Campus Free Speech Legislation Proposed—Finally

 

“The Campus Free Speech Act gives the First Amendment bite,” said Jim Manley, Senior Attorney at the Goldwater Institute and a co-author of the Act and report. “Where this bill becomes law, there will be real consequences for anyone—including protestors, administrators, or professors—who tries to prevent others from expressing their opinions. The legislation also provides robust due process protections for anyone accused of trying to silence speech.”

Following legislation that was passed in 2016 in Arizona regarding free speech on campuses, we now have hope of a state-level laws protecting free speech at public universities. The law, developed by the Goldwater Institute with the help of Stanley Kurtz at the Ethics and Public Policy Center, was based on the University of Chicago’s 1967 Kalven Report and the 2015 Stone Report .

The legislation proposed is comprehensive and addresses the following areas:

  • It creates an official university policy that strongly affirms the importance of free expression, nullifying any existing restrictive speech codes in the process.
  • It prevents administrators from disinviting speakers, no matter how controversial, whom mem­bers of the campus community wish to hear from.
  • It establishes a system of disciplinary sanctions for students and anyone else who interferes with the free-speech rights of others.
  • It allows persons whose free-speech rights have been improperly infringed by the university to recover court costs and attorney’s fees.
  • It reaffirms the principle that universities, at the official institutional level, ought to remain neutral on issues of public controversy to encourage the widest possible range of opinion and dialogue within the university itself.
  • It ensures that students will be informed of the official policy on free expression.
  • It authorizes a special subcommittee of the university board of trustees to issue a yearly report to the public, the trustees, the governor, and the legislature on the administrative handling of free-speech issues.

Although this legislation is proposed only for public universities, its impact on private universities is likely.

On Tuesday, April 4, Stanley Kurtz will appear as a witness at a hearing before the Subcommittee on the Constitution and Civil Justice of the House Judiciary Committee:

My testimony will focus on the question of why, despite the many public condemnations of campus assaults on free speech, the problem continues to worsen. Following that, I will outline possible solutions, touching on the state-level model legislation offered by the Goldwater proposal, as well as the plan I’ve outlined for conditioning federal funding on the protection of campus free speech.

My hope is that the legislation model will be well-received. Our college students have no understanding of the tenets of free speech, judging it with a leftist ideology that condemns anything that doesn’t fit their agenda; with this legislation, they will be taught what free speech is and told they will have to abide by it. Protestors have been politely asked to refrain from demonstrating or attacking speakers at campuses; they will now be penalized by law, depending on the seriousness of their infractions. Professors have been reticent to criticize or be proactive regarding actions against controversial speakers; they will now be held accountable for upholding the universities free speech mission. And the university administrators who have ranged from preventing controversial speakers from coming, to wringing their hands when students protest, will be required to report annually on free speech issues that have arisen.

In spite of all these points, I’m ambivalent about another law possibly being passed, even at the state-level. Is that action good for this country? Do you think the states will approve it? Is that the only way we can ensure that freedom of speech is honored by the next generation?

Still, this may be the first step in shaking up the country and putting universities on notice that free speech is still upheld and celebrated in this country.

Your thoughts?

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  1. Judithann Campbell Member
    Judithann Campbell
    @

    I don’t understand why this law is necessary ; I though free speech was enshrined in the Constitution. But somebody has to do something; we have to fight back against those attacking free speech somehow.

    • #1
  2. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    Judithann Campbell (View Comment):
    I don’t understand why this law is necessary ; I though free speech was enshrined in the Constitution. But somebody has to do something; we have to fight back against those attacking free speech somehow.

    Any thoughts on other ways to address it, Judithann? The campuses are so permeated with Leftists, up and down, that I don’t know what else can be done.

    • #2
  3. Judithann Campbell Member
    Judithann Campbell
    @

    Susan Quinn (View Comment):

    Judithann Campbell (View Comment):
    I don’t understand why this law is necessary ; I though free speech was enshrined in the Constitution. But somebody has to do something; we have to fight back against those attacking free speech somehow.

    Any thoughts on other ways to address it, Judithann? The campuses are so permeated with Leftists, up and down, that I don’t know what else can be done.

    I don’t know what else can be done either. I am glad that someone is doing something. I think that we should also push for children to be better educated about the Constitution and the ideals of our nation’s founding. I never thought that we would have to defend the idea of free speech, but obviously we do.

