Opinion

Biden, Harris Ticket Puts First Amendment at Risk

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Posted: Sep 02, 2020 12:01 AM
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Biden, Harris Ticket Puts First Amendment at Risk

Source: AP Photo/Carolyn Kaster

With the Democratic ticket set and the platform ossified, many students and parents may wonder how a Biden-Harris administration would address campus issues. It’s a fair question, particularly given the abrupt policy shifts from Bush to Obama to Trump over the past 20 years.

Unfortunately, the Democrat candidates haven’t said much on the record about their views on higher education beyond “free college for all.” That being said, it’s instructive to look at some of the candidates’ statements about issues in the free speech realm to see how they might address some of these topics going forward.

Just this week, Biden told a crowd in Pittsburgh, “Rioting is not protesting. Looting is not protesting. Setting fires is not protesting. None of this is protesting.” Certainly, that’s a reassuring statement (and sadly, one that hasn’t been voiced enough by prominent politicians these days).

In 2017, Joe Biden spoke to a group of students at the University of Delaware asserting, “The First Amendment is one of the defining features of who we are in the Bill of Rights. And to shut it down in the name of what is appropriate is simply wrong. It's wrong.” He went on to note “If your idea is big enough, it should be able to compete and you should be able to listen to another point of view, as virulent as it may be, and reject it, expose it. The best thing to do is let this stuff be exposed.” And in a 2018 address in Las Vegas, Biden condemned “unrelenting attack on civil rights, civil liberties, a free press and an independent court system.”

Without a doubt, these are encouraging; from 30,000 feet, Biden seems to be a conventional liberal on social and economic issues, but generally committed to the set of civil liberties that have traditionally appealed to Democrats.

Yet it might be worth considering how strong candidate Biden’s positions on speech actually are, because it’s possible that the company he keeps (and the party’s leftward drift) could end up superseding his moderate stance.

For example, in July, Biden’s campaign accused Tucker Carlson of “traffic[king] in hate speech masquerading as journalism” – the accusation of “hate speech” now being one of the trendy slurs used to shame and silence a dissenting point of view.

But perhaps most concerning is Biden’s pledge to put a “quick end” to the Department of Education’s new Title IX rules, promising to return to previous guidance issued under the Obama-era Department of Education – guidance which specifically encouraged schools to violate students’ First Amendment rights.  This regression would reinstate “verbal” conduct in its definition of sexual harassment – specifically listing transgressions such as “making sexual comments, jokes, or gestures; writing graffiti...calling students sexually charged names; spreading sexual rumors...or circulating, showing, or creating e- mails or Web sites of a sexual nature.”

Let that sink in: the Obama-Biden Administration explicitly urged schools to infringe upon students’ free speech rights – and returning to those rules is a top priority for Joe Biden! 

Unfortunately, Kamala Harris’ record on speech-related issues might be even worse.

Last year, Harris demanded that Twitter suspend President Donald Trump’s account and introduced a resolution in the Senate that linked “anti-Asian terminology and rhetoric related to COVID–19, such as the ‘Chinese Virus’, ‘Wuhan Virus’, and ‘Kung-flu’” with the perpetuation of anti-Asian stigma, hate crimes, and discrimination.  And she heckled a judicial nominee for holding “extreme” religious beliefs because he was a member of...the Knights of Columbus.

But perhaps more frighteningly, Harris has shown that she’s comfortable using the levers of power to intimidate and silence her political opponents. While serving as the California Attorney General, Harris authorized a raid on pro-life journalist David Daleiden’s apartment, in a move that was decried by many as a conflict of interest given her vocal support for Planned Parenthood. She arrested the CEO of Backpage.com on pimping charges – a case that was later thrown out because of Section 230’s legal protections. Harris led the national charge to demand that non-profit groups that solicit funds in California provide her office with confidential donor lists (found on IRS Form 990 Schedule B) – information that, despite promises of confidentiality, had been made public and was in turn used to target and harass donors. And she investigated (but didn’t sue) Exxon over statements the company made on climate change.

These anecdotes reveal how the Biden-Harris ticket has viewed (and in some cases, abused) the protections built into the First Amendment. The “five freedoms” – freedom of religion, freedom of speech, freedom of the press, the freedom to peaceably assemble, and the freedom to petition the government – aren’t partisan. Sadly, it seems like these days, defending them might be.

Nicole Neily is the president and founder of Speech First, a nationwide membership association that defends students' First Amendment rights.