Why do we need another law to protect free speech when we already have the First Amendment?

 

Free speech is threatened on college campuses around the country. Colleges have:

 

  • Disinvited speakers because of campus protests, preventing some ideas from even being heard on campus;
     

  • Created so-called “free speech zones,” which are often small, hard-to-find locations on campus and the only places individuals can distribute literature or demonstrate;
     

  • Adopted restrictive speech codes that limit the topics and locations for individual or group demonstrations.

 

While the U.S. Constitution may say we have the right to speak freely, colleges are limiting expression on their campuses. State lawmakers should use our proposal to re-establish the primacy of ideas and free expression at public colleges and universities.

 

Our proposal calls on public college officials to establish a position statement in favor of free speech and make this statement available to everyone in the campus community from the moment a student steps on campus for freshman orientation.

 

All of the other provisions in our bill are built on top of a school’s commitment to protecting individuals’ right to express themselves as long as they do not interfere with others’ ability to do so.

 

Can students protest on campus under this bill?

 

Yes. Our model legislation protects all forms of free expression, saying, “Any person lawfully present on campus may protest or demonstrate there.”

 

What the bill prohibits are violent or belligerent protests that silence other viewpoints. Specifically, “demonstrations that materially and substantially infringe upon the rights of others to engage in or listen to expressive activity shall not be permitted and shall be subject to sanction.”

 

Our model helps public university systems create a safe, lawful way for individuals and groups to distribute materials, protest, or demonstrate on campus while not interfering with others’ right to do the same.


 

Is it constitutional for universities to punish violent or belligerent protests?

 

Yes. The violent activity regulated by the model legislation is not protected speech at all—it is conduct designed to substantially and materially silence speech. Blocking an auditorium or physically assaulting a professor are not expressive activities protected by the First Amendment—they are crimes.

 

Colleges also have both a legal right and a moral obligation to sanction “shoutdowns,” continuous chanting that prevents a speaker from being heard by those who wish to do so.

 

Our bill is inspired by simple schoolyard etiquette: Take turns. In other words, speak your mind, and let others have a turn to speak theirs.

 

In cases where protesters are expressing a viewpoint—chanting a message or holding up signs that block a speaker—“[e]ven protected speech is not equally permissible in all places and at all times.”1 The First Amendment allows “reasonable time, place, or manner restrictions,” so long as they do not discriminate based on the content of the speech and are designed to be narrow in their impact.2 Rules designed to allow speakers to be heard by those who wish to do so are precisely the sort of reasonable regulation the Court permits.

 

Our bill is even more protective of protesters than the minimum standards laid down by the courts, allowing universities to regulate speech in public places only as a last resort when “necessary to achieve a compelling governmental interest.”

 

If a college aspires to be neutral on the public policy issues of the day, can professors still decide what to teach in the classroom?

 

Yes. Our model legislation is aimed at the university at the institutional level, not the teachers or students in the classroom. It says, “the institution itself should attempt to remain neutral, as an institution, on the public policy controversies of the day, except insofar as administrative decisions on such issues are essential to the day-to-day functioning of the university.”

 

The use of “attempt” is intentionally flexible, and the bill explicitly recognizes the discretion of university trustees and administrators to take positions on public policy issues when they deem it essential to the day-to-day functioning of the university.

 

The principle of institutional neutrality works to safeguard free speech for students and faculty by minimizing pressure from an official university line. The absence of an official institutional orthodoxy leaves students and faculty free to express their opinions on controversial issues without fear of reprisal from the university.

 

Professors can teach as they see fit, without fear of running afoul of an official university position. The neutrality provision also helps protect taxpayers from subsidizing speech with which they disagree.

Instead of rigidly mandating any particular application of the neutrality idea, our model simply states the principle, then calls on a committee of university trustees to weigh in on the administrative handling of this issue in an advisory annual report.

What happens when a student violates someone else’s free speech rights on campus?

 

University officials are responsible for documenting such an offense and may choose—but are not required if it is a first offense—to impose consequences such as suspension or expulsion.

