How latest U.S. state action misinterprets freedom of speech
Editor's note:Sun Yang is an associate professor of China University of Political Science and Law. This article reflects the author's opinion, and not necessarily the views of APD.
U.S. national security adviser, John Bolton has criticized China for attempting to influence opinion in the country via Confucius Institutes.
However, the First Amendment of the U.S. Constitution guarantees the freedom of speech, which establishes the constitutional cornerstone of U.S. democracy through the limitation over government's legislative power on the diversity of ideas, opinions, thoughts, and information by individuals or organization.
Ironically, the latest U.S. state action may challenge such constitutional tradition by misinterpreting the freedom of speech that unreasonably accuses the normal operations of the Confucius Institutes within U.S. territory.
On February 13, Senator Rubio introduced a bill which enacts to counter the so-called “political influence operations” by the Government of China.
In this bill, “the Sec.2. (2)” defines the term “political influence operations” to cover the accusation of “academic censorship” by government-funded educational projects—the Confucius Institute.
During the same period, another official report on the Confucius Institute covers the identical “concern.” The Permanent Subcommittee on Investigation of the Committee on U.S. Homeland Security and Governmental Affairs (Short for PSI) published a report entitled “China's Impact on the U.S. Education System.”
Headquarters of Confucius Institute in Beijing, China, January 31, 2012. /VCG Photo
The “Findings of Fact” section of this report accuses the Confucius Institute of limiting the events or activities critical of China on campuses. The report further indicates the Confucius Institute compresses academic freedom by the project's funding.
With all these negative assessments against the Confucius Institute, one primary question remains unclear: Is the accusation of "academic censorship" or "compression on academic freedom" grounded in the constitutionality of the First Amendment of the U.S. Constitution or merely a misinterpretation to the general doctrine on freedom of speech?
To figure out a clear and convincing answer, the interpretation of the First Amendment on freedom of speech should fit into the operation of the Confucius Institute. Since the Institute is devoted to the promotion of Chinese culture and language in foreign primary schools, secondary schools, and communities as a non-profit public institution, the interpretation of U.S. First Amendment should be confined to the classical “School Speech” category.
As aforementioned, the freedom of speech prohibits governmental censorship on various speeches to secure the diversity of social culture and prosperity. In the landmark decision Tinker v. Des Moines, the U.S. Supreme Court interpreted school speech of constitutionality that the speech in school ought not to be deprived of the constitutional protection on the freedom of speech or expression.
The Tinker case further ruled the justification on speech censorship should reside on the showing that certain speech “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.” In other words, school speech that potentially disrupts the discipline of school would not be protected under the U.S. Constitution.
Accordingly, the test on constitutionality resides on whether the speech-related activities violate the disruption measurement. Specifically, the issue on the accusation against the Confucius Institute becomes whether operation by the Institute on speech-related events causes disruption in U.S. schools.
Students form Chinese characters for the numbers one through 10 as they are taught by Chinese guest teacher Xu Dou at Johnson Middle School in Bradenton, Florida, September 5, 2014. /VCG Photo
Incorporating constitutional interpretation into a specifically fact-based issue demands objective facts and examples. A recent report by the U.S. Government Accountability Office (GAO) meets the demand through a detailed survey on 90 agreements signed by Confucius Institutes and U.S. partnership schools as well as a series of interviews on school officials who participate in the Project.
According to the report, officials in U.S. schools indicated that U.S. school faculty members make all decisions regarding conference themes, guest speakers, and topics in the course of speech-related activities. In addition, officials stated that the Confucius Institute has never rejected the proposal for topics on the above events.
The interview with several faculty members in U.S. schools confirms no restriction by the Confucius School on topics they taught in classes, researched, or presentation at conferences. Furthermore, officials interviewed by the GAO offered several examples to state that they did not encounter any limitations on holding events with any topic even though the funds of events sponsored by Confucius Institute.
Obviously, the operation of the Confucius Institute does not cause “materially and substantially” disruption on the discipline and classwork of U.S. partnership schools. To the contrary, the Confucius Institute fully respects the autonomy in teaching and academic affairs by U.S. schools through cooperation.
According to the holding from the landmark precedent Tinker, the constitutionality of speech-related activities by Confucius Institutes should be secured and guaranteed. Therefore, the accusation against Confucius Institute surely lacks solid ground from the perspective of the U.S. Constitution. Specifically, such accusation unreasonably misinterprets the First Amendment on school speech with respect to the operation of Confucius Institutes.
Another concern to the misinterpretation of the First Amendment lies in the Sec. 1091. “Prohibition of Funds for Chinese Language Instruction Provided by A Confucius Institute” of the National Defense Authorization Act (NDAA) for the fiscal year 2019.
Sec.1091 explicitly provides that no funds should be appropriated or available to Chinese language programs by Confucius Institute within U.S. territory, and the only waiver to the clause must be necessary for national security.
By limiting the appropriation of funding, this clause aims to discriminate the speech-related events by the Confucius Institute and manipulate the motivation in the course of a cooperative partnership between the Confucius Institute and U.S. schools.
Under the circumstances, the focal point lies in how the U.S. Supreme Court may interpret the constitutionality if this clause enters into the force of law. The U.S. Supreme Court once declared “Discrimination against speech because of its message is presumed to be unconstitutional.”
In Rosenberger v. University of Virginia, the Court held that prohibition on funds to student organization merely because the funds were used to publish a religiously oriented newspaper constitute the violation of the freedom of speech guaranteed by the First Amendment.
Although the holding still covers certain exceptions, the discrimination on speech generally is not accepted by Majority of the Court due to its inherent nature on unconstitutionality. Therefore, the clause on the funding prohibition that limits the speech-related events by Confucius Institute may not smoothly pass the judicial review by the Court regarding its constitutionality.
The U.S. Constitution is the Law of Supremacy within U.S. territory, and the constitutionality recognizes the authority of U.S. state action. The freedom of speech guaranteed by the First Amendment seeks to limit the state censorship in order to preserve multiculturism, yet recent U.S. state action on the Confucius Institute seems to overlook the consideration of constitutionality and may misinterpret the freedom of speech.
Considering the Founding Fathers of the United States embraced the diversity of culture through the enactment of First Amendment of U.S. Constitution, their successors on the Continent are better to follow the spirit.
(CGTN)
