Editor's note: This article was originally published at Wirepoints.org.
“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”
Those words are from the United States Supreme Court in 1943, which it quoted and affirmed with that emphasis added in 2017.
That star still guides the courts, but some in Illinois are in the dark. They include trustees of the University of Illinois, Gov. JB Pritzker and the majority of the Illinois General Assembly.
Somebody needs to enlighten them. In court.
A couple First Amendment specialists joined me on our recent podcast to provide their take on two matters and to describe who would be in the best position to sue.
The first matter is the University of Illinois Urbana-Champaign’s new policy that will require faculty to participate in Diversity, Equity and Inclusion efforts to earn tenure or a promotion, which was recently approved by its board of trustees. It’s mandated wokeness, in both words and conduct. It will require all faculty to “engage in DEI activism, or else.” That’s how The College Fix put it in their headline on a recent column discussing the new policy. Faculty will be required to submit personal statements attesting to their DEI efforts.
Those required statements reminded Anna St. John, one of the lawyers I spoke to, of “loyalty oaths” that were required in the days of McCarthyism. She and Adam Schulman, the other lawyer I spoke to on the podcast, are with Hamilton Lincoln Law Institute, a public interest law firm doing pro bono work on free speech and other matters around the country. And they’ve been winning. The First Amendment, as we discussed, prohibits not just restrictions on speech but forced speech, as reflected in that quote from the Supreme Court.
Among other wins they have had recently was Greenberg v. Haggerty, which is similar to the UIUC matter in several ways. In that decision, a federal court invalidated a DEI mandate of sorts that was part of Pennsylvania’s attorney conduct rules imposed by that state’s supreme court. It’s particularly interesting because the defeated defendant was the Pennsylvania Supreme Court itself. After losing, they claimed to comply by tinkering with there rules in a minor way, but got hauled right back into federal court and lost again on a summary judgement motion.
Who could sue UIUC on a compelled speech basis? The plaintiff would have to be a faculty member, St. John and Schulman said, not a student or a taxpayer.
The challenge, of course, is finding a faculty member with the guts to do that. Faculty at campuses across America are widely known to be intimated into silence by the woke mob of administrators and students, and UIUC is undoubtedly no different. The College Fix column addressed that issue. They found only anonymous sources who would talk about it.
The other matter subject to First Amendment litigation is Illinois’ new mandate that makes gas stations and grocers post notices of temporary suspensions of sales taxes. Failure to post the notices will mean hefty fines — $500 per day. We and others have criticized the mandate as transparently political election-year boasting by Pritzker and incumbents in the General Assembly. The sign mandate is also a form of coerced speech.
Here, according to St. John and Schulman, gas station and grocery owners are in a position to sue, but not customers or taxpayers.
On the sign mandates, help may already be on the way. The Illinois Fuel and Retail Association reportedly plans to challenge the constitutionality of the mandate. The association’s president believes the signs are an election year gimmick. “For us, that’s political speech. It’s unconstitutional to force businesses to do that and we’re not going to go along with that,” he said.
The association may have standing to sue over the signs, but more plaintiffs would help — gas station owners and grocers.
The First Amendment is not just some technicality. Trampling on it means no democracy. Most Americans are fed up with the wave of suppression and censorship now openly embraced by the far left that’s now in power, but they need to act.
Sue the offenders.