice. The teacher is paid to meet the needs of the students, and the learning outcomes were seeing show that these ideological itches that are being scratched are not serving students in the classroom well.

I also think that the way these ideologies are being expressed in the classroom is being perceived by students and parents as abrasive and, in some cases, tantamount to bullying. As Maya Angelou said, People forget what you said, but they remember how you made them feel, and I suspect that a lot of students dont feel good about whats going on in their classrooms. Kids are not a means to anyones end, theyre ends in themselves; their compulsory presence in your classroom is not to serve some partisan goal that you cherish. The word education means to draw out to draw from the student what is inside of them. Each one is a unique, autonomous being, and youre there to find out what they are capable of, not to enact your worldview.

Parents are mobilizing around this issue. There have definitely been some heated school board meetings this year, and state lawmakers seem happy to make this a campaign issue, but do you think itll go further than that?

Parents are certainly coming forward, and theyve obviously had a great impetus to want to come forward: These are their children, and nothings nearer to their hearts.

Ive been following this problem as a sort of unpleasant hobby for over a decade. Going back years, Ive heard anecdotally about incidents all over the place, though Ive focused on the ones that appear in the press. But for a long time, the strategy has mostly been to say, Its just a few more years, Ill get my kid through and fly under the radar. But its suddenly become very acute, so parents are speaking up some would say too much, though I happen to think that weve been complacent too long, and people should have always been more involved with their school boards. Some of them are being too aggressive, but I do get it. They feel like their children are being targeted.

I think Im optimistic at this point, mostly because I see parents asserting themselves. It doesnt mean theyre right about everything they say, but its good that everyone is in the conversation and the checks and balances are operating as they should. Parents have been way too uninvolved, handing everything off to the teachers, and now they realize theyre going to have to pay closer attention to whats going on in school board meetings.

If youre ambivalent about the laws being passed in legislatures around divisive concepts, what do you think education authorities should be doing to address the concerns of parents? One of the avenues Ive usually heard discussed involves changes to teacher preparation programs.

FIRE has previously taken on teacher training when it came to [the National Council for Accreditation of Teacher Education] trying to impose social justice dispositions on educators meaning that youd have to believe in certain political ideas in order to be certified as a teacher. We fought back on that because of the aspects of thought reform, and we won. [Editors note: In 2006, following protests from FIRE and other groups, NCATE formerly a leading accreditor of teacher education programs, and since reorganized as the Council for the Accreditation of Educator Preparation removed language referring to social justice in its glossary of recommended dispositions for future teachers.]

Definitely, we recognize that the best way to change this is in the ed schools. Its going to be a tough climb, but its necessary at this point. Teachers are licensed for the same reason that doctors and dentists are licensed: Theyre in a position to do real harm to vulnerable people, and no one in our society is more vulnerable than children. States have all the power they need to award or withhold licensure, and I think theyre going to have to apply more oversight.

One of the recurring questions in this book is, Wheres the oversight? Department chairs and principals and curriculum directors should be applying more consistency throughout schools. The subtext needs to be that this isnt a free-for-all; you cant have one teacher whos a freewheeling zealot doing whatever they feel while the rest of the classes are teaching to the end-of-year tests. Thats just a failure of administration.

Any time you have a one-party monoculture, things go awry. Things have definitely gone awry, and were overdue for a correction in our ed schools.

The thing is that teacher prep programs are themselves downstream of the larger intellectual culture. In the book, you talk about a need for a return to normative social agreements basically, ideological restraint and respect for diversity in thought from all people, not just educators. It seems like it will be a lot harder to develop those traits than to just pass a law saying what teachers can and cant say.

I actually think its kind of easy to legislate how contentious issues should be handled, which is that they should be approached from a variety of angles, leaving room for dissent. There are some things on which I think weve achieved cultural consensus for example, that we were the good guys in World War II. I suppose somebody could advance a counter-narrative, though I wouldnt give a lot of class time to that because I think we have a near-unanimous consensus. But when it comes to current issues under debate, you have to show some epistemic humility and leave room for the possibility that you might be wrong.

When you have this unscholarly certainty that youre in possession of the absolute truth, thats where youre likely to get in trouble, because its a very un-academic stance for an educator to take. Its that old John Stuart Mill idea, He who knows only his side of the case knows little of that: You have to give the devil his due.

