WASHINGTON – The sight of white supremacists marching through the heart of the University of Virginia, carrying flaming tiki torches and shouting “Jews will not replace us!” — followed by the killing of a counterprotester at a rally in downtown Charlottesville the next day — may put the brakes on state efforts to strengthen campus free speech protections.
At least seven states (Arizona, Colorado, Missouri, North Carolina, Tennessee, Utah and Virginia) have enacted such laws since 2014, and other states considered them this year. But the death of Heather Heyer in Charlottesville this month showed how hateful speech can lead to violence. That might prompt legislators to rethink how the bills are written or whether to support them at all.
“It has been really distressing and upsetting to watch violence used against protesters, and I expect that to have a profound effect on how lawmakers view these issues,” said Joe Cohn, legislative and policy director for the Foundation for Individual Rights in Education, a nonpartisan group that helps lawmakers write free speech bills.
As emboldened white supremacist groups plan events intended, in part, to provoke diverse, liberal communities, political leaders and even such free speech advocates as the American Civil Liberties Union have struggled to respond.
Legal experts say campus free speech laws are often redundant, because public institutions have to uphold the First Amendment under federal law anyway. Colleges generally have adequate policies for disciplining overly disruptive heckling and other violations of free speech without being required to by state law, said Michael Olivas, a higher education law expert and professor at the University of Houston Law Center.
But college and university leaders say some measures state lawmakers have considered recently could prevent campuses from disinviting speakers who pose a threat to safety or could suppress the rights of counterprotesters.
Michigan state Sen. Patrick Colbeck said that the death in Charlottesville hasn’t deterred him from pushing legislation to promote campus free speech. “I think the clashes that we saw there are more a result [of the fact] that we haven’t had an open dialogue,” the Republican said.
This year, lawmakers in 22 states considered bills to protect free speech on public college campuses, according to the American Association of State Colleges and Universities. That count includes some bills designed to protect student journalists, said Thomas Harnisch, director of state relations and policy analysis for the organization.
Republicans, in particular, have pushed these laws in response to what they see as hostility toward conservative speech on liberal campuses. In recent years, student protesters have driven away such speakers as former Secretary of State Condoleezza Rice, shouted down remarks by conservative author Charles Murray and escalated into riots ahead of a speech by provocateur Milo Yiannopoulos.
Colbeck said that such incidents remind him of the propaganda agency that sought to eliminate free thinking in George Orwell’s novel 1984. “Our universities have devolved into those ‘ministries of truth’ George Orwell warned us about,” he said.
Most of the laws enacted or considered so far don’t go further than reinforcing existing First Amendment law. “We have the First Amendment. So any law a legislature is going to pass is going to take the form of, ‘and we really mean it,” said Jim Manley, an attorney at the Goldwater Institute, a conservative think tank in Arizona that supports campus free speech legislation.
But some of the new laws penalize colleges for suppressing free speech, and some proposed laws would penalize students for doing so.
Five of the state laws passed so far are based on model legislation produced by the Foundation for Individual Rights in Education. Arizona, Colorado, Missouri, Utah and Virginia have enacted laws that prevent public universities from creating “free speech zones,” designated areas for protests, rallies and pamphleteering. Under the Missouri and Utah laws, courts will automatically award damages to a person whose free speech rights are violated.
North Carolina enacted a law this summer based on a model from the Goldwater Institute. The law directs the Board of Governors of the University of North Carolina system to create a committee to monitor free expression on campus and requires university campuses to include a discussion of free speech in freshman orientation.
It also directs the Board of Governors to develop a free expression policy that, among other provisions, requires universities to discipline students who substantially disrupt protests, demonstrations or other speech and abolish both free speech zones and “safe spaces,” designated areas where students can avoid upsetting ideas.
Some proposed measures, such as the one the Wisconsin Assembly approved this summer and the state Senate is now considering, contain stronger language. The Wisconsin bill threatens students with suspension or expulsion if they repeatedly disrupt the free speech of others with violent or disorderly conduct.
Opponents say that language is too prescriptive and argue that the bill could prevent students from exerting their own First Amendment right to protest.
“I think it’s unconstitutional, this bill,” said state Rep. Chris Taylor, a Democrat who represents Madison. “It would kill speech.”
Colbeck also has authored two bills on campus free speech — one that would abolish free speech zones and one modeled on the Goldwater legislation — that would apply to both public universities and community colleges. The legislation is opposed by the American Civil Liberties Union of Michigan, which says it vaguely defines what counts as interfering with another’s speech and prevents universities from penalizing free speech disruptions on a case-by-case basis.
Meanwhile, universities are trying to figure out how to balance their responsibility to uphold the First Amendment with considerations, such as safety and the need to protect individuals from harassment and discrimination.
Free speech shouldn’t be a free-for-all, said Jonathan Alger, president of James Madison University, a public university in Virginia. “The First Amendment is not completely unlimited,” he said.