    • #3
  4. I Walton Member
    I Walton
    @IWalton

    We don’t need it and it will probably have unfortunate unanticipated consequences. Universities that get Federal funds probably are violating the constitution.  We need to just not give any Federal money to universities that have these kinds of administrations and try to convince States to do the same, not send our kids to such places, and broadly disseminate information about the Universities run by spineless liberals who allow these little fascists snowflakes to dominate them.   Just cut them off, and do not give donations tax free status as that’s a Federal subsidy and also unconstitutional.

    • #4
  5. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    I Walton (View Comment):
    Just cut them off, and do not give donations tax free status as that’s a Federal subsidy and also unconstitutional.

    Works for me! It is bizarre, isn’t it, that an institution is receiving Federal funding even though it’s defying the Constitution?! I think as @judithanncampbell says, we need to start seriously teaching the Constitution early, so kids don’t just get the information, but understand that we’re talking about their lives in this country.

    • #5
  6. DudleyDoright49 Inactive
    DudleyDoright49
    @DudleyDoright49

    Judithann Campbell (View Comment):
    I don’t understand why this law is necessary ; I though free speech was enshrined in the Constitution. But somebody has to do something; we have to fight back against those attacking free speech somehow.

    The first amendment states “The congress shall make no law……..”but does not stipulate that XYZ University shall make no rule.  This is where a remedy comes in the form of statutory law, based on the constitutional framework.  I hope they craft these bills carefully so as to avoid as many pitfalls and unintended consequences as possible.

    • #6
  7. Kate Braestrup Member
    Kate Braestrup
    @GrannyDude

    Isn’t it sort of like the Civil Rights Act—a law that says “and by the way, the 14th Amendment applies to these people too?”

    • #7
  8. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    Kate Braestrup (View Comment):
    Isn’t it sort of like the Civil Rights Act—a law that says “and by the way, the 14th Amendment applies to these people too?”

    That’s a very interesting point, Kate. A few people have mentioned the possible unintended consequences from this type of law, but certainly the Civil Rights Act had those, too. So would you support states choosing to pass this type of law. I’m still torn.

    • #8
  9. ctlaw Coolidge
    ctlaw
    @ctlaw

    Two words: campus carry.

    • #9
  10. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    ctlaw (View Comment):
    Two words: campus carry.

    That sounds intriguing, ct. Are you suggesting we shoot protestors? ;-)

    • #10
  11. ctlaw Coolidge
    ctlaw
    @ctlaw

    Susan Quinn (View Comment):

    ctlaw (View Comment):
    Two words: campus carry.

    That sounds intriguing, ct. Are you suggesting we shoot protestors? ?

    Violent protestors, yes. Peaceful protestors, no. Pretty simple.

    • #11
  12. Kate Braestrup Member
    Kate Braestrup
    @GrannyDude

    Susan Quinn (View Comment):

    Kate Braestrup (View Comment):
    Isn’t it sort of like the Civil Rights Act—a law that says “and by the way, the 14th Amendment applies to these people too?”

    That’s a very interesting point, Kate. A few people have mentioned the possible unintended consequences from this type of law, but certainly the Civil Rights Act had those, too. So would you support states choosing to pass this type of law. I’m still torn.

    I don’t know either, Susan. I’m not sure it would be a bad thing to have some serious discussion around whether the First Amendment needs reinforcement, and introducing legislation often provokes such discussion and might embarrass colleges into shaping up without changes in law?

    It strikes me that allowing freedom of speech is not a natural thing for human beings. Tolerance of different opinions isn’t easy for us, and if America’s youth is not being trained in the discipline required for genuine acceptance of intellectual and ideological diversity,  a teaching moment may have to be seized.

    • #12
  13. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    Kate Braestrup (View Comment):
    I don’t know either, Susan. I’m not sure it would be a bad thing to have some serious discussion around whether the First Amendment needs reinforcement, and introducing legislation often provokes such discussion and might embarrass colleges into shaping up without changes in law?

    It strikes me that allowing freedom of speech is not a natural thing for human beings. Tolerance of different opinions isn’t easy for us, and if America’s youth is not being trained in the discipline required for genuine acceptance of intellectual and ideological diversity, a teaching moment may have to be seized.

