Attorney General Merrick B. Garland Delivers Remarks at the U.S. Attorney’s Office for the Southern District of New York
Remarks as prepared for delivery
Thank you, John for that generous introduction and thank you for your leadership over the Civil Rights Division.
Thank you also to Jesse for his remarks and all of our panelists—especially the fabulous Heather Mac Donald, who I think provides some of the best insight on criminal justice issues in America today. And Nadine Strossen, the always principled and challenging former president of the ACLU, our keynote speaker.
I’m looking forward to this afternoon’s conversation between Deputy Attorney General Rosenstein and my good friend and our former Secretary of Education, Senator Lamar Alexander. Among other things, Lamar was a law clerk to Judge John Minor Wisdom and served as president of the University of Tennessee. Rod has 28 years of experience in this department, and is a Wharton and Harvard Law graduate. This should be an insightful discussion.
I want to start by wishing everyone here a happy Constitution Day.
And there is a lot to celebrate.
Before we begin, I ask you to indulge me in some thoughts.
We have the oldest written Constitution still in use— 231 years. This brilliant document has stood the test of time. It has produced the most durable government because it is based on the Founders’ deep understanding of human nature, power, and law. This understanding did not arise out of thin air, but was the product of centuries of thought development.
The Founders sought to create a government that made good decisions which they believed could only arise if founded on truth.
The First Amendment guaranteed freedom of religion, speech, assembly, petition and press. These weren’t just words but fiercely held views that in many ways encapsulated the developing thought of the time, and arose from some very real grievances.
So, the Founders protected the liberty of Americans to express themselves. It was a core value of the new Republic.
They believed that from competing ideas, good ideas would dominate the false. Congress allowed prolonged debate and protected members from libel laws. And jury trials allowed witnesses and cross examination. The goal was for objective jurors to find the facts and render true verdicts.
This passion for justice has been a part of American life from the beginning. But, we acknowledge that the principle has suffered at times.
From the Alien and Sedition Acts, to slavery and segregation, to religious and non-religious oppression, there have been pendulum swings that threatened these freedoms. Madison was clear. Freedom of speech, he said, is “the only effectual guardian of every other right.”
But, each time free expression has been curtailed, the founding principles have recovered.
Today, freedom of speech and thought have come most under attack on the college campus. That should shock us.
The words of the founder of the University of Virginia, as chiseled in his nearby monument, declare: “For I have sworn upon the altar of God, eternal hostility against every form of tyranny over the mind of man.”
This was the vibrant spirit of our Founders. May we not depart from it.
But, many are departing from these principles. Or, most perhaps most dangerously, they have abandoned principle and truth altogether.
If that is so, then they have chosen politics, ideology, passion and power over principle and over law. When one exalts ideology and power, then the suppression of opposing voices can be justified. But this is not America. And ideology and power politics are not law. They are the very opposite of law.
As Americans, we know that it’s far better to have a messy and contentious debate than to suppress the voices of dissenters – even though on occasion we forget these values.
Make no mistake. This Department of Justice is concerned about the suppression of speech that is now occurring.
Defending the Constitution, defending civil rights, doing justice, compels this Department of Justice to defend the right to speech, expression, religion, press, petition and assembly. And defend these rights we will.
And, the most important time to defend a valued right is when it is being attacked or eroded.
Last year, the Foundation for Individual Rights in Education surveyed 450 colleges and universities and found that 40 percent maintain speech codes that substantially infringe on constitutionally protected speech. Of the public colleges surveyed—which are legally bound by the First Amendment—fully one-third had written policies banning disfavored speech.
I’d like to briefly discuss a few examples.
The University of California Berkeley—the home of the 1960s free speech movement—allegedly applied a stricter set of rules for inviting public speakers to conservative student organizations than for other campus groups.
A group of students filed suit contending that the school effectively discriminated against them and their right to speak.
The Department got involved and we filed a statement of interest in this case.
Last March, a student filed suit against Pierce College in Los Angeles, alleging that the college prohibited him from distributing copies of the Constitution outside of the designated “free speech zone.”
How big was this free speech zone? 616 square feet—barely the size of a couple of dorm rooms. Outside of that space, students did not have freedom of speech.
The student sued and we filed a statement of interest on his behalf.
Georgia’s Gwinnett College allegedly limited free speech to just 0.0015 percent of campus. Even within that tiny area, students had to get permission from campus officials in advance; they could only use the free speech zone at a specific time, and they could not say things that might “disturb the…comfort of person(s).” In other words, free speech at Gwinnett was a very limited privilege—not a right—even inside the free speech zone.
If disturbing someone’s comfort is the standard for banning speech, then anybody can stop anybody else from speaking their mind merely by acting offended. This is nowhere close to a legitimate First Amendment standard.
Every great political leader in this country has “disturbed the comfort of persons.” Abraham Lincoln disturbed the comfort of slave owners. Dr. Martin Luther King disturbed the comfort of segregationists. Susan B. Anthony disturbed the comfort of quite a number of people. Change has never been effected without disturbing the comfort of persons—and likely never will.
And so the Department of Justice filed a statement of interest in this case, as well.
In each of the cases I’ve mentioned, the courts have agreed with us. Attempts to dismiss two of these cases I’ve mentioned have been denied by judges who have adopted the Justice Department’s positions. A third was dismissed only because the college changed its speech policy, rendering the case moot.
At the end of May, we also filed a statement of interest in a lawsuit against the University of Michigan.
The University sought to forbid “harassment” and “bullying,” and actions motivated by “bias.” They also forbade speech that is interpreted to be “demeaning,” “bothersome,” or “hurtful.” But the rules did not give clear definitions about what any of these terms mean.
These rules, it seems, are enforced by a group of campus bureaucrats and campus police with the Orwellian name of the Bias Response Team, or BRT.
Students are encouraged to report their complaints to the BRT, which presumably then investigates to see if the speech was “bothersome” to them. In the last school year, the BRT logged more than 150 cases.
Later the same day*, I am pleased to say, the University changed several of its speech policies. This is a positive step, and I want to commend the University for making that change. I am pleased to have the General Counsel of Michigan here with us today.
Make no mistake. The issues you will be discussing today involve protected, core liberties, possessed by all Americans. Those protections provided by our Constitution are of inestimable value.
No third-level bureaucrat, committee, or top official, at any university, has the power to take them away.
This has gone too far. It must end. This country protects noisome assembly, immoderate speech and provocative speech. Whether left or right. Suppression of competing voices is not the American way.
We have reached a pivotal, perhaps even an historic, moment. It is time to stand up to the bullies on campus and in our culture.
There are radicals out there now that have openly and systematically justified actions that would deny Americans the right to speak out against their ideological agenda. We must put an end to this nonsense. It is time to put a stake in its heart.
We have to stand up to it. And we will do so—resolutely.
We are going to keep fighting for the great freedoms vouchsafed to the American people.
And we will endeavor to do so according to the highest constitutional standards. And we plan to keep winning.
*A previous version of the speech that included “within days” has been changed to more accurately reflect the timing.