Free Speech or Else: Legislatures React to Student Disruption of Invited Campus Speakers

As reported in this blog, a growing trend on college campuses has been episodic disruption by student activists of the public speech activities of third parties. Reminiscent of the tactics of ACT-UP demonstrators in the 1980’s, student demonstrators utilize a variety of tactics to silence the viewpoint of speakers with whom they disagree through the use of cell phone rings, heckling, chants, intimidation, and blocking access to the speaker, among other forms of behavior. These tactics have had a pronounced and negative effect on the dissemination of ideas and free speech on college campuses, a fact which has not escaped the attention of state legislatures. The point of departure for discussions of the protection of campus free speech has been the First Amendment itself, which largely protects the speech acts of demonstrators on the premises of educational institutions. However, First Amendment jurisprudence does not afford an absolute right to free speech when it comes to educational institutions. It has long been established that such institutions, from grade school to graduate schools,  may impose limitations on speech that are content neutral such as limits on the time, place, and manner such speech is delivered. See for example, Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 106 S. Ct. 3159, 92 L. Ed. 2d 549 (1986) upholding school’s ability to prohibit the use of vulgar and offensive language). Moreover, the so called speech being utilized by demonstrators, which includes the use of profanity and derogatory epithets, coupled with intimidation, blocking access to fora, and occasional violence, troubles claims as to whether “shouting down” a speaker qualifies as protected speech at all.

State legislative response to this latter question has thus far been in the negative. Two states, Wisconsin and North Carolina, have led the way to placing limits on the activities of demonstrators when it comes to their disruption of invited speakers.  In Wisconsin, state legislators enacted the Campus Free Speech Act which prohibits “ protests and demonstrations that interfere with the rights of others to engage in or listen to expressive activity”; requires that campuses within the Wisconsin system be open to any speaker invited by students, faculty or staff; mandates that Wisconsin campuses be open fora; requires introduction of free speech discussions in Freshman orientation; and sets forth mandated punishment for individuals who violate the Act. See Campus Free Speech Act, Assembly Bill 299 (Wis. 2017). Following the passage of this legislation, the Wisconsin Board of Regents passed the Commitment to Academic Freedom and Freedom of Expression Policy to comply with the statutory mandate. See Similarly, the North Carolina Legislature passed the Act to Restore and Preserve Free Speech on the Campuses of the Constituent Institutions of the University of North Carolina. The North Carolina Act, like the Wisconsin Act, prohibits the disruption of speech on North Carolina’s college campuses, guarantees North Carolina’s college campuses to be open fora for free speech, and prohibits North Carolina’s institutions of higher education from requiring particular viewpoints of its students. See Session Law 2017-196 (N.C. 2017). The State of Ohio has also seen an interest in prohibiting speech suppression on its college campuses with its Campus Free Speech Act (H.B. 363, 132th Gen. Ass. (Oh. 2017).

On the whole, these developments are positive in that they safeguard the ability of ideas of invited speakers to be presented to student populations, those ideas can be constructively debated, and discourse in the realm of ideas can once more be realized, at least on a small scale, in a nation that increasingly is inclined to shut off any measure of dialogue. While certainly these laws will be tested by both the left and the right by invitations being extended to political anarchists, black, as well as white supremacists,  and others who will seek to denigrate and marginalize whole swaths of people, the reality is and must be in a country such as the United States people must be allowed to have and foster any idiotic idea they desire so long as it doesn’t lead to the physical harm of others, harm to property, or systemic disruption of public institutions. These laws restore a constitutionally required balance that has been missing for decades from our public educational institutions. It is hoped that students of persuasions will avail themselves of these laws in Wisconsin, North Carolina, and eventually Ohio, In so doing, these young people may come to learn the fact that all lawyers know, that there truly are two sides to every story and that while one may have the wisdom of Solomon, no one, except God, has a monopoly on the truth.