     I like very much the idea of introducing the legislation to put colleges on alert that legislation might be coming their way. Maybe for some of them this possibility would be incentive enough for them to do the right thing. They should be embarrassed! I would much rather see the colleges respond on their own, as difficult as they might find it. But I’m not optimistic, unless conservatives on campus become more vocal and active.

    • #13
  14. ctlaw Coolidge
    ctlaw
    @ctlaw

    I do not think the legislation does enough to address heckler’s veto issues. It does not appear to address systematic failures by universities to discipline violent students and apply force to, arrest, and criminally prosecute both them and violent outsiders. Remember, most state universities (and many private ones) maintain their own police forces (not just campus security) that have primary jurisdiction.

    Section 1.7 seems lukewarm in this regard: “7. The policy shall include a range of disciplinary sanctions for anyone under the jurisdiction of the institution who interferes with the free expression of others.”

    I would like to see express language addressing handling of criminal matters and regarding failure to enforce.

     

    • #14
  15. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    ctlaw (View Comment):
    I do not think the legislation does enough to address heckler’s veto issues. It does not appear to address systematic failures by universities to discipline violent students and apply force to, arrest, and criminally prosecute both them and violent outsiders. Remember, most state universities (and many private ones) maintain their own police forces (not just campus security) that have primary jurisdiction.

    Section 1.7 seems lukewarm in this regard: “7. The policy shall include a range of disciplinary sanctions for anyone under the jurisdiction of the institution who interferes with the free expression of others.”

    I would like to see express language addressing handling of criminal matters and regarding failure to enforce.

    I see your point, ct. I guess I would only say is that this is just a start. If it goes forward, I would hope that the disciplinary actions would be more explicit for legal violations, particularly violent acts; otherwise the universities will soft pedal any response. I think, too, that the writers of the proposal were not trying to strong arm the universities too much, but that might be exactly what’s required. Thanks for sharing your legal perspective.

    • #15
  16. DudleyDoright49 Inactive
    DudleyDoright49
    @DudleyDoright49

    ctlaw (View Comment):
    I do not think the legislation does enough to address heckler’s veto issues. It does not appear to address systematic failures by universities to discipline violent students and apply force to, arrest, and criminally prosecute both them and violent outsiders. Remember, most state universities (and many private ones) maintain their own police forces (not just campus security) that have primary jurisdiction.

    Section 1.7 seems lukewarm in this regard: “7. The policy shall include a range of disciplinary sanctions for anyone under the jurisdiction of the institution who interferes with the free expression of others.”

    I would like to see express language addressing handling of criminal matters and regarding failure to enforce.

    The biggest problem in my opinion is that administrators have no backbone.  All the laws you can think of will not bring back academic discipline.

    • #16
  17. Hypatia Inactive
    Hypatia
    @Hypatia

    Judithann Campbell (View Comment):
    I don’t understand why this law is necessary ; I though free speech was enshrined in the Constitution. But somebody has to do something; we have to fight back against those attacking free speech somehow.

    Yes, it’s somewhat strange, especially since whatever these universities do is “state action”,  so they could already be sued for civil rights violations of the First Amendment.

    It’s the same problem as we have with religion.  We can guarantee everyone freedom OF religion.  But if we do that, we can’t possibly also guarantee everyone freedom FROM religion., because if adherents of one creed are proclaiming and celebrating their faith, other people are necessarily going to be exposed to the spectacle.

    What the Lefty students and the professional agents provocateurs among them want is freedom FROM speech.

    This legislation will soon run afoul of the First Amendment  for infringing on the free-speech rights of the “no forum” factions. I think all state schools could constitutionally do is focus exclusively on  control of behavior, not speech.  There could be content-neutral regulations setting up protest zones a certain distance away from the venue of the unpopular speech, like there are in other public spaces.  You can carry  a sign, and yell at people as they enter the building, but you can’t go in there yourselves and make noise (no matter what you’re shouting) nor otherwise disrupt the program.  I think such regs would survive constitutional challenge, since there are other channels of communication open on campuses, such as student newspapers, leafleting, etc.

    • #17
  18. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    dudleydoright49 (View Comment):
    The biggest problem in my opinion is that administrators have no backbone. All the laws you can think of will not bring back academic discipline.

    My reading of the proposed legislation is that they are required to write a formal report on their responses to protests and violence. If they don’t respond appropriately, consequences will be imposed. I was also thinking that this kind of law could encourage administrators who really do want to do something but are concerned about the backlash may finally take action now that the law will be behind them. But the law must have teeth. Thanks for your comment, dudley.

