[Congressional Record Volume 168, Number 186 (Thursday, December 1, 2022)]
[Senate]
[Pages S6920-S6922]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                             The Judiciary

  Mr. McCONNELL. Madam President, it has been one of the big, 
unfortunate ironies of the past several years: Many of the same 
individuals and institutions on the political left that have spent the 
years 2017 through 2020 yelling about the importance of norms and 
institutions have themselves not hesitated to undermine our 
institutions when they are unhappy with a given outcome.
  Just as an example, the newly elected incoming leader of the House 
Democrats is a past election denier who baselessly said the 2016 
election was ``illegitimate'' and suggested that we had a ``fake'' 
President. He has also mounted reckless attacks on our independent 
judiciary and said that Justices he didn't like have ``zero 
legitimacy.''
  Unfortunately, when it comes to attacking our independent judiciary, 
the Democrats' new leader isn't an outlier; he is a representative 
sample. In the last few years, we have seen my counterpart, the Senate 
Democratic leader, threaten sitting Justices by name over on the 
Supreme Court steps; we have seen President Biden and Attorney General 
Garland refuse to enforce Federal law and put a stop to illegal 
harassment campaigns at the homes of Justices; and we have seen 
coordinated efforts by Democrats and the media to use smear campaigns 
to personally punish Justices whose legal reasoning they don't like.
  The latest target has been Justice Alito, whose great offense was 
overruling a deeply flawed precedent that prominent liberal legal 
scholars, including even the late Justice Ginsburg herself, long 
acknowledged was badly written and poorly reasoned.
  I am confident the smear campaigns and baseless fishing expeditions 
will keep groping around, and I am just as confident that Justices 
Alito, Thomas, and the entire Court will continue to ignore the noise 
and the smears and practice judicial independence.
  We also see growing evidence that the attacks on members of the legal 
profession who dare to upset the activist left are actually not limited 
to judges and other public officials. Private citizens are not safe. 
Earlier this week, a longtime female partner at a major law firm 
explained in an op-ed how she was forced out of the firm after she 
dared--dared--to enter into a ``safe space for women'' and share her 
own personal views on the Dobbs ruling. As she tells it, simply being a 
woman who agreed with the five-Justice majority of the Supreme Court 
was a fireable offense. Some of her colleagues claimed that merely 
hearing her express a dissenting view caused them to ``[lose] their 
ability to breathe.''
  This past summer, two wildly successful appellate litigators, 
including a former U.S. Solicitor General, were

[[Page S6921]]

drummed out of another prominent firm because they won a Supreme Court 
victory for the Second Amendment. In their telling, they were basically 
told to either abandon their pro-Second Amendment clients or hand in 
their badges.
  Meanwhile, intellectual freedom and the competition of ideas have 
also been slipping away in the legal academy. Multiple circuit judges 
are so disturbed by the anti-free speech trends in elite law schools 
that they are starting to decline to hire clerks from otherwise 
prestigious schools that are hostile to nonliberal views.
  Just last night, two such judges participated in a Yale Law School 
panel titled--listen to this--``Is Free Speech Dead on Campus?'' ``Is 
Free Speech Dead on Campus?''
  And of course, the left's rapidly growing appetite for censorship is 
not limited to the legal realm. Earlier this week, in a truly bizarre 
and disturbing moment, the White House Press Secretary said the Biden 
administration is--listen to this--``keeping an eye on'' the social 
media company Twitter, which was recently purchased by an owner who 
doesn't happen to be a liberal.
  The antidote to all this toxic nonsense is renewed appreciation for 
the deeply American principle of free speech and open debate. No one in 
my lifetime has understood the importance of free speech and the 
competition of ideas better than the recently departed Judge Laurence 
Silberman. Larry was a legal genius and a patriot, whose rich and 
varied career culminated on the DC Circuit, where many came to view him 
as the single most important jurist in American history who never sat 
on the Supreme Court.
  The last major address Judge Silberman gave before his death was a 
powerful and important speech on free speech, which he delivered at 
Dartmouth in September. He explained how un-American and dangerous it 
is to enter an era where ``some political speech is attacked as if it 
were blasphemy drawn from the colonial period when witches were burned 
at the stake.''
  I will have more to say on this subject soon. But for now, I ask 
unanimous consent to have printed in the Record the published text of 
Judge Silberman's final speech, in full, at the conclusion of my 
remarks.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