See more here:
The 74 Interview: Author Bonnie Kerrigan Snyder on Free Speech, Critical Race Theory and 'Giving the Devil His Due' - The 74

Beals

Surry County, what a great place to live. A little over a generation ago, before our first now adult child was born, my wife and I had the opportunity to choose where we would raise our family. We found perfection on the banks of the Yadkin River here in beautiful Surry County. It was a place that values your contribution as a unique individual for the greater good of the community and came with a feeling of being loved in a non-judgmental environment. It is in this light that I have chosen to share my thoughts in hope of preserving and improving upon this great community we all call home.

As I convey the virtues of a strong sense of the common good, I really do not want to taint our beautiful community with the partisan divide that we as a country and community have found ourselves in, but at this point it needs to be addressed. One of the things I loved about this community when I arrived was that the partisan divide did not matter; without blindness to the reality that it still existed, it was bantered back and forth in a jovial, fun-loving way. It was not a war of good versus evil or the thought that we were each in a fight to save the world from the evil curse of the other political side. As a matter of full disclosure, I have great respect and admiration for the Grand Old Party of the past. This is the party I hold my allegiance to, a party that strives to respect the rule of law and fully embraces free speech. I believe this is the party that seeks to value every individual and the right for that individual to act, free from the shackles of government regulation and manipulation of commerce.

To be quite blunt, the Republican ideal of freedom is changing.

To highlight the changing definition of freedom, I recall a group of people I worked with forty years ago. In 1982, I started my short career with my previous employer, the Walt Disney World Corporation. Epcot Center was having its grand opening and I was hired to be part of the Epcot Main Entrance team. It was quite the opportunity to witness the influx of foreign exchange students that came to Disney from their homeland to staff the different countries in the world showcase. To hear these yearlong visitors talk about the absolute and authentic freedom of the US as they worked and moved around our country was enlightening. The Chinese were amazed and astonished that they, as foreigners, were allowed to buy maps (in their country it was a crime of national intelligence) or move around the country without a government tour guide. The French, Italians, and Germans loved the freedom of our far less stringent regulatory environment and lack of far-left and far-right political propaganda. They loved the virtues of free thought and the absence of public pressure to side with a particular political viewpoint. The Japanese loved that work was not everything and the value of social activities meant something here. They all loved the true freedom that existed without pressure from hidden agendas.

That freedom of thought and freedom from extremist pressures to take sides that the French, Germans, and Italians loved about America seems to have eluded us. Has our social evolution moved to something more akin to the political extremism that brought us the wars of the early twentieth century?

One of the more noticeable factors tearing our country apart is the divisiveness of language from our political leaders, both nationally and (more recently) locally, that have embraced national news talking points word for word. Although both parties are guilty of demagoguery, my beloved Republican party, while accusing the other side of mandating policy, is the actual party aggressively instituting policies and resolutions. There is no fear of showing their own lack of personal depth and independence as they quote Fox New reports verbatim. The networks have created a machine of manufactured stories. The result is a rallying call to their base to fight a non-existent enemy or, at best, an enemy of one extremist that has posted a view. In the world of social media, you can always find unhinged outliers, but that does not mean their view is accepted by the mainstream. Although the networks pose as defenders of our country and its freedoms, their relentless focus on fringe-dwelling extremists stirs up hate and anger toward those we used to regard, rightfully, as the loyal opposition.

One of the more noticeable factors that is tearing our country apart is how our political hack government officials both nationally and locally have embraced the national news networks talking points, word for word. The recent antics of two Surry County Commissioners provides a perfect example. During the May Surry County Commissioners meeting, one Commissioner repeated verbatim the chant and action plan of their favorite news network while the second Commissioner cheered him on. As the two Commissioners continued with their orchestrated word-for-word network rant, neither seemed aware or concerned about their comically obvious hypocrisy. While heralding the importance of free speech to our democracy, stating that we shouldnt seek out to silence opinions that we do not agree with. The Commissioner then, without missing a beat and in the same breath, tried to silence an opinion that he did not agree with by requesting a policy to punish Coca-Cola for a free-speech statement made by the CEO.

This behavior is anti-Republican and anti-American. It is one thing when people protest against a company but quite another when government agencies create policies which harm specific companies and its employees in an attempt to retaliate against a stance made by a CEO. Fortunately, three Commissioners in Surry County realized the hypocrisy of this censorship; they voted against removing the Coke machines. As they attempted to regulate free speech in the Coca-Cola case, our Republican party paraded the My Pillow Guy as a great leader and beacon of free speech. Are we really going to choose which companies are promoted and which companies are condemned and silenced into acquiescence? This behavior is very much akin to the actions taken by a regime during World War II which

penalized and regulated Jewish businesses and left them in the hands of loyalist that praised the regime. It is destructive to harm local citizens for a statement made by corporate headquarters. These public officials are holding our local workforce hostage to their governmental attempt at controlling speech.