 

Universities already have this authority, but administrators have routinely chosen to enforce only minor penalties—or no penalties at all—for students who violate the free expression rights of others, even for repeated offenses. Therefore, after students are found guilty of a second offense, our model requires universities to levy a mandatory disciplinary sanction of suspension for one year or expulsion, while guaranteeing robust due process protections in any case involving free expression.

 

Yale’s famous Woodward Report of 1974, the classic statement on campus free speech, actually demanded that students who shouted down visiting speakers be suspended or expelled on a first offense. Our model legislation gives individuals the opportunity to learn from their mistakes and understand the value of protecting everyone’s free speech rights.

 

Why should a student face a more serious punishment for interfering with someone else’s rights a second time?

 

When an individual infringes on someone else’s right to free expression, such activity can result in violence and physical harm. It also infringes on everyone else’s right to hear the speaker’s words.3 Universities must protect both the physical safety of students and faculty and the rights of everyone lawfully on campus to express themselves.

 

Repeat offenders must be sanctioned, via temporary or permanent removal from the campus community. Otherwise, students will have no incentive to cease the oppressive conduct and will be free to silence others without fear of consequence. A repeat offense indicates that an individual has not truly learned from the first experience that silencing others is wrong. Our model legislation requires that students be informed at freshman orientation of the penalties for a second offense. This will have a significant deterrent effect.

 

What’s the point of “due process” in hearings on student discipline?

 

Individuals who block someone else’s ability to speak on campus often do so without consequences.

 

Our model bill is designed to provide recourse to individuals when they are silenced. Due process allows individuals accused of an infraction the chance to respond to the charges against them, receive a fair hearing, and appeal. These essential safeguards ensure students who are accused of silencing speech are presumed innocent and afforded a fair opportunity to present their side of the story. Our model gives students accused of silencing speech the right to:

 

  • Receive advance written notice of the charges;

  • Review the evidence in support of the charges;

  • Confront Present a defense;

  • Call witnesses;

  • A decision by an impartial arbiter or panel; and

  • An appeal.


In the most serious cases, when suspension for longer than 30 days or expulsion are potential penalties, students are entitled to all of the above, plus the right assistance of counsel.

 

Does this bill give colleges more authority to suspend or expel students?

 

No. This model legislation does not give public universities any more authority over student conduct than state law already allows. This model directs public university governing boards to develop policies to guide the universities’ enforcement of their existing authority to better protect the free speech rights of anyone lawfully on campus.

 

Does this bill just protect conservative speakers on campus?

 

No. This model bill protects the right of anyone lawfully present on campus to speak, protest, or demonstrate—regardless of his or her political message. Our bill has the same implications for progressives as it does for conservatives.

 

At Evergreen State College in Washington state, a self-professed liberal professor disagreed with a suggestion that white members of the campus community leave campus for a day, and in response, students interfered with his teaching and even threatened his life.

 

Our bill would require public university officials to intervene and even discipline those students. The individuals guilty of such behavior would be subject to the same sanctions as students who tried to block the entrance to the venue on the California State University Los Angeles campus where conservative speaker Ben Shapiro was due to deliver remarks in February 2016.

 

Can the university ever restrict speech or expression on campus?

 

Yes. The model legislation explicitly “does not prohibit professors or other instructors from maintaining order in the classroom.” Outside the classroom, university officials can set reasonable viewpoint- and content-neutral restrictions on the time, place, and manner of expression, if university policies are:

 

  • Clear and published in advance;

  • Necessary to achieve a compelling governmental interest;

  • The least restrictive means of furthering that compelling governmental interest;

  • Leave open ample other opportunities to engage in the expressive conduct; and

  • Provide for spontaneous assembly and distribution of literature.

FREQUENTLY ASKED QUESTIONS

1.   Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 799 (1985).

2.   Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984). 
 

3.   Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 867 (1982) (“[T]he right to receive ideas follows ineluc- tably from the sender’s First Amend- ment right to send them.”).