State lawmakers across the country have begun recently to propose legislation with the intent of reaffirming the First Amendment guarantee of freedom of speech on college campuses. Legislation introduced in several states would restrict the ability of campuses to designate specific free speech zones or limit disciplinary action against students who engage in lawful expression no matter how offensive or immoral. Several recent proposals, colloquially referred to as “Milo bills”, in reference to instances on colleges campuses where appearances by controversial Breitbart editor Milo Yiannopoulos have been canceled or protested, would potentially extend responsibility for campuses to prevent students or members of the public from restricting free speech rights of other parties.
· Bills in a number of states, including Colorado (SB 17-062), Illinois (HB 2939), North Dakota (HB 1329), Utah (HB 54), and Virginia (HB 209, passed and enacted in 2016), would designate all outdoor areas of campus as public forums and prohibit institutions from preventing members of the campus community or public from assembling or freely engaging in lawful, noncommercial expressive activity. Colorado’s bill includes language that specifically restricts campuses from designating any specific area of campus a free speech zone.
· Both Illinois’s HB 2939 and the proposed Tennessee Student Freedom of Expression Act (HB 739 / SB 1165) include language similar to that recommended by Wisconsin Governor Scott Walker in his 2017-19 biennial executive budget proposal for “codifying the state’s commitment to academic freedom”, stating in Section 594: “It is not the proper role of the board or any institution or college campus to attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive.” The proposed bills further restrict campuses from making or acting on judgements regarding speech even if “most of the system’s community [find it] to be offensive, unwise, immoral, or wrongheaded.”
· In Utah, HB 103 would prevent institutions from punishing student-on-student speech except in cases where it is “discriminatory on the basis of race, color, national origin, disability, religion, age, or sex” or “so severe, pervasive, and objectively offensive” as to deny a student equal access to the resources and opportunities of the institution. Language along these lines has appeared in earlier drafts of other proposed state legislation but is frequently removed while the bills are in committee.
Many legislators, including some who supported the bills in their respective states, have stated that such bills are redundant to the First Amendment to the US Constitution and judicial decisions regarding the narrowly tailored regulation of time, place, and manner for free assembly, specifically Ward v. Rock Against Racism, 491 U.S. 781 (1989).
Indeed, in many cases, it’s uncertain what protections these bills may provide that isn’t already guaranteed in the First Amendment, though some proposals appear to expand on first amendment protections by adding responsibility for public institutions to “protect that freedom when others attempt to restrict it,” as stated in both Governor Walker’s proposed executive budget and California’s Assembly Concurrent Resolution 21. It’s unclear from the proposed bills to what lengths institutions would be held responsible for such protection, however.
Several of Mr. Yiannopoulos’s scheduled campus appearances have been canceled due to concerns about the safety of participants or the expense of logistics or security requirements. The bills do not provide guidance on whether decisions to cancel appearances on the basis of such concerns would put them in violation of the proposed legislation.
Language protecting all speech on campus, even speech which may be immoral, could put campus codes of conduct in conflict with legislation, stifle or call into question hate or bias incident reporting or response work, or create a chilling effect on campuses working to create and foster welcoming climates for historically oppressed student populations. While most bills include language calling for encouragements of civility and many allow faculty to take steps necessary to maintain order in the classroom, conversations frequently occur in areas of campus outside classrooms, and the bills are silent or vague on what steps institutional staff or administrators may be allowed to take to maintain order and safety should conflict arise.
Finally, while it appears to be in the minority and similar language has been removed from other state proposed legislation, Utah’s HB 103 lists a discreet set of statuses that would be deemed discriminatory, but omits sexual identity or gender expression, leaving open a potential grey area where campuses may not be allowed to discipline students who engage in hate speech directed at LGBTQIA students.
Ultimately, only time will tell what impact, if any, the legislation proposed above may have on college campuses. As NASPA President Kevin Kruger wrote earlier this month in Inside Higher Ed, however:
Controversial speech on campuses isn’t new. Conflict on campuses isn’t new. Indeed, equipping our students with the skills to confront the marketplace of ideas with a bias toward open dialogue is at the core of higher education’s mission, and we’ve been encouraging them to practice those skills for decades.
As legislation to reaffirm the Constitutional protections for free speech advance, we at RPI are interested in hearing from you. Feel free to comment below or reach out to Director of Policy Research & Advocacy, Teri Hinds, with your thoughts!