The network inspired rant did not stop there. The second Commissioner, when talking about certain corporations which he didnt like coming to this area said, I dont know of any Amazon Hubs around here. Thank goodness, I hope not ever. I must put my foot down and state that they have gone too far. What these Commissioners are insinuating is that delivering the network rant is more important than their own Surry County citizens and the jobs that might be created if a corporation were to relocate here. It is common practice for corporations to conduct social media and internet searches when they are considering a move to a new community. Do these two Commissioners not realize that an online search for Surry County will resurface this attempt to censor free speech and the disparaging remarks made about one of the most successful US corporations? Should we not expect more from our officials than to be clones of the media conglomerates anger-filled rhetoric of the day? Give it another few weeks and the talking points and marching orders will be different, but you can be rest assured, those same elected officials will be touting the new line, word for word. We must demand our political leaders top priority be Surry County and the issues here on the ground, not mimicking, verbatim, whatever the national networks happen to rant about.

The government work most salient to our community is done at the local level. The network driven divide between the left and right has now leaked into the small-town communities within tranquil Surry County. We must wake up to the new reality that the hate-driven rhetoric, regurgitated upon us by weak-minded politicians who may actually believe they are destroying the enemy, is the problem. That enemy is a family member or friend down the street whose only sin may be that theyre willing to pay a little more in taxes to get more services. Are those friends and family part of a mob or are we being fed a line? The media tells us those to fear are those on the other side of the aisle, but lets start with taking a good look at the one on the other side of the mirror. If we can get that right, we can go back to spreading Gods love to our friends and family, and by extension, participate in the true freedom of America.

Continued here:
America the Great - Elkin Jonesville Tribune

The Burns Case

Recently, the Eleventh Circuit Court of Appeals decided Burns v. Town of Palm Beach, a novel case about whether the First Amendment protects the architectural expression of a really big beachfront house that cant be seen, located on a quiet residential street in Palm Beach, Florida.[1] While the Court held that the design of the proposed house is not an expression that is protected by the First Amendment, it did not rule out First Amendment protections for architecture.[2] In fact, it appears to have illuminated the path for the next Plaintiff who wants to use a buildings design to make a statement.

Burns wanted to demolish a traditional beachfront mansion and build a new one.[3] The new mansion was designed in the mid-century modern architectural style.[4] According to Burns, the style of the new mansion (even though it was more than double the size of his traditional mansion), would reflect his evolved philosophy of simplicity in lifestyle and living with an emphasis on fewer personal possessions.[5]

To build a new mansion in Palm Beach, the property owner must obtain approval from the Architectural Review Commission (ARCOM).[6] ARCOM is a seven-member commission of people who are specially qualified by training or experience in art, architecture, community planning, land development, real estate, landscape architecture, or other relevant business or profession, or by reason of civic interest and sound judgment to judge the effects of a proposed building upon the desirability, property values and development of surrounding areas.[7] At least two, but not more than three, ARCOM members must be Florida registered architects.[8]

ARCOM decides whether to approve a new building by applying 10 design review criteria to the buildings design.[9] Among these criteria are requirements that the building be in good taste, that it is in harmony with the proposed developments on land in the general area, that it is not excessively similar or excessively dissimilar compared to other buildings within 200 feet, and that it complies with Town code requirements insofar as the location and appearance of the buildings and structures are involved.[10]

ARCOM denied Burns application.[11] Burns sued the Town in federal court under 42 U.S.C. 1983.[12] He alleged (among other things) that the denial violated his First Amendment right to freedom of expression.[13]

Burns lost the case on summary judgment.[14] On appeal, in a two-to-one decision, the Eleventh Circuit Court of Appeals affirmed.[15] The Eleventh Circuit held that the design of Burns home did not constitute protected expression because the home was effectively hidden behind walls and dense landscape buffers. As such, even if Burns intended to convey a message (a point that the Town conceded), the Court concluded, A reasonable viewer would not infer some sort of message from Burnss new mansion because, quite simply, a viewer cant see it.[16]

Burns lost the case not because architecture is not protected expression, but instead because the Court concluded that Burns particular expression could not be seen.[17] Even though the decision was two-to-one, the Court was unanimous that architecture (even residential architecture) may in some cases be imbued with a sufficient communicative element to be protected by the First Amendment.[18] Consequently, First Amendment challenges to architectural review standards and related procedures are likely to increase in frequency as architects, their clients, and their lawyers work to figure out the contours of First Amendment protections for expressive architecture.

