The Campus-Speech Debate Spends Summer Break in Statehouses

While student activists are away, legislators have transformed the fight over how free expression is regulated on public university campuses.

Adrees Latif / Reuters

Until this summer, the debate about free speech on college campuses was shaped by small groups of student activists, forcefully protesting an ever-expanding list of controversial speakers, and their critics and defenders, who were mostly reactive.

The clearest conflict, amid many shades of gray, concerned the subset of those activists who went beyond mere protest and tried to shut down events.  They usually purported to do so on behalf of a historically marginalized group, contested the notion that liberal tolerance is a sacrosanct campus value, and rejected the philosophy set forth in Yale University’s 1974 report on free expression: that “the history of intellectual growth and discovery clearly demonstrates the need for unfettered freedom, the right to think the unthinkable, discuss the unmentionable, and challenge the unchallengeable;” and that “to curtail free expression strikes twice at intellectual freedom, for whoever deprives another of the right to state unpopular views necessarily also deprives others of the right to listen to those views.”

Those most extreme activists succeeded in denying campus platforms to some speakers, generated a lot of media attention, and seemed for a while to suffer no consequences, even as observers like the socialist activist and academic Freddie deBoer cautioned that, for few if any gains, they were courting an inevitable backlash.

That backlash is now upon them.

Tennessee, Utah, and Virginia have all passed campus-speech bills, with the Virginia bill garnering broad bipartisan support and a Democratic governor’s signature. And in North Carolina, a campus-speech bill was just approved by the state legislature and passed into law when a Democratic governor declined to exercise his veto.

That law, modeled on draft legislation created by the Goldwater Institute, a conservative think tank, may portend more of the same. “The North Carolina Restore Campus Free Speech Act accomplishes the lion’s share of what the Goldwater model proposed, including important steps forward on discipline for shout-downs,” Stanley Kurtz argues at National Review. “Goldwater-based bills are under consideration in several states, with more likely to follow next year. Any state bill can be strengthened in a second legislative round if universities continue to abuse their powers.”

As he sees it, “Campus speech legislation is now in play as never before. Administrators will have to take that into account when they decide how to handle free speech.”

Indeed, bills based on the Goldwater Institute model, or very similar to it, are under consideration, or likely to be considered, in states including Arizona, Colorado, Illinois, Louisianna, Michigan, and Texas. Variations and amendments could make the difference between a law that would do more harm than good and vice versa.

In Wisconsin, for example, I argued that a campus-speech bill’s flaws made a vote against it the best course. But in North Carolina, legislators appear to have improved on the Goldwater Institute model, informed by analysis from the Foundation for Individual Rights in Education. It offers improved free-speech protections to students without chilling mere protest or mandating overly harsh punishments.

In states where such bills are still being debated, legislators need to avoid prohibiting negligible disruptions, like booing, a form of dissent perfectly consistent with robust free speech; and laws that overburden universities with significant new administrative requirements, or incentivize frivolous accusations and disciplinary investigations, which can themselves be used to chill freedom of speech and expression.

So far, most of the action in state legislatures, congressional hearings on campus speech that I noted earlier this week, and Claremont McKenna’s decision to severely punish students who shut down a speaking event featuring Heather Mac Donald have come during the summer months, when many student activists are away from campus. One wonders whether the fall semester will include protests against these actions; or more attempts to shut down speech; or declines in no-platforming.

Given that Congress, the Supreme Court, most state legislatures, a majority of voters, and huge numbers of college students and faculty oppose the tactic of event shutdowns and no-platforming, at least insofar as they happen at public universities subject to the First Amendment, it is hard to see what more shutdowns would accomplish, and easy to imagine legislative blowback that goes much farther.

And for what?

In the name of free speech, Republican legislators in North Carolina just passed a bill that will better protect core rights of marginalized groups at all state universities.

And as deBoer has noted, the left doesn’t seem to have workable plans for regulating speech: “No one can state a remotely plausible system where a constitutional amendment would pass the House, Senate, and state legislatures necessary to abolish free speech, and no one can tell me how it would work out where the left actually would be the ones acting as the censors and not the censored.”

There are scores of more pressing issues facing leftist activists than pursuing this dead end.