Policymakers | Freedom of Expression

Free Speech Laws Mushroom in Wake of Campus Protests

INSIDE HIGHER ED   |  September 16, 2019 by Jeremy Bauer-Wolf

Free speech advocates were enraged when Middlebury College students in 2017 drowned out a planned talk by the author Charles Murray, whose writings many consider racist.

The students’ chants prevented Murray from speaking. Some protesters surrounded and jumped on his car after he was ushered out of the lecture hall.

Conservative lawmakers, academics and other observers pointed to that incident and several similar shout-downs of other controversial speakers at various campuses as proof that college administrators needed to beef up their free expression policies.

Lawmakers, mainly Republicans, from states all over the country have subsequently intervened in matters of free speech in academe by proposing and helping to pass legislation that makes clear students can’t interfere with the speech of their peers or of visitors on campus.

Civil liberties advocates say states are likely to keep adopting such legislation, especially leading up to and following the 2020 presidential election, when political demonstrations will likely heat up on campuses. They are concerned that some of the proposed laws may be too prescriptive, particularly those that force colleges to carry out certain mandatory punishments for free speech infractions.

“I think we and other organizations are trying to help craft language for colleges that uses a lighter touch,” said Joe Cohn, legislative and policy director for the Foundation for Individual Rights in Education, or FIRE, a civil liberties watchdog group that defends the rights of college students and faculty members.

A legislative proposal pending in the Wisconsin Legislature is far from a light touch. It requires University of Wisconsin system colleges to adopt certain rules on free speech, including suspending for at least a semester students who have twice been found responsible for “interfering with the expressive rights of others.” Students who violate free speech policies three times must be expelled.

It is one of the most aggressive proposals in the country. GOP lawmakers first floated the bill in 2017. The State Assembly approved it, but it failed in the Senate.

Some students and others in the university system see the bill as unnecessary and note that the Wisconsin Board of Regents in 2017 approved a free speech policy with the exact same sanctions as in the bill.

Supporters of the proposed legislation apparently don’t believe the system policy is sufficient.

“Free speech is a foundational part of our constitution. Unfortunately, across the country and here in Wisconsin, we have seen examples of free speech being suppressed on our university campuses,” Republican state senator Chris Kapenga, the bill’s sponsor, said in a written statement. “Freedom of speech leads to freedom of thought, but all too often universities are teaching students what to think instead of how to think. This bill affirms the ability to engage in the free exchange of ideas without the fear of intimidation or disruption.”

Governor Tony Evers, the former Wisconsin state superintendent and a Democrat, voted against the policy two years ago and is unlikely to endorse the new legislation.

Cohn said that FIRE does not back mandatory consequences for students because they tend to be overly broad. If students participate in a lawful protest but only one or two decide to disrupt a speaker, it may be unclear if an institution has to punish an entire group. Harsh consequences also dissuade students from protesting at all. Even the fear of being punished could chill free speech, Cohn said.

The proposed legislation also forces Wisconsin university system representatives not to take or state positions on any matters of public policy, a provision that puzzled and irked critics as the proposal went through the legislative process two years ago. Administrators routinely speak out and critique policy matters that relate to their budgets and often participate in public policy discussions as experts.

“It might make sense to not discuss whether we should be going to war in Afghanistan, but free speech itself is a controversial issue, and I don’t want them to be neutral on that,” Cohn said.

The Wisconsin bill is largely modeled on a template created in 2017 by the Goldwater Institute, a libertarian think tank,  following incidents such as the one that occurred at Middlebury and a violent skirmish at the University of California, Berkeley, involving protests against the controversial speaker and writer Milo Yiannopoulos. University administrators said the protesters who threw rocks and fireworks at police and started a fire on the campus were not students or affiliated with the institution in any way. But the violence was widely reported by national news outlets and gave many people the impression that Berkeley students were aggressively intolerant of people whose views they oppose.

The episode even drew the attention of President Trump, who threatened to cut federal funding for the university. Trump mischaracterized Berkeley’s response to Yiannopoulos, claiming university officials had not given him permission to speak beforehand when they in fact had. Two years later, Trump signed an executive order mandating all colleges comply with First Amendment and free speech requirements.

With Middlebury and Berkeley grabbing headlines and prompting national debates about free speech on college campuses, the Goldwater Institute seized the opportunity to shop their bill among lawmakers across the country, Cohn said.

At least 17 states have since enacted free speech laws, including eight states this year. Alabama and Texas are two of the most recent states to do so.

The American Council of Trustees and Alumni prefers that governing boards and administrators develop free speech policies, said Armand Alacbay, the association’s vice president of trustee and government affairs.

The ideal process is for lawmakers to signal they want colleges to work on these issues and for university leaders to work out the specifics of such rules, Alacbay said.

“Laws should only be lightly prescribed,” he said.

Not every law follows the Goldwater model entirely, but many of the laws contain elements of it. Notably, the legislation almost always prohibits what are known as “free speech zones,” areas of campus designated for students to protest or pass out literature. These zones have historically not passed legal muster at public universities, where administrators’ First Amendment obligations prevent them from severely limiting when and where students can exercise their free speech rights.

Alabama’s public colleges are no longer allowed to quarantine students to free speech zones under the new law. It also tries to rein in any overly broad harassment policies that might be in place. Colleges nationwide have been accused of having rules that prohibit protected speech, even speech considered rude or offensive.

The Texas law, which also declares that all outdoor spaces on public campuses are public forums, forbids colleges from assessing extra security fees for speakers who might be controversial.

College administrators have done a “miserable job” at protecting free speech rights, to the point that professors often feel unnerved at “saying the wrong thing” in the course of their jobs, said Frederick M. Hess, director of education policy studies at the American Enterprise Institute, a conservative think tank.

Hess said faculty members often fear giving reading assignments that students may find offensive or using a phrase that might come off as racist. At least two professors this year have come under fire for using the N-word in an academic context.

“I don’t think these free speech bills solve anything by themselves, but they are a symptom that many people feel that something is very wrong,” Hess said.

But the legislation tends to miss some of the free speech issues that haven’t attracted headlines, said Frank LoMonte, director of the Brechner Center for Freedom of Information at the University of Florida.

For example, college athletes often are told what they can’t post on social media. This sort of gag order infringes on their First Amendment rights, but the problems aren’t being reported on by the news media. As a result, legislators aren’t trying to address them, LoMonte said.


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