              [From Dartmouth University, Sept. 20, 2022]

           Free Speech Is the Most Fundamental American Value

                       (By Laurence H. Silberman)

       This is a Constitution Day talk. So I will address one of 
     today's most contentious constitutional subjects--the First 
     Amendment's protection of free speech. As I noted in a recent 
     opinion, the First Amendment's guarantee of free speech is 
     not just a legal doctrine. It represents the most fundamental 
     value in American democracy. A national commitment to 
     uninhibited political speech is a crucial aspect of our 
     country's culture. It is the penumbra around the First 
     Amendment, which, by itself, only prohibits government 
     control of speech. Unless all American institutions are 
     committed to free political speech, I fear the strain on the 
     First Amendment's guarantees will become unbearable.
       Those seeking to suppress free speech sometimes think that 
     provocative, even extreme and obnoxious, political speech is 
     dangerously divisive. It should be suppressed. I think that 
     is profoundly wrong. I think it is the very opposite. 
     Toleration of all versions of political speech is the crucial 
     unifying factor in our country.
       Some years ago, I was ambassador to Yugoslavia, a communist 
     country where freedom of political speech did not exist. I 
     had a small fund with which I could send promising young 
     intellectuals to the United States in the summer. Yugoslavia, 
     then a country of six separate ethnicities, was threatened by 
     centrifugal ethnic forces (which ultimately resulted in six 
     separate nationalities). The government sought to squelch 
     talk that threatened Yugoslav unity.
       One intellectual that I sent to the United States came back 
     and expressed wonderment that our country--composed as it is 
     of the descendants of an enormous number of nationalities--
     could nevertheless enjoy such a uniform commitment to shared 
     values. I explained that we swore allegiance not to a 
     sovereign nor a blood grouping, but rather to a legal 
     document--the Constitution. And nothing in that legal 
     document was more important than the First Amendment. 
     Protection of the speech of fellow Americans, even the most 
     provocative and unpleasant, reflects a fundamental tolerance 
     for all Americans.
       I was often obliged to explain the First Amendment to the 
     Yugoslavs who demanded that I restrain the New York Times's 
     criticism of their government. Their eyes would glaze over 
     during my First Amendment lectures; they didn't believe me 
     until I pointed out that if our government could influence 
     the New York Times a Republican administration would have 
     every incentive to do so. That finally got across. 
     Interestingly, even allied democratic governments that 
     generally--but only generally--supported free speech were 
     mystified by the strength of our First Amendment.
       To be sure, I recently wrote an opinion seeking the 
     overturning of New York Times v. Sullivan, a case that 
     benefits the press. That case, by constitutionalizing 
     American libel law, made it nearly impossible to sue media 
     for certain inaccurate personal attacks on public figures. 
     Some have suggested my position reflects less than vigorous 
     support for the First Amendment. On the contrary, I oppose 
     New York Times v. Sullivan because it was wholly illegitimate 
     policy making by the Supreme Court.
       A guarantee of free press does not mean special 
     immunization from accountability when the press libels a 
     person. A free press is not necessarily an all-powerful 
     press. The Supreme Court in Sullivan was concerned, 
     legitimately, about problems created by excessive libel 
     actions against newspapers supporting the struggle for civil 
     rights, but that could have been handled with legislation. It 
     was illegitimate for the Supreme Court to literally make up 
     constitutional law to deal with the problem. Its decision was 
     contrary to text and history, and it created new problems for 