A Primer on First Amendment Protections for Expressive Conduct

The First Amendment provides in part, Congress shall make no law . . . abridging the freedom of speech . . . .[19] The free speech clause of the First Amendment is incorporated against the states (and local governments) by the 14th Amendment.[20] That means that, like the federal government, the authority of state and local governments to regulate speech and conduct is constrained by the First Amendment.

The importance of the free speech guarantee of the First Amendment cannot be overstated. The freedom of speech that is protected by the First Amendment is the matrix, the indispensable condition, of nearly every other form of freedom.[21] The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.[22] It is not hyperbole to suggest that the First Amendment is the essential legal foundation for American ingenuity and creativity.

The First Amendments free speech guarantee is not limited to written or spoken words. Its protections extend to a wide range of what courts call expressive conductthings like saluting a flag, refusing to salute a flag (or even burning a flag); organizing or participating in a parade; participating in a sit-in; picketing; playing music; and panhandling.[23]

In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, the U.S. Supreme Court has asked whether [a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.[24] That particularized message does not have to be a narrow, succinctly articulable message.[25] Indeed, the painting of Jackson Pollock, music of Arnold Schoenberg, [and] Jabberwocky verse of Lewis Carroll are unquestionably shielded by the First Amendment.[26]

Still, not all conduct is protected by the First Amendment. The Supreme Court has specifically rejected the view that an apparently limitless variety of conduct can be labeled speech whenever the person engaging in the conduct intends thereby to express an idea.[27] The Court has held that when speech and nonspeech elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.[28]

In other words, on the one hand, the government may regulate expressive conduct if the governmental interest is unrelated to the suppression of free expression.[29] On the other hand, if a law is directed at the communicative nature of conduct it must, like a law directed at speech itself, be justified by the substantial showing of need that the First Amendment requires.[30]

It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee.[31] It follows that [i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.[32] That is because the First Amendment reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs.[33] The Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.[34]

Architecture as Expressive Conduct

Architect Philip Johnson put it this way, Architecture is art, nothing else. Johnsons view is not that different from the view of founding father John Adamswho in 1780 wrote a letter to his wife in which he detailed that he must study politics and war, so that their sons may have liberty to study mathematics and philosophy. That study would provide foundation for a nation in which the arts would flourish. According to Adams, My sons ought to study mathematics and philosophy, geography, natural history, naval architecture, navigation, commerce and agriculture in order to give their children a right to study painting, poetry, music, architecture, statuary, tapestry and porcelain.[35]

Its fair to say that Philip Johnsons buildings are works of arteven if one does not like them. For example, Wells Fargo Plaza at 925 and 975 South Federal Highway, Boca Raton, Florida is an entirely unremarkable box when viewed from the West and North. However, from the South and East, one notices that the East side of 925 and the Southeast corner of 975 are strikingly deconstructed.

Rumor around town at the time the project was approved was thatby designthe buildings were intended to comply with the Citys then-applicable design standards to the absolute minimum extent possible to obtain required City approvals. The visual impacts of the project (which fronts on a regional arterial street) are significant. It is a radical departure from the architectural forms and styles that are present in its larger context.[36] One might say that Johnsons message in the design of Wells Fargo Plaza was critical of local government and its inability to write regulations that would actually protect the established (and then emerging) architectural character, quality, and vocabulary.

But the First Amendment does not only protect work that is biting or critical. Green building designs often combine environmental benefits with artistic components. It would be hard to argue that the Pixel Building, Australias first carbon-neutral office building (opened in 2010), is not a work of art. The Pixel Building features colorful panels that provide shade and maximize daylight as needed, supports that help process wastewater, a roof that captures rainwater, and a series of vertical wind turbines.[37]

The more modest design of the Bullitt Center, at 1501 East Madison Street, Seattle, Washington (opened in 2013) incorporates 575 solar panels, a circumstance that not only conveys an easily understood message about environmental sustainability, but also allows the building to generate more electricity than it consumes.

