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Freedom of expression on campus: Controversial speakers, student protests

Bills impacting how students exercise free speech are winning levels of support in statehouses in the US
University Business, August 2017

Bills that could impact how students exercise free speech at public higher ed institutions—and that could also dictate how administrators discipline “disruptive” behavior—are winning various levels of support in statehouses across the country.

Introduced partly in response to recent protests against controversial speakers on campuses across the U.S., the proposals follow two models: the Campus Free Expression Act and legislation developed by the conservative Goldwater Institute.

The Goldwater model, introduced in 2017, attempts to:

  • Ensure “harassment” is defined constitutionally
  • Focus on disruptions that prevent people from speaking
  • Make sanctions mandatory for those engaging in disruptive behavior
  • Prohibit institutions from confining protests or other forms of political expression to designated free-speech zones
  • Urge institutions to remain neutral on controversial issues The Campus Free Expression Act, or CAFE, prohibits institutions from quarantining free speech zones.

In August 2015, Missouri passed the first CAFE Act (SB93) while Virginia had enacted a similar law (HB 258) in April 2014. Both approaches have some free speech advocates concerned.

“The precedent of allowing legislation to dictate what or how universities enforce or regulate speech on campus could have far-reaching consequences,” says Abena Hutchful, program associate with the youth free expression program at the National Coalition Against Censorship, a collection of 56 nonprofit organizations that opposes these bills.

“A state with a Goldwater law could influence the way in which other institutions respond to controversial speakers and regulate speech.”

The challenge: Many schools have given students who disrupt a speech only a slap on the wrist, says Joe Cohn, legislative and policy director of the Foundation for Individual Rights in Education, the organization that drafted a majority of the CAFE Act.

Currently, the Goldwater model supports defining “interference” narrowly to include activities that prevent a speaker from conducting a speech.

“You don’t want someone who boos to be punished for that form of protected speech,” says Cohn. “But when people shout down a speaker, prevent others from hearing speakers or commit acts of violence, that kind of activity should be prohibited by universities.”

In the case of the Goldwater-inspired Wisconsin Assembly Bill 299, the definition of “interfering” actions originally included the words “indecent, profane, boisterous, obscene and unreasonably loud,” which opponents believed would curtail lawful protests.

While the Wisconsin legislature removed these adjectives, many opponents, including Hutchful, aren’t satisfied. She says their removal now only makes the bills reiterations of the First Amendment. “They wouldn’t say anything more than what the Supreme Court has already stated,” she says.

Both Cohn and Hutchful agree that free speech zones—practiced at one out of every 10 schools across the U.S.—should be eliminated. “But it’s the university’s right to eliminate free speech zones,” says Hutchful, adding that legislators should not mandate such action.

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