For the Balkinization symposium on Free Speech in Crisis and the Limits of the First Amendment.
Vicki C. Jackson
[This
essay is adapted from a piece originally published March 28, 2025 on Verfassungsblog]
Why
knowledge institutions are crucial for constitutional democracies
Knowledge
institutions – including universities, the truth-oriented press, government
offices with data collection or scientific responsibilities – are crucial for
constitutional democracies. They have as a central mission the search for truth
or better understandings, through independent application of disciplinary or
professional standards of reliability. Without free discussion based on
knowledge, the democratically legitimating role of public
participation in elections and policy processes declines. Elections become less
meaningful indicators of public views; public checks on poor policy choices, or
abusive or corrupt governance, dwindle. A constitutional democracy
is committed to the rule of law and the equal protection of rights – to which
ends the public must be able to know what the laws are, what their rights are,
how to protect those rights, and how well the legal system is functioning. The
exercise of rights – whether individually or by organizations – will often
depend on a foundation of informed choice.
Institutions
provide the home where much knowledge is produced. As explained in prior work
(e.g. here, and here), they are critical to sorting through the many claims
that bombard us about what is true, and they help protect their working
members’ rights in many ways. But knowledge institutions cannot perform their
knowledge – creation/verification roles if they are at risk of being punished
by the government. They avoid topics or views that may upset the government.
As Steven Levitsky says,
“When
you see important societal actors – be it university presidents, media outlets,
C.E.O.s, mayors, governors changing their behavior in order to avoid the wrath
of the government, that’s a sign that we’ve crossed the line into some form of
authoritarianism”.
To be
the kinds of institutions healthy democracies need, knowledge institutions must
honestly and independently apply their own institutional criteria for
truth-seeking. Intimidating knowledge institutions not only chills their
members’ willingness to be critical, but also the willingness of others in
society publicly to question the government. (Attacks on these institutions are
often coupled with attacks on unpopular minorities, such as foreign student
protesters, and other assaults on constitutional democracy.)
And this is what is happening in the United States today, across many different kinds of knowledge institutions.
The
role of law
Knowledge
institutions are interdependent. Academia and the press depend on government
statistics; government offices depend on press reports of problems requiring
attention and on university analysis of long-term effects that may be the
subject of or require regulation. Yet the entire U.S. knowledge infrastructure
is under real threat.
The
significance of these attacks is magnified by concurrent attacks on the role of
law. The Trump Administration has sanctioned or threatened major law firms, essentially because they represented or
employed persons perceived as Trump’s opponents; it does not appear that the
decisions to revoke security clearances for the lawyers were based on evidence
of actions that threatened national security or otherwise justified revocation.
In other Trump Administration action, the US Attorneys’ office in DC announced it would not consider Georgetown Law graduates for
federal employment because of Georgetown’s DEI commitments. All this
without any hearing or judicial findings – and without any new statutory or
properly promulgated regulatory authority. These efforts may well intimidate
lawyers from representing persons the Trump administration opposes.
Administration
members and supporters have also threatened judges – with defiance of judicial orders, and removal from office
– eliciting an unusual public response from the Chief Justice.
These and other threats warrant sustained resistance, like that
offered by the American Bar Association.
When a federal official in 2007 threatened law firms that were
representing GTMO detainees, there was an outcry and the threats were
disavowed by the Bush administration. This reflects a correct constitutional
understanding of the role of lawyers here. The silence today is deafening –
with some exceptions, including the ABA statement, Princeton University’s president’s statement, and the Georgetown Law Dean’s response to the announced
refusal to hire its graduates.
A core
ethical obligation of the Bar is providing representation even to unpopular
clients; the adversarial system of law depends on this. A core element of a
democracy is that election winners do not persecute election losers simply
because they were opponents; doing so elevates the stakes of loss and may
contribute to erosion of democracy (because those in power won’t want to risk a
fair election and possible loss of power). Yet overbroad immunities for serious
criminal acts by those in power can remove essential guardrails; knowledge and
legal institutions are essential to maintaining a proper balance, preventing
politically motivated prosecution without removing those guardrails. And the
rule of law not only requires notice and clarity about the law, but also
stability in the law. From dismantling entire federal offices funded by
Congress to penalizing universities and employers for DEI programs or research encouraged by
prior administrations, an across-the-board disregard for stability has been
shown. Large-scale changes with serious material consequences should be made
through reasonable legal processes, not by executive fiat.
Time
for courage – and resistance
The only
source of opposition from within the government thus far has been from the
federal courts, whose judicial independence to apply the law is being
demonstrated by courageous judges. As Salman Rushdie is reported to have said
in 2008,
It is a
time for courage and for the institutions of knowledge, of law and lawyers to
resist – clearly, and repeatedly, for all have a stake in preserving
knowledge-related freedoms and the rule of law. Over the long haul, knowledge
institutions need also ask themselves how to improve public trust in their
processes and thereby help forestall future attacks.
By Vicki C. Jackson is
Laurence H. Tribe Professor of Constitutional Law, Harvard Law School. You can
reach her by e-mail at vjackson@law.harvard.edu.