More States Are Passing Campus Free-Speech Laws. Are They Needed, or Is the Crisis Talk Overblown?

Calvin Mattheis, Knox News, USA Today

When Gov. Greg Abbott of Texas signed a law last month mandating free speech across public-college campuses, he recorded himself shaking his finger at the camera and putting potential censors on notice. “Shouldn’t have to do it. First Amendment guarantees it. Now, it’s law in Texas,” the Republican intoned as he pulled out his pen.

Weeks earlier, another governor wasn’t so accommodating when a free-speech bill landed on his desk. In May, Montana’s governor, Steve Bullock, a Democrat running for president, vetoed that measure, calling it “a solution in search of a problem.”

Just as Abbott later pointed out, he wrote, the First Amendment already provides the basic protections. “These rights do not lessen in any way when a student walks onto a university campus,” he wrote.

The bill, Bullock wrote, “appears to be driven by recent headlines accusing public universities of free-speech restrictions around speakers who visit their campuses.” He said university leaders across the state had assured him that their policies “are entirely consistent with — and, indeed, promote — our constitutional values of free speech and free assembly.”

Still, more than a dozen states are now extending such protections to public-college campuses.

So what gives? If free speech is guaranteed under the First Amendment, why are so many states in a rush to enact bills doubling down on those protections? Are they, as one skeptic suggests, largely symbolic gestures aimed at appealing to conservative voters who feel their views are being quashed in academe? Or are they a necessary check on campuses that are going overboard in shielding students from views that offend them?

At least 16 states have approved such laws, which proponents say are needed to prevent controversial speakers from being disinvited or shouted down by protesters. Many of the laws also aim to ensure that an entire campus — not just a designated free-speech zone — is open to demonstrations and protests.

Skeptics, however, worry that some of the laws interfere with colleges’ autonomy and could have the unintended consequence of squelching all forms of protest.

Among the measures’ most powerful backers is the Foundation for Individual Rights in Education, or FIRE, which works with legislators to shape and fine-tune their laws.

“Even when the bills don’t pass, it puts schools on notice that legislators are watching,” said Joe Cohn, FIRE’s legislative and policy director. “It’s a powerful incentive for schools to snap into shape.”

‘Red Meat for the Base’

But some provisions go too far for the foundation. Mandatory expulsion for students who shout down speakers, for instance, risks trampling on the free-speech rights of the protesters, it cautions. When such punishments are set by legislators, campus administrators may apply them rigidly, without assessing individual culpability, meaning that someone participating in a group protest is treated in the same way as someone who plays a key role in intentionally disrupting an event.

President Trump wants colleges to know the feds are also watching. In March he issued an executive order requiring colleges to support free speech if they want to get federal research funds. Critics have questioned how federal officials will determine if speech is being protected, and asked whether the requirement will simply burden colleges with another layer of reporting duties.

State laws protecting free speech raise similar issues. “The big question for me is whether or not this legislation is essentially a kind of red meat for the base,” said Michael C. Behrent, a member of the American Association of University Professors’ Committee on Government Relations.

“Is it just feel-good legislation for conservatives to get mileage around a culture-war issue?” added Behrent, an associate professor of history at Appalachian State University, in North Carolina. “If anything, the main effect will likely be to remind campuses to follow the commitments they already have.” Most are already well aware, he said, of their First Amendment obligations.

Even Trump hinted as much when he said, in 2018, that “the vast majority” of people on college campuses supported free speech and that talk of a crisis was “highly overblown.”

In a report for the AAUP, Behrent wrote that campus free-speech advocates speak in a way that seems to invoke core AAUP principles: “They argue that colleges and universities should not shelter students from upsetting ideas, that administrators should not cancel engagements by speakers who might offend campus constituencies, and that institutions of higher education must be protected as spaces for vigorous, albeit civil, disagreement.”

But rather than a commitment to academic principles, the impetus behind the legislation, he said, is “brazenly political.”

His own state of North Carolina became, in 2017, the first to enact a free-speech bill modeled on a proposal by the Goldwater Institute, a conservative and libertarian think tank.

Among other things, it calls for strict disciplinary measures against people found to have violated the free-speech rights of others, expects colleges and universities to be neutral on public issues, and instructs the state’s systemwide Board of Governors to report each year on the state of campus free speech.

Many of the state laws take aim at “free-speech zones,” designated places on a campus where students can protest, presumably in a safer, less disruptive way than opening the entire campus to demonstrations.

“The idea of a ‘free-speech zone’ might sound appealing in theory,” FIRE said in a post on its website. “But in practice, these zones function more like free-speech quarantines, banishing student and faculty speakers to outposts that may be tiny, on the fringes of campus, or (frequently) both.”

‘Suing Your School 101’

The proportion of colleges that limit demonstrations and similar activities to free-speech zones has dropped from about one in six in 2013 to one in 10 in 2018, according to a FIRE survey of public and private two- and four-year colleges.

Pierce College, part of the Los Angeles Community College District, agreed last year to open the main parts of its campus to protests and demonstrations after a student who was handing out Spanish-language copies of the U.S. Constitution sued the college. The student, who was also seeking recruits for a campus chapter of Young Americans for Liberty, said his First Amendment rights had been violated when he was told he had to stay within a 616-square-foot “free-speech” area, which a local newspaper described as roughly the size of three parking spots.

Some of the state bills seek to make it easier for people who feel their rights have been violated to sue their colleges or universities, a provision that has many campuses worried. Kentucky’s free-speech law, for instance, allows people to sue for up to $100,000.

Fears that such laws would open a floodgate of lawsuits haven’t materialized, but some campus officials remain worried. A few lawsuits have been filed against colleges that canceled talks by white supremacists like Richard B. Spencer. Meanwhile, Turning Point USA, a conservative political-action group, was widely reported to have titled a conference breakout session “Suing Your School 101: Knowing and Defending the First Amendment on Campus.”

Proponents of added free-speech protections say they can close a “graduation loophole” that, in theory, could allow a college or university to drag out a case until a student plaintiff graduates and no longer has standing to sue.

To address that potential problem, some free-speech laws require a court to award financial damages if plaintiffs can prove their rights were violated. Courts would have to keep the cases open even if the plaintiffs had graduated, FIRE’s Cohn said.

Mildred García, president of the American Association of State Colleges and Universities, agrees with those who consider talk of a free-speech crisis overblown. When she was president of California State University at Fullerton, many professors and students urged her to call off a speech by the conservative provocateur Milo Yiannopoulos.

The costs, and risks, of such an appearance are now well known. The University of California at Berkeley spent around $800,000 in security costs to enable Yiannopoulos to speak for 20 minutes in 2017 and a total of some $4 million for a series of provocative speeches that fall.

Despite the opposition to Yiannopoulos’s appearance at Fullerton, García said she couldn’t cancel the speech. Instead, she beefed up the police presence with helicopters and sharpshooters, and the protests were largely contained. When universities bend over backward to accommodate controversial speakers, “you’ll never hear about it because he didn’t get the response he wanted,” she said.

“In all of the universities I’m familiar with, there is a marketplace of ideas, and we really protect free speech,” she said. “That’s what makes a university.”

Katherine Mangan writes about community colleges, completion efforts, and job training, as well as other topics in daily news. Follow her on Twitter @KatherineMangan, or email her at katherine.mangan@chronicle.com.