In light of HB2 free speech threats, ethics probe seems warranted

The public furor over the North Carolina legislature’s controversial House Bill 2 has obscured worrisome reports that some lawmakers will not tolerate criticism of the bill and intend to punish critics.

As we all learned in civics class (though some appear to have forgotten), our First Amendment protects freedom of speech, which means that the government may not punish citizens for criticizing it. North Carolina’s Constitution has a parallel provision that says, “Freedom of speech and of the press are two of the great bulwarks of liberty and therefore shall never be restrained.” Much has been written about the value of free speech in protecting democracy and promoting social progress, but “bullwark of liberty” sums it up nicely.

More than 200 companies, including many that do business in North Carolina, have criticized HB2 – our now infamous bathroom law – naturally understanding that such criticism was constitutionally protected. So it came as a shock last week that leading companies are now concerned that lawmakers may target them for retaliation.

As The N&O reported, American Airlines was on “high alert” that state lawmakers may eliminate a tax break in order to punish the company for opposing the law. N.C. lobbyists told WRAL that legislators had informed them that if they or their clients spoke out against HB2, they could expect retribution. The lobbyists declined to be identified, for obvious reasons.

We know that legislators can make good on their threats. We remember that, not long ago, Gov. Pat McCrory and legislative leaders were outraged over newspaper opinion columns written by UNC law professor Gene Nichol. Less than a year after the unhappiness was expressed, UNC’s Board of Governors unsurprisingly shuttered Nichol’s Center on Poverty, Work and Opportunity. While Nichol successfully continues his poverty research, we know many businesses would not be as lucky. State support is critical for their livelihoods.

Legislators who have threatened to punish free speech have violated the oath they took to uphold the federal and state constitutions. An ethics investigation seems warranted. Our legislators should publicly declare their intention to respect and safeguard our freedom to criticize legislation as part of our constitutional freedoms and affirm that public opposition to laws will never be punished in our state.

The vigorous debate over HB2 that is taking place across the state and the nation is exactly what the First Amendment protects. Any efforts by state leaders to silence or punish people for their opposing views are precisely what the First Amendment forbids.

Michael Gerhardt is Samuel Ashe Distinguished Professor in Constitutional Law at UNC School of Law. Rob Tiller is an attorney with Red Hat in Raleigh.

NOTE: An earlier version of this piece mischaracterized Gene Nichol’s new poverty effort as a center. While Nichol continues his poverty research, it is funded by the UNC Law Foundation.