Protecting The Indispensable Right: It Is Time To Pass The Free Speech Attorney’s Fee Legislation

Authored by Jonathan Turley via JonathanTurley.org,

A newly proposed bill in Congress could make a meaningful difference in the fight to restore free speech protections in higher education. The Restoring Civil Rights Attorney’s Fees Act of 2026 would address a practical problem for civil rights and free speech groups suing public universities for the denial of free speech. When universities lose at the preliminary injunction stage, advocates cannot recoup costs and fees. The bill would allow that recovery and, as a result, level the playing field with universities, which can tap public funds to litigate these cases.

We have discussed many cases where universities spend millions in public funds to support anti-free speech policies and actions. A relatively small group of public interest groups have waged these battles with a collection of individual attorneys. Universities know that a case ending in a preliminary injunction will not result in fees or costs being paid to the victorious litigant. This bill would change that.

In my book The Indispensable Right: Free Speech in an Age of Rage, I suggest various ways that Congress could reinforce free speech rights, particularly in higher education. This is precisely the type of measure that can help tangibly support that effort.

The problem that we have faced in the free-speech community is that faculty and administrators have created an echo chamber in higher education by purging departments of dissenting voices, particularly conservative and libertarian faculty. Once in control of these universities, officials proceeded to tap into public funds to not only reinforce this ideological orthodoxy but also finance litigation.

Universities routinely lose these free speech cases. However, they know that cases that end at the preliminary injunction stage will often deny litigants the ability to recover fees or costs. In Lackey v. Stinnie (2025), a divided Supreme Court ruled that plaintiffs who received only a preliminary injunction before their case became moot were not “prevailing parties” eligible for fees under federal law.

The result is the use of public funds to drain the resources of free speech groups and advocates. It also adds a coercive element as universities pressure advocates to settle cases by noting that, if they secure a P.I., the university could fold and leave them without any recovery. They are literally using the public coffers to fight against free speech rights supported by the vast majority of citizens.

Congress can close this loophole and level the field. It will not transform higher education, but it will help guarantee that dissenting faculty and students have a fair chance against state universities.

The legislation is also important because, as I discuss in The Indispensable Right and prior columns, public universities are the final line of defense for free speech. Since the First Amendment applies directly to these universities, free-speech advocates have a greater ability to defend free speech and minority viewpoints at these schools. This can offer students an alternative to private universities as they seek environments with a modicum of tolerance (even if forced) for opposing viewpoints.

It is time to pass the Restoring Civil Rights Attorney’s Fees Act of 2026.

Jonathan Turley is the best-selling author of “Rage and the Republic: The Unfinished Story of the American Revolution.”