When Jerry Falwell Jr. closed down the Liberty University College Democrats, a student club, we at the American Civil Liberties Union of Virginia were inundated with calls asking when we were going to file suit against the school for violating the constitutional rights of the club members.
Every one of those callers received a surprise answer. We told them we had no plans to sue Mr. Falwell and that we might even argue that he should have a right not to recognize the club.
Which is not to say that Falwell’s actions were appropriate or warranted. Indeed, whatever naïve notions we had about colleges being the marketplace of ideas were certainly bruised when Falwell announced that a student political club would no longer be sanctioned simply because he did not like what it stood for.
This strikes me as an unwise decision on Falwell’s part, not much different from when his father infamously sued Hustler over a vulgar parody featuring the controversial minister and his mother. In both cases, a Falwell decided to suppress expression he didn’t like – the father by suing a magazine, the son by defunding a student group. The father was unsuccessful because the right to satirize a public figure, even when in poor taste, is protected by the law, as it should be.
The son will likely lose his case in the court of public opinion, and the reputation of Liberty University will surely suffer because of this misstep. Ultimately, he may even be tripped up by the multitude of regulations that apply to schools that have tax-exempt status or receive some government support. But he is not violating anyone’s constitutional rights.
Among other notable safeguards, the First Amendment prevents the government from suppressing our right to free speech, assembly and petition. Together these explicitly stated rights are interpreted to confer the right of association, for if you can’t gather as a group, club or organization to express your ideas, then the force of free speech is divided and thereby substantially weakened.
Thus, the government cannot interfere with the Liberty University College Democrats anymore than it can disband the Democratic Party. But Liberty University is a private school and Jerry Falwell Jr. is neither the government nor an agent of the government, so his choice not to recognize the club does not pose a constitutional problem.
It would be different if Liberty were a public university, like the University of Virginia or William & Mary. These universities are organs of the state and therefore part of the government. If an official at UVA or W&M discriminated against a student club because of its political views, such action would indeed violate the First Amendment. Student clubs, be they comprised of Democrats, Republicans, Libertarians, John Birchers or Marxists, are all entitled to the exact same treatment by a public university.
What Jerry Falwell Jr. ought to do in this instance may not be a First Amendment question, but it is a legitimate one. As the head of a university, Falwell best serves his institution’s purposes by helping students learn and then respecting their right to make their own choices.
Society’s purposes are served as well. Our Founders were well aware that the right of free speech was more than an individual liberty, and frequently wrote of its broader purposes. By promoting the sharing of ideas – through political associations, literature, scientific inquiry, and expressions of faith and philosophy – free speech fuels our cultural vitality.
Jerry Falwell Jr. cannot be compelled to like the Democrats, and he certainly is free to state his opinion of them. But I’m willing to bet that most of us would urge him to honor the tradition of college campuses as fonts of free thought and inquiry – a notion pre-dating even the First Amendment – by allowing the Liberty University College Democrats to remain.
Kent Willis is the executive director of ACLU-Virginia.
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