Suppose Jack is a student at a public university with a student senate. Senators are paid by the university. The senate elects one of its members to be senate president, and the senate president is paid more than the rest of the senators. At some point, Jack makes anti-LGBTQ comments in semi-private setting (e.g. group chat for a student organization).

Consider the following hypotheticals:

(1) Jack is running for student senate. Jack makes his comments before the election, and as a result loses.

(2) Jack makes the comments after being elected, as is recalled as a result.

(3) After being elected to the senate, Jack makes the comments, then runs for senate president, but loses the bid to become president because of the comments.

(4) Jack makes the comments after being elected senate president, and the senators vote to remove him from the office as a result.

In (1), the university is not explicitly giving money on a basis favorable to people who don't express anti-LGBTQ views, but they are offering it in a manner that has a disparate impact on such people. In (4), people acting on the university's behalf are taking a paid position away based on expressing those views. For which of these hypotheticals are Jack's rights being violated?

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    Who is acting on the university’s behalf? This is a student group with bylaws/ a constitution. They are not university employees. Any pay is a stipend or scholarship. Also if this question is to be salvaged, you need a country or state.
    – Damila
    Nov 27, 2020 at 3:45
  • @Damila The senators are making a decision on how to spend the university resources. Nov 27, 2020 at 3:51
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    No, they are making a decision of who is their presiding officer. That that role comes with a stipend does not matter.
    – Damila
    Nov 27, 2020 at 4:02
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    There are more rights than just First Amendment rights, though perhaps you meant to restrict the question to just First Amendment violations. Why do you invoke "free speech" in this question?
    – user6726
    Nov 27, 2020 at 5:26
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    If voters (at any level) cannot use the candidate's actions (including the statements he produces) to decide if they want to vote for that candidate or not, what is left for them to decide? How cool his clothes are? The university does not take any action (or omits taking them) here, no law is punishing Jack, it is just that he is a bad fit for the position he is running for or trying to hold into.
    – SJuan76
    Nov 27, 2020 at 9:34

1 Answer 1



The First Amendment says:

Congress shall make no law ... abridging the freedom of speech, ...

Jack has exercised his freedom of speech and has not been fined, imprisoned or otherwise punished by law.

Freedom to speak does not ensure freedom from consequences

We can use your example of anti-LGBTQ comments or we can substitute any other thing you like: anti-veteran, pro-veteran, anti-Trump, pro-Trump, anti-Ice Hockey, pro-Ice Hockey or, of course, pro-LGBTQ. Jack can say what he likes on any of those subjects and anybody else can take offence to them and act accordingly.

In terms of voters in an election - this the ultimately epitome of free speech, they can vote for who they like for whatever reason they like.

In terms of people serving on a board, they voluntarily restrict their freedom to speak because of their duty to the organisation they represent. Whatever their views in private, by agreeing to take on the duty they agree that they will act in accordance with the ethics and ethos of the organisation in public. If they don’t, they can be disciplined; usually for the catch-all offence of bringing the organisation into disrepute. Providing the organisation follows its internally mandated procedures and affords natural justice (I.e. it follows due process), no court will overturn its right to act according to its principals.

  • "Freedom to speak does not ensure freedom from consequences" Certainly, there are consequences from a state actor that can arise from speech. Nov 27, 2020 at 3:53
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    @Acccumulation now I think you’re asking for the right to act like a dick without being called out as a dick - no such right exists.
    – Dale M
    Nov 27, 2020 at 9:03
  • This isn't about being "called out", it's about losing out on a paid position. And I'm not asking for anything, I'm asking about a right. I'm trying to understand the jurisprudence regarding this issue, and you're acting like I'm arguing for a position, and you are being rude about it. Nov 27, 2020 at 19:20
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    Public universities, being government institutions, have a higher duty to respect constitutional rights than do private universities. This includes freedom of speech. This answer is incomplete because it does not adequately examine the issue of whether the contemplated hypotheticals constitute restriction of speech by the university (and thus by the government).
    – phoog
    Nov 27, 2020 at 20:47

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