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Executive Order on inquiry at colleges risks chilling more speech than it protects

A young man wears a 'Make Dartmouth Great Again' hat before President Donald Trump signs an executive order protecting freedom of speech on college campuses, at the White House in Washington, DC., 21 March 2019
A young man wears a 'Make Dartmouth Great Again' hat before President Donald Trump signs an executive order protecting freedom of speech on college campuses, at the White House in Washington, DC., 21 March 2019

Chip Somodevilla/Getty Images

This statement was originally published on pen.org on 21 March 2019.

In response to President Trump signing an Executive Order entitled "Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities" including terms that deal with free speech and inquiry on campus, PEN America released the statement below:

"PEN America has extensively documented and spoken out regarding our concerns about threats to free speech on campus, most recently this week in anticipation of this Executive Order being signed. In analyzing President Trump's Executive Order, we look not just at the formulation on the page, but at intent, context and potential effects. There is nothing wrong with the White House seeking to promote open debate on campus, or stressing that institutions that receive federal research funds comply with the law and promote freedom of thought. There are concrete steps the federal government could take, such as making funds available for campus education on the First Amendment, to advance these goals.

We have several serious concerns with the Order. The directive that federal agency heads, in coordination with the federal Office of Management and Budget, take "appropriate steps" to ensure that institutions receiving such funds "promote free inquiry" and comply with federal law and policy is vague and overbroad. Neither "appropriate steps" nor "free inquiry" are defined, opening the door to interpretations that could impinge upon academic freedom or insert the government into decisions that are properly made by faculty and university leadership. "Free inquiry" must not mean that discredited theories or pseudoscience need to be given a forum on campus.

All U.S. academic institutions are required to uphold the law, and oversight and enforcement mechanisms already exist to ensure such compliance. It is not clear that any additional steps would be appropriate for the federal government to guarantee that an individual university promote the White House's concept of "free inquiry." The idea that scientific research or educational grants could be tied to prevailing political winds is anathema to the academic enterprise.

We are concerned that this Order is intended as a shot across the bow, putting researchers, faculty, and university administrators on notice that speech will now be monitored by the federal government, and that research dollars could be in jeopardy. By making the linkage to research funds, the Order runs the risk of chilling more speech than it protects. Administrators and faculty members may feel the prying eyes of federal officials looking over their shoulders, such that every decision must be reexamined through the lens of whether it would pass muster with a White House that holds university research funds on the line.

We are also cognizant of the larger context in which this Order has been issued. The First Amendment protects all speech regardless of political party or ideological leanings. Yet this Administration has a pronounced pattern of using its muscle to protect certain viewpoints, while either encouraging or even exacting reprisals against speech it finds objectionable or critical. Whether it is in response to protesters at a campaign rally, NFL or college football players taking a knee on the field, or journalists asking tough questions, the Administration has resorted to taunts and intimidation in order to suppress the speech of those with whom it disagrees. The President has even crossed the line into threats and acts of retaliation against journalists whose news coverage he disapproves of, violating the First Amendment (see PEN America v Trump). The President's decision to announce this Executive Order at a meeting of the Conservative Political Action Committee underscores the concern that it represents an effort to put an ideological thumb on the scale of federal free speech protections.

If this Executive Order is used to enlist federal agencies in the quest to suppress speech with which the Administration disagrees, federal agency heads and college administrators must mightily resist, including by going to court if necessary. They should vigilantly guard against censorship, self-censorship or other decision-making that aims to appease a White House trying to drive an ideological agenda on university campuses. The President's invocation of the First Amendment in this Order must not obscure what may turn out to be an effort to flout it."

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