The national controversy surrounding attempts to shut down controversial speakers on college campuses entered a new phase this week, with the Senate Judiciary Committee holding a hearing, “Free Speech 101: The Assault on the First Amendment on College Campuses.” But even as they held that hearing, Republican legislators in the Wisconsin State Assembly advanced legislation that would severely punish such protests—and pose its own threat to free speech in the process.
Under the bill, University of Wisconsin students “could face a disciplinary hearing if they receive two or more complaints about disruptive conduct during a speech or presentation,” The Washington Post reports. “If a student is found responsible for ‘interfering with the expressive rights of others,’ the bill would require that the student be suspended for a minimum of one semester. A third violation would result in expulsion. Anyone who feels their expressive rights are violated can file a complaint.”
State Representative Jesse Kremer says he sponsored the legislation as a response to situations when the free-speech rights of students were taken away by disruptions. “People are still allowed to protest and disagree,” he told the newspaper. “It’s that the person in a forum has the right to get their point across without being disrupted.”
But a critic of the bill suggested that its punitive approach to protest was itself a threat to free speech rights. “Our colleges and universities should be a place to vigorously debate ideas and ultimately learn from one another,” State Representative Lisa Subeck, a Democrat, told The Milwaukee Journal Sentinel. “Instead, this campus gag rule creates an atmosphere of fear where free expression and dissent are discouraged.”
For years, I have been a staunch critic of activists who shut down invited speakers with whom they disagree, whether through force or sustained chanting and disruption. And I agree with the premise that students who repeatedly engage in that sort of behavior should be punished. Denying members of an academic community the ability to host controversial speakers, or to hear hotly contested ideas, jeopardizes the core missions of undergraduate education and knowledge generation.
Administrators at many institutions of higher education have been derelict in protecting those missions from censorious student activists with authoritarian tendencies. What’s more, recent, prominently reported shut-downs of speakers like Charles Murray and Heather Mac Donald have caused faculty and students hoping to avoid the shutdown of their next event to shy away from speakers who might be controversial—a chilling effect that could be reversed by clearly communicating that denying others the right to speak will no longer be tolerated on college campuses.
But I had several misgivings about the Wisconsin bill as originally drafted that went beyond my general aversion to state legislators trying to micromanage student life at public universities, especially ones that haven’t themselves experienced a rash of shutdowns.
The original language was based on model legislation from the Goldwater Institute. Its features were described as follows by Wisconsin’s legislative analyst in the official summary:
The policy must include a range of disciplinary sanctions for anyone who engages in violent, abusive, indecent, profane, boisterous, obscene, unreasonably loud, or other disorderly conduct that interferes with the free expression of others. In addition, the policy must provide that in disciplinary cases involving expressive conduct, students are entitled to a disciplinary hearing under published procedures that include specified rights. Also, the second time that a student is found responsible for interfering with the expressive rights of others, the policy must require the student to be suspended for a minimum of one semester or expelled.
I objected most to the language that requires punishment not just when student protesters prevent an event from happening, or disrupt it in a way that denies others free speech, but when there is mere interference with another person’s speech or expression. Should a protester be punished for briefly interrupting a speech with a sign, then leaving voluntarily when asked? How about loudly booing a speaker or interrupting and talking over a speaker during a question and answer session? I have been disrupted while speaking to college students, but never in a way that denied me the ability to express myself or stopped the event in question. There was never a need to bring formal discipline into those situations.
The Foundation for Individual Rights in Education recommended that Wisconsin mandate sanctions only for substantial, material disruptions of free speech, and avoid defining minimum sanctions in statutes, because “not all disruptions are equal in their severity, and sanctions should be proportional to the offense.” Like zero-tolerance-for-weapons policies that result in expelling grade-school students for water guns or butter knives in a lunch pale, this bill seemed to risk unreasonable outcomes by denying college administrators discretion to exercise judgment and common sense.
That input seems to have significantly improved the final bill. As the amendment report puts it:
The bill requires that the Board adopt a policy that includes a range of disciplinary sanctions for certain individuals who engage in “violent, abusive, indecent, profane, boisterous, obscene, unreasonably loud, or other disorderly conduct that interferes with the free expression of others.”
The amendment modifies the types of conduct for which disciplinary sanctions must be established. Specifically, the amendment provides that there be disciplinary sanctions for “violent or other disorderly conduct that materially and substantially disrupts the free expression of others.”
Many mere disruptions to a speech, like booing a particular line in a speech, or disrupting a speaker’s words while walking out of a talk in disgust, should themselves be considered protected expression by principled advocates of free speech. The amended language seems much less likely to punish or chill protected speech, although the words “disorderly conduct” remain a bit too vague for my taste.
The amended version of the bill also declares that “a student who is subject to a disciplinary hearing has the right to counsel in all circumstances, no matter the nature of the potential penalty,” rather than only when they are facing suspension or expulsion.
But minimum penalties are retained. And the amended version also fails to resolve my next biggest concern: “that any person be permitted to make a report that another person has violated the bill’s provisions” and “that a formal investigation and disciplinary hearing be conducted if two or more reports are made regarding the same person’s violation.”
If I know academia, the potential for abuse, absurd outcomes, and chilled expression is greatly exacerbated by giving everyone the right to file a complaint on a whim.
This power to initiate formal proceedings may well exacerbate two pernicious trends in campus life: 1) the evolution of a culture where harassing innocents with the filing of frivolous complaints is a common feature, forcing victims into time-consuming administrative investigations, often with opaque rules and rampant due process violations; 2) administrative bloat that flows from hiring staff to investigate complaints, carry out hearings, adhere to bureaucratic rules, and demonstrate compliance.
Both trends should be of concern to conservatives.
The administrative bloat would likely remain in Wisconsin for years after the trend of speech disruptions by student activists fades away and other campus problems loom larger. This is how bureaucracies become cumbersome and sclerotic over time.
Republicans may be correct in concluding that speech is being shut down often enough on college campuses to warrant a legislative response, especially if public university administrators are repeatedly failing to punish students who shut down events. But if legislators intervene, they should do so with more precision and restraint than is demonstrated by the counterproductive activists that spurred them to action.
As a governor I would certainly veto the Goldwater Institute’s model legislation, despite my sympathy for its main goal. The Wisconsin legislation comes closer to the mark in its amended state, and is a better model for Republicans in other states to follow, if they must insert themselves into campus life at all. But the provisions I’ve criticized in the Wisconsin bill should still be significantly improved, and easily can be.
Perhaps it would still be an improvement on the status quo in a public university system where administrators were standing idly by as activists shut down multiple speakers or routinely prevented fellow students from expressing themselves. That may describe life on some campuses in 2017, but I see no evidence that it describes life at the University of Wisconsin, or reason to believe it will anytime soon. And that makes this a bill likely to do more harm than good.