     society in the form of media that can spread false rumors and 
     sling unfounded accusations directed at public figures 
     without consequence.
       The history of the First Amendment is fascinating. The 
     phrase ``freedom of speech'' first appeared in the Anglo-
     American tradition in the English Bill of Rights written in 
     1689. It only protected the expression of members of 
     Parliament. This was so because, in the English tradition, 
     Parliament, not the general population, was the source of 
     sovereignty. Our Founders extended that right to all 
     citizens, because here the people rule as sovereign.
       As many of you know, the First Amendment was drafted by one 
     of the most extraordinary of our original political leaders--
     James Madison. His primary focus was freedom of the press, 
     which was included in the constitutions of virtually all the 
     colonies; whereas the phrase ``freedom of speech'' only 
     existed in one of those. But if one thinks about it, which 
     clearly Madison did, freedom of speech was a necessary 
     corollary of freedom of the press. It followed apodictically, 
     if you protect words that appear in the press, you couldn't 
     suppress those words uttered verbally.
       There are virtually no cases in the first half of the 19th 
     century involving the First Amendment's freedom of speech. As 
     you might know, the First Amendment did not apply to the 
     states until after the Civil War, when the 14th amendment's 
     Due Process Clause was seen to incorporate the First 
     Amendment.
       The first case that I could find considering the First 
     Amendment's free speech clause as applied to the states was 
     Patterson v. Colorado in 1907. It included a dissent by one 
     of our greatest justices, John Marshall Harlan. He was the 
     man who dissented in Plessy v. Ferguson from the odious view 
     that racial segregation, although separate could nevertheless 
     be equal.
       Patterson involved a state judge who held a litigant in 
     contempt for criticizing the judge's opinion. The majority 
     upheld the contempt finding. Harlan disagreed. He said: ``I 
     cannot assent to that view if it be meant that the 
     legislature may impair or abridge the rights of a free press 
     and of free speech whenever it thinks that the public welfare 
     requires that to be done. The public welfare cannot override 
     constitutional privileges.'' He concluded that ``the 
     privileges of free speech and of a free press--belonging to 
     every citizen of the United States--constitute essential 
     parts of every man's liberty.''
       Not surprisingly, the constitutional protection of free 
     speech from government action has been most strained when we 
     faced national security threats. First were the notorious 
     Alien and Sedition acts growing out of the three-corner 
     tension between the United States, Great Britain, and France. 
     But the statutes were abandoned before the Supreme Court had 
     an opportunity to rule on them.
       Perhaps most astonishing is the degree of Lincoln's 
     tolerance of free speech even during the bloody Civil War. He 
     did strain the First Amendment on occasion, but given the 
     threat to the nation, it is amazing how tolerant Lincoln was 
     of fierce criticism. For instance, he announced that the 
     arrest of Vallandingham, a southern sympathizer, was wrong if 
     that arrest was based purely on Vallandingham's criticism of 
     Lincoln. In instructions to his general in dealing with 
     Northern civilians aiding Confederate guerrillas, Lincoln 
     explicitly directed Gen. Ewing to only arrest individuals or 
     suppress assemblies or newspapers if they were working 
     ``palpable injury to the Military'' and that ``in no other 
     case will you interfere with the expression of opinion in any 
     form.''
       Then, we have the 20th century's wartime pressures on the 
     First Amendment. Some of the most celebrated First Amendment 
     opinions, Abrams, Gitlow, Whitney were the result of 
     challenges to laws passed to suppress wartime protests. 
     Perhaps the most problematic was the McCarthy era, which my 
     class