Closer to home, the architecture of the Denver International Airports Jeppesen Terminal includes peaked roof forms that rise up to 150 feet into the air, reflecting the snow-capped mountains in the distance that served as inspiration for the building. The airport is an iconic landmark. In 2020, the Colorado chapter of the American Institute of Architects selected the Jeppesen Terminal as the recipient of the 2020 Twenty-five Year Award. In accepting that award, Curtis Fentress said:

Our vision for DENs Passenger Terminal was to create a memorable design a gateway to Colorado and the West. Twenty-five years later, the design continues to transcend time and is known around the world.[38]

The expressive component of architecture is not something that is limited to a small group of unique buildings or designs by famous architects. It exists in less prominent projects and routine contexts as well. Consider:

If (unlike Mr. Burns proposed mansion) these buildings are visible to the public, then it would appear that there would be a great likelihood that viewers would understand that the building owner intends to convey a message through the buildings architecture. Because the message would reach the recipient, (who would in these examples understand that a message was intended), the architecture would be constitutionally protected expressive conduct. It follows that as a general matter, architectural design standards will tend to implicate the First Amendment.

Do Architectural Design Standards Violate the First Amendment?

Just because the First Amendment is implicated does not mean it is violated. Courts have held that community aesthetics are a substantial governmental interest.[39] As such, to promote that interest, the government may regulate expressive architecture using a variety of controls that affect building and structure design. However, the extent of that regulation is subject to constitutional limits.

If regulations are based on the content of the design (or otherwise cannot be justified without reference to the content of the design), then they are content-based.[40] Content-based regulations of free expression are subject to strict scrutiny review.[41] Strict scrutiny means that the government must prove that it is using narrowly tailored means to advance a compelling governmental interest.[42] No court has held that aesthetics are a compelling governmental interest.[43] As such, if a court finds that an aesthetic control is content-based, that control will be unlikely to survive judicial review.

If regulations are not based on the content of the design (and were not adopted based on the governments [agreement or] disagreement with the message), then they are content-neutral.[44] Content-neutral regulations face a somewhat lower bar in court. They are upheld if the regulations serve an an important or substantial governmental interest and the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest, and they leave open ample alternative channels of communication.[45]

The Burns court discussed this issue briefly in dicta.[46] It suggested that Palm Beachs ARCOM standards are not content-based because they do not distinguish favored from unfavored speech.[47] Since mid-century modern designs had been approved in other locations (at a success rate of 93.3 percent), the court reasoned that the Town did not disagree with the message of mid-century modern architecture.[48]

The dissent in Burns highlighted a simmering conflict in First Amendment law when it comes to government controls over expressive architecture. That is, if it is bedrock that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable, then how does the constitution allow government to impose aesthetic harmony by controlling the artistic expression of architects? According to the Burns dissent

The question in this case is whether a government commission created by the Town of Palm Beach with the Orwellian moniker ARCOM may prevent Burns from expressing his philosophy and taste through the architecture of his home and create a work of art on land he owns solely because a majority of the members of the Commission do not like the way it looks.

In my view, the First Amendment -- the most powerful commitment to think, speak, and express in the history of the world -- does not permit the government to impose its majoritarian aesthetic whims on Burns without a substantial reason. The First Amendments protection of the freedom of speech is not limited to the polite exchange of words or pamphlets. . . . It protects art, like architecture, and it protects artistic expression in a persons home as powerfully as in the public sphere, if not more so.[49]

Even if the architectural control is simply a general compatibility requirement regarding architectural style (as opposed to more specific design mandates), there is likely a content problem. For background, in a different context the Third Circuit Court of Appeals highlighted the First Amendments role in protecting individual thought and individual expression

the rights embodied in the Constitution, most particularly in the First Amendment, protect the minoritythose persons who march to their own drummers. It is they who need the protection afforded by the Constitution and it is the responsibility of federal judges to ensure that protection.[50]

It follows that if the First Amendment protects the individuals right to march to his, her, or their own drummers, then government imposition of aesthetic harmony by forcing property owners to march to the same drummer in terms of design may be constitutionally problematic. Implicitly recognizing this problem, the Burns dissent argued that the ARCOM standards are content-based (and therefore presumptively unconstitutional) because

. . . the permissibility of construction turns entirely on the content of its design and its architectural style. If Burns had submitted a plan for a Georgian, Regency, or Bermuda Style home -- the only styles currently found in his immediate neighborhood -- construction would have proceeded. In Palm Beach, an owners right to make full, enjoyable use of his own property turns on the extent to which his aesthetic views conform to those of the majority. This is the essence of content-based regulation.[51]

Implications for Local Government Architectural Design Controls

It is likely that more cases will follow Burns in order to identify the constitutional boundaries when it comes to design control. For local governments, it is advisable to review design-based regulations, examine their essential purposes, and consider whether and to what degree they actually advance those purposes. For property owners who face unworkable design controls, consider whether and how those controls impact the expressive component of the architecture. It is possible that relief from those controls may have a constitutional dimension.

