DOUGLAS V. GIBBS             RADIO             BOOKS             CONSTITUTION             CONTACT/FOLLOW             DONATE

Friday, May 05, 2017

California Assemblywoman Proposes Free Speech Protections Legislation

By Douglas V. Gibbs
AuthorSpeakerInstructorRadio Host

Assemblywoman Melissa Melendez is one of the few Republicans of the California legislature, and what is going on at state-funded college campuses has frustrated her.  So, she has a proposed a bill that would tackle the issue of free speech on college campuses.

Melendez's "Campus Free Speech Act" would amend the California Constitution to make it illegal for individual college campuses to institute policies that hamstring free speech activity based on political views or anything else.

Specifically, the act would:

• Create a uniform policy, applicable to all state-funded campuses, "affirming the importance of freedom of expression" and "nullifying any existing restrictive speech codes".

• Prevent administrators from disallowing speakers, regardless of the controversial nature of their subject.
• Establish disciplinary sanctions for students, or anyone else, who "interferes with the free speech right of others".

• Declare that universities should adhere to a general position of neutrality on issues "to encourage the widest possible range of opinion and dialogue within the university itself".

• Make it a practice to underscore that policy so students know it in advance.

• Set up subcommittees tasked with monitoring speech activity and reporting annually to the governor and Legislature on happenings at each campus to address concerns.

"Recently, we've seen a trend on California's college campuses of stifling free speech," Melendez said. "The fact that college administrators have done nothing to ensure all of their students' liberties are protected is shameful and un-American."

One of my readers, and radio listener, asked about Melendez's proposed legislation.

I have mixed feelings about this...Constitutionally speaking.  Is she "regulating" the First Amendment???


The First Amendment applies to the federal government, not local government.  It begins with the words, "Congress shall make no law."

Speech is a State issue, and Melendez is acting perfectly in a constitutional manner regarding her legislative offering. That said, let's examine the constitutional structure of our freedom of speech more carefully.

The federal government in the First Amendment is expressly forbidden from making any laws infringing upon the freedom of speech. All federal laws regarding speech are unconstitutional.  The First Amendment does not address the States, and the incorporation of the Bill of Rights to the States is a misinterpretation of the Fourteenth Amendment, as originally intended by Congress, and the States' ratification debates.  Locally, when one looks at original intent of the U.S. Constitution, we can legally institute such laws if we believe they are necessary to protect the security of our local communities, and improve the internal order of our States.

James Madison (The Father of the Constitution) wrote in Federalist #45:
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. 
The Powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.  The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States.
It is our job as citizens to defend our right of freedom of speech.  At the State level, our representatives can make laws regarding that right. However, since our freedom of speech is a natural right, despite being allowed to make laws adjusting the provisions of that right, no lawmaker, even at the State level, can infringe upon that right in a manner that violates natural law (which would include total infringement).

That all said, I have never been fond of laws forcing privately owned businesses, or institutions, to follow certain parameters.  Granted, Melendez's proposal is for state-funded institutions, but it usually doesn't take long for one to bleed over into the other.

I am a firm believer in "the right to refuse service to anyone," even if that action is unacceptable to many members of society, obviously stupid, or discriminatory. Reality is, we also have the freedom to be idiots. If a business or institution acts in a manner offensive to the local culture, more often than not, the public will respond, and choose not to use that institution or business.  Such boycotts often lead to the financial demise of such places.

If we allow government to determine what is acceptable, and what is not acceptable, we then have christened government to be the definers of our rights, and according to the Declaration of Independence, our rights are "self-evident," and "endowed" to us "by our Creator."  Therefore, any definition of a right would have to be a natural definition, not a governmental one.

Ultimately, regardless of legislation, we have to be willing to defend our rights. We can't just say that because it was written on a piece of paper somewhere that the government can't touch our rights.  We also have to recognize that sometimes just because something is legal, it doesn't make it moral, or the right thing to do.  Hitler acted legally, according to German law, in everything he did, after all.

Government acts as it will, despite what a piece of paper says, so in the end, the Constitution is only ink and paper if we don't defend its principles.  The laws we put on the books must be either defended, or repealed, by concerned citizens who are willing to put up a fight.  Government does not change for the good without citizen advocacy.

As for my opinion of Melissa Melendez's proposed legislation regarding freedom of speech, while I congratulate her intentions, one must be constantly wary of all possible consequences, good or bad. At what point would her law be twisted, and used against religious institutions who don't receive public funding?  How long before non-religious activists demand their own free speech laws, and demand their free speech of homosexuality (among others) on private Christian campus?  While Melendez's proposal is wholly constitutional, it must be written in such a way that it can navigate through all of the tripwires and booby traps the liberal left loves to place in our paths.

-- Political Pistachio Conservative News and Commentary

No comments: