The Texas Senate State Affairs Committee Chair recently held hearings at Texas State University on whether Texas should enact legislation protecting free speech on state college campuses. The Senate Committee asked fourteen speakers to testify on registration requirements of student organizations and obstacles for students to invite speakers to appear on state campuses, such as arbitrary security expenses. In addition, the Goldwater Institute submitted written testimony explaining the Goldwater Institute’s model bill called the “Campus Free Speech Act.” The model bill was co-authored by the Goldwater Institute and Stanley Kurtz of the Ethics and Public Policy Center.
The Basics of the Bill
The Campus Free Speech Act affirms the principle that state universities should remain neutral on public controversies to encourage dialogue and debate on campus. To do so, the Act would extend the protections of the First Amendment to entire state college campuses by treating all public areas as a traditional free speech forum, thereby eliminating so-called “free speech zones.”
The Act would ensure that guest speakers would not be improperly denied access to state campus forums based on the content of their lawful speech or their political views, regardless of how controversial their viewpoints might be. However, the bill would allow narrowly tailored, time, manner and place restrictions on speeches and programs, and would allow public universities to impose reasonable (not arbitrary) security costs onto to event organizers. Departing from other model legislation, the Act includes disciplinary measures for students who infringe the free-speech rights of other students by substantially and materially disrupting the functions of the college.[i]
Is Legislation Necessary and Appropriate?
It may seem counter-intuitive to think that ensuring free speech should require new legislation. After all, we typically relate less regulation to more freedom. Yet, the Goldwater Institute’s model bill is premised on the idea that legislation – and enforcement measures – is necessary to protect free expression on state college campuses. In some ways, this follows the example of the First Amendment itself, which restricts the government’s powers to infringe on free expression rights.
It is lamentable that any legislation is necessary to protect free speech at a place of higher learning. The ideal of the university is to encourage student inquiry, discovery, and engagement in respectful dialogue. But, increasingly, college campuses are heated battle grounds where students want protection from exposure to ideas with which they disagree. For higher learning and inquiry to flourish, it is critical that the free exchange of ideas and civil debate on American campuses be preserved.
Preventing the Heckler’s Veto
Many Americans are familiar with the riots that occurred at UC Berkeley when conservative commentator Ben Shapiro appeared for a speaking engagement at the request of the College Republicans. The subsequent demonstration against Shapiro’s presence at the left-leaning university mandated a large detail of police officer-provided security, drew hundreds of protestors, and resulted in multiple arrests.
Texas campuses have not been without incident. When Republican Rep. Briscoe Cain spoke at Texas Southern University in 2017, the event was disrupted by protestors who declared Cain “shouldn’t have been given a platform because of his stance on transgender rights and actions many have regarded as racist.”
Last summer, Texas A&M University cancelled a “White Lives Matter” rally to be held in September 2017. The cancellation came shortly after Richard Spencer’s “Unite the Right” rally at the University of Virginia resulted in one person’s death and 19 others injured when a white nationalist drove his car into a crowd of counter-protesters.
When protestors impede a speaker from public speech, it is commonly called the “heckler’s veto.” But, recent incidents have involved violence and physical intimidation, not mere heckling or verbal expression. Shutting down a speaker through violence, intimidation, or physical disruption, deprives the speaker of his or her right to speech, and infringes on a listener’s interest in free expression and sharing of views. As Frederick Douglass wrote: “To suppress free speech is a double wrong. It violates the rights of the hearer as well as those of the speaker.”
Should Campus Speech Be Left to College Administrators?
We believe in the principle that controversies and problems affecting our society and culture should be addressed at the most local level possible. Ideally, behavioral issues on a college campus would be handled by local college officials. However, recent events like the Shapiro and Rep. Cain incidents have shown some state college administrators are incapable of safeguarding peaceful dialogue and debate. More importantly, a state college is a public forum. If a college only provides a safe, accessible forum to approved viewpoints, its actions or inactions breach the First Amendment rights of students and their guests.
Preserving the Right to Protest
We recognize the tension between the right of a speaker to speak, and protestors to protest. Subject to time, manner and place restrictions, protecting the right to peacefully assemble is as important as protecting the speech of an orator behind a podium. The Campus Free Speech Act would not outlaw peaceful, spontaneous protests and demonstrations. The introduction to the Act explains, “Any person lawfully present on campus may protest, demonstrate, assemble, or engage in spontaneous expressive activity, so long as they adhere to college regulations of the time, place, and manner of expression and do not infringe upon the rights of others to engage in or listen to expressive activity.”
Should Free Speech Legislation Include Disciplinary Measures?
Other organizations have prepared model bills to address campus free speech issues. For instance, American Legal Exchange Counsel (ALEC) has drafted “Forming Open and Robust University Minds (FORUM) Act.” There are similarities between the Goldwater and ALEC bills. However, the most notable distinctions involve the remedies for violation of the respective bills.
Both FORUM and the Campus Free Speech Act authorize lawsuits, injunctive relief, and monetary damages against state colleges for violations of the respective bills. However, unlike the Campus Free Speech Act, FORUM does not call for disciplinary actions for students who deprive others of free expression rights through material and substantial disruptions. By being silent on disciplinary actions, FORUM also is silent on the due process requirements of any disciplinary hearings.
The Campus Free Speech Act, on the other hand, requires disciplinary hearings to be conducted according to published procedures “including, at a minimum (1) the right to receive advanced written notice of the charges, (2) the right to review the evidence in support of the charges, (3) the right to confront witnesses against them, (4) the right to present a defense, (5) the right to call witnesses, (6) a decision by an impartial arbiter or panel, and (7) the right of appeal.”
We think that punishing unreasonable, willful behavior that materially and substantially disrupts the functions of the college to be appropriate. Further, we find the inclusion of due process requirements to be prudent and necessary to avoid arbitrary decisions and abuses in any disciplinary actions.
What About Private Universities?
While free expression is paramount on all campuses, the First Amendment directly applies on a state college campus. Because students voluntarily attend private institutions, private colleges may impose speech codes that restrict expression. It is understandable then, that the Campus Free Speech Act would only apply to state colleges. This is a critical distinction. Texas public universities that would be subject to the bill are state institutions already subject to governance by the state legislature and the boards of regents, which are appointed by the Governor and confirmed by the Texas Senate.
In summary, we find the model language of the Campus Free Speech Act prudent, sufficiently clear, and fair. We think it is appropriate to give state college administrators guidelines to discipline students for that materially and substantially deprives others of their First Amendment rights, while ensuring meaningful due process measures to prevent abuse and arbitrary decisions in the disciplinary process.
Doug McCullough and Pedro Gonzales – Lone Star Policy Institute
[i] Administrators would be required to educate students about these rules, which would be included in their freshman orientation. What constitutes “disruptions” subject to disciplinary sanctions would likely evolve as a body of law develops from disciplinary actions. However, in our opinion, sanctionable disruptions should include violence, threats, physical intimidation, and physical obstruction that impede a speaker and prevent an audience to hear the speaker’s views. Mere occasional heckling or booing would not be subject to disciplinary action.
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