Tulane’s battle to redefine Free Speech in Louisiana


One year ago, we brought you the “Curious Case of Ross Brunet”.  If you don’t quite remember it, click the link and read it again. At the heart of the matter was the deliberate targeting and (malicious) prosecution of Ross Brunet by officials of the Town of Grand Isle. His crime? Flying vulgar flags critical of Joe Biden which violated a Town of Ordinance.

Were you confused?

If so, you weren’t the only one.  The original article left many scratching their heads, but it was intended to make people think. Specifically, that segment of people who thump the Constitution (or the First Amendment for that matter) and think that they can fix the system by educating politicians on the document. How has that been working?

It’s like training a person to operate a piece of equipment using the instructions designed for an older model. The system we have today is not the system our founders designed! The instruction manual for operating the original national government has been ignored and changed beyond recognition. The law be damned, executive orders reign supreme, and legislating from the bench is the new way we write laws.

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Does flying a flag constitute freedom of speech?

The overwhelming majority of people will answer “YES!” Why? Because of the First Amendment, of course! “Congress shall make no law… abridging freedom of speech…” But did the founding fathers intend flying a flag to be covered? That is debatable. The extension of the First Amendment to include this type of act of expression was something the Courts created. The clear language shows it was a prohibition on “Congress” (and only Congress) to create any law abridging freedom of speech. But what about the Executive? Could he curtail “speech”? Or what about the Court, could they abridge speech through judicial ruling? And of course, all of this was just a limitation on the national government.

Is your head spinning yet? The fact is that the U.S. Constitution and the original ten Amendments were designed to limit the power of the federal government. The Constitution provided for expressly enumerated powers reserving all other powers to the people of the individual states. The proper construction of the document is best understood when you read the Tenth Amendment.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Incorporation to the States

Arguments about federal constitutional rights applying to the States did not surface in the United States until around the first quarter of the twentieth century. Before that, in 1833, Chief Justice John Marshal (a nationalist) in the case of Barron v. Baltimore stated that the Bill of Rights “contained no expression indicating an intention to apply them to the State governments.” The individual States could infringe on your freedom of speech if there was not any provision in the state constitution or laws prohibiting it.

Then in 1925, nearly sixty years after it was adopted and during the age of increased Progressivism, the U.S. Supreme Court decided that the 14th Amendment suddenly required the State governments to respect the First Amendment’s guarantee of free speech to its citizens. Thus began a gradual process of “incorporating” or applying the Bill of Rights to the States.

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What happened with Ross Brunet?

Ultimately the Town of Grand Isle settled with Ross Brunet late last year. According to the Settlement Agreement, the Town acknowledged that it wrongfully cited Brunet for engaging in constitutionally protected speech of flying flags with political messages. The Town and its officials agreed to cease interfering with Brunet’s right to fly a flag or flags with the word “F**k” on them and agreed to repeal Ordinance 1012, which was specifically enacted to address Brunet flying flags in public. The Town also agreed to pay a $40,000 award for damages and attorney fees.

There are a couple of things worth mentioning here. Again, some people will leave here scratching their heads. That’s fine! Hopefully, the scratching increases some blood flow and provides for stimulation. Absent the judicially created “incorporation doctrine” which allowed for recovery under the First Amendment, could Brunet have successfully petitioned in state court for a violation of his rights under the State Constitution? After all, the Louisiana Constitution contains a declaration of freedom of expression in Article One, Section Seven. It reads:

No law shall curtail or restrain the freedom of speech or of the press.  Every person may speak, write, and publish his sentiments on any subject, but is responsible for abuse of that freedom.

Is flying a flag: speaking, writing, or publishing? If the issue is not flying the flag, but rather vulgarities written on the flag, would it be covered? Well, since “incorporation” of the First Amendment has become commonplace, our state courts mostly base their determination on whether something is a violation of Article One, Section Seven based on federal jurisprudence.

Federalism is on Life Support

It doesn’t matter how many times you correct people and say “This is not a Democracy, it is a Republic,” nothing changes. There’s a reason for that. We are not living in the country of the founding generation. We are living in a deconstructed federated republic that has been reassembled into the all-powerful, all-knowing (thanks to their large domestic spy network) United States!

