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Late last week, National Review’s Jim Geraghty on a speech by Newt Gingrich at AEI. As part of a speech that ranged over many topics, Gingrich said the following (according to Geraghty):

Ward Churchill is a viciously anti-American demagogue. He has every right to free speech, and I support his free speech… We should give him free speech by not paying him.

You don’t need tenure in this country anyway. The idea that he would be oppressed without tenure is nonsense. There are 75 whacked-out foundations that would hire him for life. Dozens of Hollywood stars would hold fundraisers for him. His life will become a film by Michael Moore.

The question here is, “What obligation does society have to fund its own sickness?”

We ought to say to campuses, it’s over…. We should say to state legislatures, why are you making us pay for this? Boards of regents are artificial constructs of state law. Tenure is an artificial social construct. Tenure did not exist before the twentieth century, and we had free speech before then. You could introduce a bill that says, proof that you’re anti-American is grounds for dismissal.

Eugene Volokh Gingrich’s comments in his blog—arguing that doing away with tenure does not allow the state to punish Ward Churchill’s speech. Public university professors are protected by the First Amendment regardless of whether they have tenure.

I can’t improve on Eugene’s post, but I did want to highlight something else. Gingrich asks, “What obligation does society have to fund its own sickness?” This is a good question—but it is constitutionally dangerous. One of the most common statements we hear at FIRE(in the context of both public and private schools—since almost every college and university in the United States receives significant government funding) is: “Sure, they have their right to free speech, but why do I have to fund it?”

In essence, what Gingrich (and others) wants is to attach viewpoint-related strings to public funds. We will “fund” speech, but only the speech we like. In the public university context, I can think of few ideas more catastrophic to free speech and open debate than the notion that the funding entity controls the political discourse of a university community. Do we really want state legislators injecting themselves into tenure disputes? Deciding which English teachers deserve their salaries? The obligation of the funding entity should be viewpoint neutrality, not ideological conformity.

Within the university setting, think of the state as funding not a point of view but a marketplace of ideas. The goal is to advance knowledge and freedom through public institutions that foster and support the free exchange of ideas. The existence of a Ward Churchill is no more evidence that the marketplace is broken than the existence of the Edsel (or, even worse, the ) was evidence of fundamental problems in the American car market. Even in a perfectly functioning marketplace, Ward Churchills would exist, teach (sometimes to packed houses), and maybe even get tenure.

The real problem in our public universities is not that “bad ideas” are funded but that the marketplace of ideas itself has broken down. Through speech codes, mandatory diversity training, viewpoint discrimination in hiring and other mechanisms that violate basic constitutional protections, universities have closed the free marketplace and are often simply vendors for the prevailing political orthodoxy. If Newt wants to create positive change at our universities, he should be talking about opening them up to more ideas, not adding yet another “forbidden topic” to the long list that currently exists.

How have we improved our universities if we add just one more “ism” to the long list of banned thoughts and words? Campuses have already banned subjectively defined expressions of racism, sexism, homophobia, and so on. Do we solve anything by including “anti-Americanism”? If the state and federal government have any role in this dispute, it is to take steps to restore the free marketplace, not to add further restrictions.