I must confess that there are times—not often—when I regret hanging up my litigation spurs. I’ve seen first-hand what a comprehensive national litigation strategy can do to reverse illiberal or authoritarian trends. For example, when a merry band of First Amendment litigators first began to take on university speech codes (speech policies that unlawfully restrict constitutionally protected expression), more than 70 percent of major colleges and universities maintained so called “red light” speech codes, according to the nonpartisan Foundation for Individual Rights in Education (FIRE).
(Full disclosure, I’m a former FIRE president, and I helped launch its first efforts to evaluate university speech policies.)
By 2021, the “red light” schools had dropped to 21 percent, and a record number of schools earned the “green light” endorsement—indicating that their policies “do not seriously threaten campus expression.”
Why did this happen? The answer is complicated, involving a series of state campus free speech laws, internal campus political dynamics, and a wave of federal speech code lawsuits. But I’m convinced that litigation was the precipitating event that forced change. Simply put, universities kept losing and losing lawsuits. In fact, no university has ever won a speech code challenge on the merits. The policies were a legal disaster, and schools collectively paid millions of dollars in legal fees after mounting fruitless and futile defenses to clearly unconstitutional policies.