[[Page S6922]]

     of 1957 experienced at the time we entered Dartmouth. The 
     notorious senator from Wisconsin was able to intimidate 
     politicians, academics and Hollywood writers in his wide-
     ranging and, in many cases, wholly unjustified pursuit of 
     alleged communist sympathizers.
       Turning to the present, I am convinced we are faced today 
     with a worse threat to free speech than during that earlier 
     time. Indeed, now some political speech is attacked as if it 
     were blasphemy drawn from the colonial period when witches 
     were burned at the stake. Threats against political speakers 
     are not simply levied by unscrupulous politicians, they come 
     also from young people influenced by academics--ironically 
     the prime targets of the McCarthy era. Certain controversial 
     subjects are placed out of bounds.
       I am shocked at the recent challenges to free speech in our 
     academic institutions--particularly the Ivy League. For 
     example, recently at Yale Law School, students attempted to 
     stop, then drown out, a public dialogue between a 
     conservative and a liberal lawyer. They were both supporting 
     untrammeled political speech. The administration's response 
     was to vaguely gesture at the importance of free speech but 
     also to celebrate ``respect and inclusion''--whatever that 
     means. The dean sent a letter calling the behavior 
     ``unacceptable,'' but she did not so much as issue a slap on 
     the wrist to the students who were hostile to free speech.
       And at Princeton, Prof. Joshua Katz was stripped of his 
     tenure and fired after challenging the university's orthodox 
     view on race. He was terminated ostensibly based on the 
     disputed details of a consensual relationship he had with a 
     student 15 years ago--for which he had already been 
     disciplined. This was only after he criticized a Princeton 
     faculty letter that demanded preferential treatment both for 
     minority faculty and a black student organization. Does 
     anyone believe that Katz would have been fired if instead he 
     gave a speech in support of a black student organization?
       Similarly, at Harvard, Prof. Roland Fryer, one of the most 
     gifted economists in the country--who happens to be black--
     has been suspended for two years for allegations that he made 
     inappropriate comments. His supposed crime was telling 
     raunchy jokes. But Fryer's real crime was his work 
     empirically demonstrating that police do not kill blacks at a 
     higher rate than other races, and that black students excel 
     when faced with high expectations--challenges to the current 
     shibboleths on race.
       Amy Wax, professor at Penn Law School, was recently 
     punished because she unwisely--indeed somewhat cruelly--
     described her experience over many years regarding black 
     student performance in her class. She therefore touched on 
     the mismatch theory popularized by Richard Sander and Stuart 
     Taylor. They wrote a book by that name and have filed an 
     amicus brief in the Harvard case before the Supreme Court.
       They contend that in an effort to achieve soft quotas, 
     elite schools artificially admit less qualified minorities 
     thereby injuring the very students supposedly benefitted. In 
     other words, in a less competitive school those students 
     might do much better. I emphasize that, as a judge, I take no 
     position on the mismatch theory. But I predict you will see 
     reference to it in the forthcoming Supreme Court opinion.
       To be sure, it is unseemly for any serving professor to 
     suggest that minority students are less qualified. (That 
     proposition is more readily expressed openly by emeritus 
     professors no longer teaching, like Alan Dershowitz at 
     Harvard Law School and Stanley Goldfarb at Penn Medical 
     School.) In furtherance of Amy Wax's tendency to offend 
     minority groups, she recently attacked Asian-Americans in the 
     most unflattering terms. I gagged when I read her remarks, 
     but free speech is free speech.
       Even Dartmouth, to my distress, has engaged in smothering 
     provocative speech. In January, the college cancelled an 
     event with Andy Ngo, a controversial conservative journalist. 
     His speech was forced online based on unspecified information 
     from the Hanover Police Department. Apparently, Dartmouth has 
     been evasive about the ``credible threats'' it received. It 
     has provided shifting rationales for its decision.
       The College Republicans have also been charged $3,600 for 
     an event which did not actually take place. Indeed, I think 
     it is inappropriate for the college to ever charge 
     organizations for the protection their speech requires. That 
     policy simply accentuates the power of those who would 
     discourage free speech.
       If the Dartmouth administration had the backbone to 
     discipline students who shouted down speakers or to arrest 
     nonstudents for disrupting events, the deterrent effect would 
     obviate the need for imposing security expenses.
       Regardless of the situation, the college aligned itself 
     with those who wish to silence speech by cancelling the 
