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October 2017

Chairman Pai: It's Official Policy to Release Meeting Items in Advance

Federal Communications Commission Chairman Ajit Pai has officially declared an end to the pilot project of publishing the text of meeting items three weeks before they are voted, but only to declare it his policy going forward. That came at a press conference following the FCC's public meeting Oct 24.

The chairman early on instituted the test as part of his transparency agenda. Asked at the meeting about the status of the test, he first said it had been a success and making it permanent was certainly something he was willing to discuss with his colleagues and "working with the commission staff to determine the feasibility and benefits of doing so. But after a pause, he continued: "In fact, you know what, let's just go ahead and declare the pilot over. It is not the official policy of the FCC to release these at least three weeks in advance of the monthly meeting." As leader of the loyal opposition under former FCC Chairman Tom Wheeler, Ajit Pai was a frequent critic of FCC process, saying it lacked transparency—he has long argued for letting the public know what is being voted on at public meetings—and said it was the kind of regulatory certainty that a competitive marketplace needs.

There is no 1st Amendment right to speak on a college campus

[Commentary] First Amendment rights were developed and defined in order to protect the political life of the nation. But life within universities is not a mirror of that life. The cardinal First Amendment rule of viewpoint neutrality has absolutely no relevance to the selection of university speakers. Any court that denies this is living in fantasy, blinded by a mechanical doctrine that has no relevance to the phenomena it is supposed to control.

The root and fiber of the university is not equivalent to the public sphere. If a university believes that its educational mission requires it to prohibit all outside speakers, or to impose stringent tests of professional competence on all speakers allowed to address the campus, it would and should be free to do so.

[Robert C. Post is the Sterling professor of law at Yale Law School. He served as dean of the school from 2009 through spring 2017.]

Hate speech is protected free speech, even on college campuses

[Commentary] I have been teaching First Amendment law to law students and undergraduates for more than 37 years. I have also litigated free speech cases, including at the Supreme Court. I believe that Chancellor Christ and the campus have done a superb job of adhering to the First Amendment, protecting free speech while ensuring the safety of students, staff, and faculty. But it’s also become clear to me that current college students are often ambivalent, or even hostile, to the idea of free speech on campus.

Robert Post’s premise is undoubtedly correct: Universities must evaluate the content of faculty and student work. But it does not follow that outside of this realm, free speech principles do not apply on campus. It is a logical fallacy to say that because basic free speech principles sometimes do not apply on campus, they must never apply.

[Erwin Chemerinsky is dean and Jesse H. Choper distinguished professor of law at the University of California Berkeley School of Law.]

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