State Lawmakers Seek to Protect Campus Speech, With Mixed Success

State lawmakers appear willing to protect student journalists and students’ freedom to stage campus protests, but they’re reluctant to tell colleges how to deal with speech that some deem offensive or emotionally distressing.

That’s the upshot as most states’ legislatures wrap up their annual sessions after a year marked by widespread campus unrest and intense debates over the limits of free expression in academe.

Arizona last week became the third state, after Missouri and Virginia, to adopt a law that prohibits public colleges from designating only certain portions of a campus as “free-speech zones.”

Maryland last month passed a law protecting student journalists from censorship, and similar measures remain pending in Michigan, Minnesota, and Rhode Island. Eight other states already have similar laws on the books.

In other states, however, lawmakers rejected or shelved more-expansive bills that had provisions dealing with trigger warnings — advance notices to students that instructional material might cause them emotional distress — and microaggressions, generally defined as subtle expressions of discrimination. One such measure, in Tennessee, was withdrawn by its Republican sponsor after a Democratic state representative suggested that its free-speech protections would allow the Islamic State to recruit on campuses.

“Legislative work is messy. You don’t always get through on the first try,” said Joe Cohn, who has advised the sponsors of several of the speech bills as legislative and policy director at the Foundation for Individual Rights in Education, known as FIRE.

Mr. Cohn said FIRE had found it especially difficult to promote speech protections that bump up against other rights, such as students’ right not to be subjected to discriminatory harassment. But, he added, “we are thrilled to see more and more legislatures focusing on the issue of free speech on campus.”

Zoned Out

Arizona last week adopted two related laws dealing with free speech on public-college campuses. The first prohibits colleges from designating certain campus areas as “free-speech zones” where students can stage demonstrations or distribute fliers. It holds that such colleges must regard their entire campus as a public forum, and that any restrictions they place on the time, location, and manner of speech must be reasonable, justified, narrowly tailored, and unrelated to whatever is being expressed.

The second Arizona law contains similar language in the context of outlawing, as a misdemeanor, the blocking of roads to prevent people from gaining access to a government meeting or political-campaign event. In March protesters blocked a road near Phoenix to keep people from attending a rally for Donald J. Trump, the Republican presidential candidate.

Both measures had been opposed by the Arizona Board of Regents, which oversees the state’s three public universities and denied that any had designated free-speech zones. In a statement issued in March, Jay Heiler, its chairman, said the bills “are attempting to offer a solution to a problem we do not have.”

Paradise Valley Community College, in Phoenix, does have such a free-speech zone, however. Its policy is being challenged in federal court by two students represented by the Alliance Defending Freedom, a Christian legal-advocacy group. The lawsuit accuses the college of violating the students’ First Amendment rights last fall by telling them they could not be in a free-speech zone recruiting for a conservative student organization, Young Americans for Liberty.

In light of the new statute, lawyers for both sides this week said the college appeared poised to settle the lawsuit, which had challenged its policy as unconstitutionally restrictive.

In signing the measures into law, Gov. Douglas A. Ducey, a Republican, said “part of the university experience is to be able to express diverse views, openly, without fear of retribution or intimidation — and to be exposed to other views and perspectives, even if they aren’t politically correct or popular.”

Cost Concerns

New Hampshire’s House Education Committee has shelved a similar measure, pending further study, in response to public colleges’ complaints that they already protect student speech sufficiently and that the new measure would cause them to spend more on litigation and campus security.

In testifying before the committee in January, Charles Putnam, a lawyer for the University System of New Hampshire, also argued that the measure would “undermine USNH institutions’ ability to prepare and respond to disruptive events, which will impair community safety.”

Utah lawmakers similarly deferred action on such a bill after the Utah System of Higher Education objected that the measure would increase public colleges’ administrative and legal costs. Such cost concerns also prompted lawmakers there to shelve a measure that would require public colleges to immediately respond to complaints of discriminatory harassment but define such harassment narrowly, excluding any speech protected by the First Amendment.

A 2013 study of more than 400 selective colleges by the Foundation for Individual Rights in Education found that about one in six had designated free-speech zones. Mr. Cohn of FIRE argued that the ability of most colleges to allow free speech throughout their campuses undermines assertions that doing so would carry unacceptable costs.

Washington State lawmakers considered a bill that would have banned public colleges from establishing free-speech zones, from requiring instructors to issue trigger warnings, and from punishing students or employees for perceived microaggressions.

Although the measure died in committee last winter, its sponsor, State Rep. Mathew S. Manweller, a political-science professor at Central Washington University, said he had since won “a small victory": The Washington State University system’s Board of Regents this month adopted a policy classifying, as a public forum for free speech, all university property not being used for instruction, research, or health services.

Peter Schmidt writes about affirmative action, academic labor, and issues related to academic freedom. Contact him at peter.schmidt@chronicle.com.