     event. It should be recalled that, in Terminiello, the 
     Supreme Court squarely rejected the so-called heckler's-veto 
     rationale for suppressing speech. The court held that speech 
     cannot be punished merely because it could cause unrest 
     amongst potential listeners.
       A common thread of these incidents at Yale, Princeton, 
     Harvard, U Penn and Dartmouth is that university authorities, 
     in discouraging unfashionable speech, do not do so 
     explicitly. Rather, they perform an ``Ivy League Two Step.'' 
     First, they pay lip service towards the value of free speech. 
     Then they use alternative reasons as a pretext to shut down 
     ``objectionable'' speech. That, in some ways, is more 
     dangerous than a frontal attack.
       Even assuming that there are some circumstances in which 
     speech can be legitimately restrained, we have seen that 
     schools have been inclined to dissemble in their 
     justifications for suppressing speech.
       It is for that reason, when universities take action to 
     limit free speech, they have a solemn responsibility to be 
     absolutely honest and transparent in why they are doing so--
     they must, as Oliver Wendell Holmes said, ``turn square 
     corners'' when demanding such accommodations. So far, our Ivy 
     League schools have demonstrated a pattern of suppression 
     that should upset all friends of freedom of speech.
       I hope that Dartmouth's new president, Sian Leah Beilock, 
     will have the steel in her spine that is needed to take this 
     responsibility seriously and stand up for free speech when it 
     becomes difficult. Her recent statements are encouraging. But 
     when the chips are down, many university presidents have 
     folded.
       Admittedly, one of the most serious questions the country 
     faces is how to achieve racial equality. Does it mean equal 
     opportunity or equal results? Is progress for African-
     Americans, for instance, held back because of residual racism 
     or because of other aspects of the black experience? Views 
     about achieving racial equality that are uttered in good 
     faith are repressed--even shut down as ``racist''--if they 
     vary from certain orthodoxies.
       As a result, the charge of ``racism,'' not unlike 
     McCarthy's frequent cry of ``communism,'' has been drained of 
     much of its meaning. Similarly, debates over issues relating 
     to sex education and sexual identity--issues about which many 
     hold sharply divergent views, sometimes based on religious 
     differences--are ruled unacceptable.
       Those repressive forces come from the left side of our 
     political spectrum, but I can think of examples coming from 
     the opposite political pole. For instance, although it is 
     certainly reasonable for parents to argue about the 
     curriculum of public schools, it is intolerant to seek to ban 
     library books on critical race theory, at least at the high 
     school level.
       By the same token, efforts to prevent persons such as Linda 
     Sarsour from speaking on college campuses in support of BDS 
     (boycott, divestment and sanctions) directed against Israel 
     are equally intolerant. As a onetime special envoy in the 
     Middle East I regard BDS and Sarsour's views as particularly 
     obnoxious, but I deplore the effort of Jewish groups to 
     prevent her from speaking at universities.
       My class at Dartmouth entered in the fall of 1953. The 
     previous spring Dwight D. Eisenhower spoke at commencement. 
     He implicitly attacked Joe McCarthy and McCarthyism, 
     admonishing students: ``Don't join the book burners.''
       Consider the context of Eisenhower's speech: we were in the 
     midst of a Cold War with the Soviet Union, over 50,000 
     American men had been killed in Korea, and there were indeed 
     prominent pro-communist traitors in our own government, as 
     well as in allied governments. Nevertheless, speaking 
     extemporaneously, Eisenhower courageously said, ``How will we 
     defeat communism unless we know what it is and what it 
     teaches and why does it have such an appeal to men, why are 
     so many people swearing allegiance to it? . . . And we have 
     got to fight it with something better, not try to conceal the 
     thinking of our own people.''
       And this is the part I love: ``They are part of America. 
     And even if they think ideas that are contrary to ours, their 
     right to say them, their right to record them, and their 
     right to have them at places where they are accessible to 
     others is unquestioned, or it isn't America.''
       Because McCarthy was a Republican, it was important that 
     Republicans--most notably Sen. Margaret Chase Smith and then 
     Eisenhower himself--were the ones to speak out and put an end 
     to his reign of intolerance. I hope you Dartmouth students--
     on both sides of the political spectrum--will stand up for 
     freedom of expression. It is not a partisan issue. It is, as 
     I have tried to explain, fundamental to American democracy.
       To be sure, you may have to draw upon ``the granite of New 
     Hampshire, in your muscles and your brains'' to withstand the 
     immense pressure to bow to conformity. But I expect nothing 
     less.