That’s why we see so many disputes brewing between States (who wish to assert their authority as such) and the federal government. Look at the Texas border crisis as just one recent example. Federalism and the right to self-government barely survived the American Civil War. People who support the State of Texas in protecting its border know full well the need for a rebirth of federalist principles; true federalist principles.

At what level and to what degree can a State or political subdivision thereof determine what is appropriate for the people of that community? Is freedom of speech absolute? The acts of all three branches of the national government indicate a belief that it isn’t. It makes no difference whether you believe it is God-given or whether you feel it is provided through the strongly worded language of the First Amendment. Are you guaranteed a “right” to absolutely say whatever you want, whenever you want, wherever you want, however you want? But if it’s not absolute it’s also in danger of suppression by the government at all levels.

A Dangerous Servant, and a Fearful Master

The phrase: “Government is not reason, it is not eloquence – it is force! Like fire, it is a dangerous servant and a fearful master; never for a moment should it be left to irresponsible action,” is often attributed to George Washington. Regardless of where the statement originates, it remains very accurate – Government is Force!

The force of government is a power to be reckoned with and, unfortunately, power will always be misused. Whether the power is intended for good people to do good things, bad people will eventually possess it and use it for bad purposes. Most politicians only think in terms of what will benefit them and increase their power. It is for these reasons we must have absolute limits in government!

It is the Constitution that was intended to limit the size, scope, and power of the national government. Yet today we have the biggest and most intrusive government to ever exist. The massiveness of the national apparatus has trickled down to our state. Our state has again and again done the bidding of the central government in exchange for the return of tax dollars our own citizens have paid. It must stop!

Yes, We Furnish The Means By Which We Suffer

The rant doesn’t end there either. But perhaps there is a larger issue that can more easily be grasped. Brunet was represented by the Tulane First Amendment Clinic which only just spang up in 2020.

According to the Tulane website, the First Amendment Clinic was established thanks to the generous support of the Stanton Foundation. That foundation was formed in New York in 2009 upon the death of Frank Stanton, former President of CBS. Unfortunately, the Stanton Foundation isn’t the only financial supporter. You, my fellow taxpayers, are also funding this menace!

According to the Louisiana Checkbook, you and I have recently begun to provide momentous funding (upwards of $75 MILLION) to Tulane University. Unsurprisingly, this extraordinary funding commenced at the exact moment this new law clinic was formed! In 2020 Tulane University received over $1.1 million from the State of Louisiana. Since then the number has skyrocketed by tens of millions of dollars per year. Tulane then received over $11 million in 2021; $32.3 million in 2022, and $42.1 million in 2023.

This begs the question: Why are we funding a University that initiates costly legal action against our State government, its political subdivisions, and even its own citizens? Here’s something else that may be worth knowing. Tulane allows (bribes?) every single legislator and senator in Louisiana with a full-ride scholarship (worth about $60,000 per year) to be gifted to any student they’d like.

Tulane University is fully engaged in the Library wars, too

It just so happens the Tulane First Amendment Clinic has also been involved in trying to undermine various local Library Boards’ attempts to protect children from vulgar materials. Their website even brags about it.

Local residents who oppose [the removal of erotic materials from library children’s sections] in Lafayette, Livingston, St. Tammany and Rapides Parishes have requested our legal support.

It is the Tulane First Amendment Clinic that filed suit against Lafayette Consolidated Government and Library Board of Control President Robert Judge on March 7, 2023. The suit alleges unconstitutional library policies and a violation of the Louisiana Open Meetings law. A more recent example happened on January 18, 2024. That’s when the Livingston Parish Library Board of Control received a strongly worded letter from Tulane. The letter warned the library against the “removal of constitutionally protected materials.” If Tulane University wishes to engage in lawsuits against taxpayers then perhaps taxpayers shouldn’t be subsidizing them annually with scores of millions of dollars!

Again, there is a need for absolute limits on our government at all levels! Absolute limits to prohibit government overreach and abuse. Absolute limits on the behavior of government officials! Absolute limits on the use of government personnel and resources to promote social agendas! And absolute limits on tax dollars being loaned, pledged, or donated to private establishments.


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