    • #18
  19. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    Hypatia (View Comment):
    Yes, it’s somewhat strange, especially since whatever these universities do is “state action”, so they could already be sued for civil rights violations of the First Amendment.

    Good point–only no one is holding them accountable–yet.

    Hypatia (View Comment):
    This legislation will soon run afoul of the First Amendment for infringing on the free-speech rights of the “no forum” factions. I think all state schools could constitutionally do is focus exclusively on control of behavior, not speech.

    As you point out in the rest of your comment, free speech will still be allowed. And the focus will be on behaviors that actually prevent any free speech–that, I think, is the key.

    Hypatia (View Comment):
    You can carry a sign, and yell at people as they enter the building, but you can’t go in there yourselves and make noise (no matter what you’re shouting) nor otherwise disrupt the program. I think such regs would survive constitutional challenge, since there are other channels of communication open on campuses, such as student newspapers, leafleting, etc.

    I agree. Shouting people down inside the venue is unacceptable, and those people should be removed. I think your point about “other channels of communication” are spot on. Thanks.

    • #19
  20. Kyle Kirker Inactive
    Kyle Kirker
    @Kyle

    Judithann Campbell (View Comment):
    I don’t understand why this law is necessary ; I though free speech was enshrined in the Constitution. But somebody has to do something; we have to fight back against those attacking free speech somehow.

    @judithanncampbell: The Constitution doesn’t provide enforcement mechanisms. This legislation does.

    • #20
  21. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    Kyle Kirker (View Comment):
    @judithanncampbell: The Constitution doesn’t provide enforcement mechanisms. This legislation does.

    That’s an excellent point, Kyle! It will be interesting to see where this proposal goes. Thanks for chiming in.

    • #21
  22. Kyle Kirker Inactive
    Kyle Kirker
    @Kyle

    Susan Quinn (View Comment):

    Kyle Kirker (View Comment):
    @judithanncampbell: The Constitution doesn’t provide enforcement mechanisms. This legislation does.

    That’s an excellent point, Kyle! It will be interesting to see where this proposal goes. Thanks for chiming in.

    @susanquinn Thank you for the article! I sent the Goldwater Institute proposal to my state representative who sits on the State/Local government committee.

    • #22
  23. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    Kyle Kirker (View Comment):

    Susan Quinn (View Comment):

    Kyle Kirker (View Comment):
    @judithanncampbell: The Constitution doesn’t provide enforcement mechanisms. This legislation does.

    That’s an excellent point, Kyle! It will be interesting to see where this proposal goes. Thanks for chiming in.

    @susanquinn Thank you for the article! I sent the Goldwater Institute proposal to my state representative who sits on the State/Local government committee.

    Wow, I’m impressed! Democracy in action! Too often we complain but we don’t actually do something. Good for you Kyle!

    • #23
  24. Umbra Fractus Inactive
    Umbra Fractus
    @UmbraFractus

    dudleydoright49 (View Comment):

    The first amendment states “The congress shall make no law……..”but does not stipulate that XYZ University shall make no rule. This is where a remedy comes in the form of statutory law, based on the constitutional framework. I hope they craft these bills carefully so as to avoid as many pitfalls and unintended consequences as possible.

    A public university is an agent of the state government, and the 14th Amendment requires state governments to recognize the Bill of Rights.

    I’d argue the problem is that universities have forgotten that they are in fact agents of the state. I’ve seen this among my acquaintances at the University of Texas; they want access to taxpayer money, but they cry bloody murder when the legislature interferes with their operation.

    • #24
  25. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    Umbra Fractus (View Comment):
    I’d argue the problem is that universities have forgotten that they are in fact agents of the state. I’ve seen this among my acquaintances at the University of Texas; they want access to taxpayer money, but they cry bloody murder when the legislature interferes with their operation.

    Umbra, do you recall the story recently where a state representative was trying to dictate something to a university (and I think it was a Republican) and it seems like it was not well thought-out? Darn, I wish I could remember the story. My recollection is that it was an overstep, even though I agreed with the sentiments behind the action.

    I agree with you: they think they are independent actors, from the administrators to the instructors and, especially once they have tenure, don’t have to answer to anyone.

    • #25
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