Covenants, Leases, and Historic Preservation

The Architectural Design Controls discussed do not include architectural review by property owners associations or landlords, and also do not include design standards that are used to implement historic preservation programs. The First Amendment only restricts the power of government to regulate free speech. It does not affect the ability of private parties to enforce covenants and contracts. As such, a property owners association may enforce valid covenants that affect building and structure design.[52] Likewise, a landlord may enforce a lease contract that restricts the right of a tenant to make changes to a building or structure without prior landlord approval.

Historic preservation programs involve a more complex set of public interests. They also typically involve multiple, interrelated methods of implementation, which may include such things as voluntary participation, private agreements, tax credits, and incentives. This is not to say that the First Amendment is never implicated in historic preservation. Indeed, it might be. However, that is a different discussion.

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[1] Burns v. Town of Palm Beach, 99 F.3d 1317, 1349 (11th Cir. 2021).

[19] U.S. Const. Amend. 1

[20] See Gitlow v. New York, 268 U.S. 652 (1925).

[21] Curtis Pub. Co. v. Butts, 388 U.S. 130, 145 (1967) (quotation omitted).

[22] Ashcroft v. Free Speech Coalition, 535 U.S. 234, 253 (2002).

[23] See Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 569 (1995); Texas v. Johnson, 491 U.S. 397, 399, 404 (1989); Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989); McCraw v. City of Oklahoma City, 973 F.3d 1057, 1066 (10th Cir. 2020).

[24] Johnson, 491 U.S. at 404 (quoting Spence v. State of Washington, 418 U.S. 405, 410-11 (1974)).

[25] Hurley, 515 U.S. at 569.

[27] Johnson, 491 U.S. at 404 (quoting United States v. O'Brien, 391 U.S. 367, 376 (1968)).

[28] OBrien, 391 U.S. at 376.

[30] Johnson, 491 U.S. at 406 (quoting Community for Creative Non-Violence v. Watt, 703 F.2d 496, 622 (D.C. Cir. 1983) (Scalia, J., dissenting), revd sub nom., Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984)) (emphasis in original).

[31] Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367, 390 (1969).

[32] Johnson, 491 U.S. at 414.

[33] United States v. Stevens, 559 U.S. 460, 470 (2010).

[34] Id. The Court also noted, [t]he Constitution is not a document prescribing limits, and declaring that those limits may be passed at pleasure. Id., (quoting Marbury v. Madison, 5 U.S. 137, 178 (1803)).

[35] Letter from John Adams to Abigail Adams, post 12 May 1780 [electronic edition]. Adams Family Papers: An Electronic Archive. Massachusetts Historical Society. http://www.masshist.org/digitaladams/ (emphasis added).

[36] In the grand tradition of Spanish monikers for development in Southeast Florida, some of the authors co-workers at the time nicknamed the project el feo.

[39] See, e.g., City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 416 (1993).

[40] Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 163-64 (2015).

[43] In order to reach the question of whether Gilbert, Arizonas sign code was narrowly tailored, the Reed Court assumed for the sake of argument that aesthetics were a compelling interest. Reed, 576 U.S. at 171. However, the Court did not hold that they are a compelling interest.

[44] Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 642 (1994).

[45] Id. at 662 (quoting OBrien, 391 U.S. at 377); Ward, 491 U.S. at 798-803.

[46] Dicta is short for obiter dicta, which means other things said. In law, it refers to a judge's incidental expression of opinion, not essential to the decision and not establishing precedent.

[47] Burns, 999 F.2d at 1348.

[50] Circle Schools v. Pappert, 381 F.3d 172, 183 (3d Cir. 2004).

[52] Whether a special district (a special purpose government organized under Title 32, Colorado Revised Statutes) can enforce private covenants related to architectural design is a closer question.

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A Mostly-Hidden Beachfront Mansion Opens The Door For First Amendment Scrutiny Of Local Government Architectural Review Standards - JD Supra