As a Free-Speech Bill Advances in Wisconsin, Some Fear a Chilling Effect

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A coordinated effort by state legislatures to make it harder for protesters to shut down controversial speakers on college campuses took a step forward in Wisconsin this week.

The state’s Assembly passed the Campus Free Speech Act, which would, among other things, mandate a semester of suspension for any student “who has twice been found responsible for interfering with the expressive rights of others.”

The bill, like many of its counterparts around the country, is based on model legislation designed by the Goldwater Institute, a conservative think tank. And its improved prospects for passage (it must be approved by the Republican-controlled Senate and signed by Gov. Scott Walker, who has said he supports it) has made some observers uneasy. For example: How could a campus determine who violated whose free-speech rights if two students shouted over each other? And will legislative intervention in campus affairs have the unintended consequence of hindering free speech?

The proposed legislation creates a gray area that Kevin Kruger, president of the student-affairs association Naspa, said could create a “chilling effect” on students.

“Any attempts to limit free expression in any way is a really dangerous precedent,” Mr. Kruger said. “We’ll potentially create a chilling effect on the opportunity for individuals to reasonably protest or express their views about potential speakers on either side, conservative or liberal.”

Most universities already have policies in place that outline the boundaries within which a student can exercise his or her freedom of speech — which, regardless of political leaning, include Supreme Court-backed restrictions on violent protests or speech that incites violence.

But in addition to mandating student punishment, Wisconsin’s free-speech bill would also require the University of Wisconsin system to remain neutral on “public policy controversies” and provide a public report to state legislators and the governor that included details of any barriers or disruptions to free speech on campus, along with records of disciplinary action that followed such infringements.

Some conservatives who support the bill argue that it would remove any ambiguity surrounding a person’s right to speak and ensure that universities reprimand those who violate free speech.

“We have to lay down some groundwork here, and we have to create a behavioral shift so everyone can be heard and has the right to express their views,” Rep. Jesse Kremer, who sponsored the Wisconsin bill, told the Associated Press.

Targeting Activists?

Though the bill states that students are allowed to protest and demonstrate on campus, it remains unclear how lawmakers are distinguishing between protests protected by the First Amendment and protests that “interfere with the expressive rights of others.” And with a limit on the number of times a student can infringe on free speech before being punished, skeptics are concerned that the law’s ambiguity could make politically active students become targets of those who would file frequent complaints against them for violating free speech.

Gary Pavela, a national consultant on legal issues in higher education, said a lot depends on how much autonomy an institution is afforded when deciding what counts as a punishable infringement of freedom of expression. If lawmakers interfered with how an institution responded to violations of free speech based on its university policy, he said, it could become a case of micromanagement that violates institutional academic freedom.

As written, Mr. Pavela said, Wisconsin’s bill has the potential to do more harm than good. “There’s already significant movement on college campuses to protect freedom of expression, prevent disruption,” he said. “If anything, the legislators getting involved at this point could confuse matters rather than clarify them.”

Several other states have considered, or are considering, similar legislation. A bill introduced in Michigan’s Senate would similarly require public universities to punish students who twice disrupted speakers on campus, while the Texas Senate approved a bill that bars “free-speech zones” on public campuses. A lawmaker in California, where protests at the flagship campus in Berkeley led to the cancellation of a speech there by Ann Coulter, also introduced a bill that would bar the disinvitation of speakers.

While it’s uncertain how many of the free-speech bills — including Wisconsin’s — will pass, Mr. Kruger said such efforts would set a dangerous precedent for how government, in an effort to protect speech, would actually limit speech.

“You have this big stick that the states can wield within their state institutions to kind of comply with some policies that may not actually be in the best interest of their students,” he said. “It’s messy, and no state law is going to erase the fact that we have fairly contentious debates going on on campus.”