After the Trump administration froze $2.2 billion in federal funds to Harvard University, on claims its faculty and student body do not represent sufficient “viewpoint diversity,” Harvard has gone to court to challenge the Trump administration’s actions against it and the threatened retaliation against independent hospitals that partner with the university. These attacks go to core First Amendment protections. The courts should make quick work of the administration’s assault, and Harvard’s defiance should encourage other institutions to stand up as well.
Institutions that rely on the First Amendment to function — like universities and law firms — are taking one of two paths in the face of attacks by the Trump administration: appeasement or resistance. The appeasers hoped that the administration would back off and not exact ongoing concessions. That has not proved true for either Columbia University or the law firms that have capitulated to administration pressure. Appeasement is an inherently unsustainable strategy for institutions that rely so much on freedom of speech, because First Amendment protections are not supposed to depend on government largesse to exist.
History will vindicate those who stood up to such bullying by asserting the free-speech rights of themselves and others.
The Supreme Court has long held that universities enjoy special protection under the First Amendment, which preserves their academic freedom from government intrusion. During the McCarthy era, in Sweezy v. New Hampshire, the court’s majority wrote: “The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth.”
Later, in cases like Keyishian v. Board of Regents, the court found that the freedom against such intrusion is “a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom” because the “Nation’s future depends upon leaders trained” through exposure to the “robust exchange of ideas.”
Furthermore, the administration’s attacks threaten not just Harvard, but hospitals that partner with the university. They, too, may face cuts to their research funding, merely for their association with Harvard. As with the administration’s threats against clients of targeted law firms, these efforts to punish third parties for their association with Harvard constitute obvious violations of the freedom of association, also protected by the First Amendment.
Just last year, in National Rifle Association v. Vullo, a unanimous Supreme Court ruled that the efforts of government officials in New York to punish companies that did business with the NRA clearly violated the First Amendment, because those efforts appeared to be based on the NRA’s political stances. Unless the Supreme Court determines that only the free-speech rights of the NRA deserve protection, and not those of law firms and Harvard University, the court should find that the administration’s efforts are similarly unconstitutional. Over 80 years ago, in West Virginia State Board of Education v. Barnette, Supreme Court Justice Robert Jackson articulated what should be the central understanding of the First Amendment. “If there is any fixed star in our constitutional constellation,” he wrote, “it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” The Trump administration’s far-reaching and punitive efforts, designed to dictate orthodoxy at our nation’s universities, should not withstand legal challenge under the First Amendment. History will vindicate those who stood up to such bullying by asserting the free-speech rights of themselves and others.
Ray Brescia
Ray Brescia is a professor of law at Albany Law School and author of the book “The Private Is Political: Identity and Democracy in the Age of Surveillance Capitalism.” 
