If some public universities have lost sight of the fact that freedom of speech is essential to both education and American democracy, the American people are fortunate that a growing number of state legislatures have not. Several weeks ago, Louisiana Governor John Edwards signed SB 364, a bill crafted to restore students’ free speech at the state’s public universities. In so doing, the Bayou State became the tenth state to pass legislation that outlaws so-called campus “free-speech zones” (small areas on campus to which students’ First Amendment rights are wrongly relegated). The new law also protects religiously based student organizations through forbidding the state’s public universities from taking action against those student groups that require their “leaders or members of the organization to affirm or adhere to the organization’s sincerely held beliefs.” Add to this encouraging news the fact that the bill passed on a bipartisan basis in the Louisiana Legislature and was then signed by its Democratic governor.
Such harmony was lacking only a year prior, when an earlier version of the bill passed both houses, but was vetoed by Edwards. In June 2017, the first version of the bill, House Bill 269, was vetoed by the governor on the grounds that the proposed free-speech law was “a solution in search of a problem,” which would prove to be “unnecessary and overly burdensome.” In his veto letter, Edwards went on to argue, “The protection of speech has survived and flourished in the 226 years since the adoption of the First Amendment, and it will continue to do so without House Bill 269 becoming the law of Louisiana.”
What changed between last year and now? As reported in The Advocate, when Edwards was questioned as to why he signed the second bill, his office replied that “these are two very different bills that seek very different outcomes”; the first measure “was unnecessary and created an overly burdensome structure for the evaluation of the freedom of speech on college campuses.” Specifically, Edwards objected to a provision of the first free speech bill that would have required a multi-member panel to oversee its guidelines, as well as to the earlier bill’s call for “sanctions on students who interfered with other students expressing their constitutional right.”
Under the new bill, public colleges and universities, working with the state Board of Regents, must craft official policies announcing that students and professors can speak on any subject, assemble and make their opinions public so long as the gathering is lawful and does not disrupt the school’s day-to-day operations. The new policies must include “a statement that it is not the proper role of an institution to shield individuals from speech protected by the First Amendment of the Constitution . . . including without limitation ideas and opinions they find unwelcome, disagreeable, or even deeply offensive.”
The new law also requires state universities to issue status reports to the governor and legislature by January of next year, documenting each school’s progress in implementing the law. Moreover, these schools will be required to submit annual reports to the legislature and governor in which they specify obstacles to free speech at their school and what the administration is implementing to restore the First Amendment.
However, not all defenders of campus free speech deem the new Louisiana law an unmixed blessing. At the website of the nonpartisan, free-speech watchdog, FIRE (Foundation for Individual Rights in Education), Tyler Coward writes that, although FIRE is “pleased” with the bill, the Louisiana law provides “two conflicting standards for determining when ‘time, place, and manner’ restrictions are permissible at public colleges and universities in the state.” In the first part of the bill, it states that a “’public postsecondary education institution may maintain and enforce reasonable time, place, and manner restrictions narrowly tailored in service of a significant institutional interest. . . .’” Coward rightly identifies this as “the standard used by the United States Supreme Court.” But he notes that the second, later mention of the standard in the bill “states that time place and manner restrictions must be ‘necessary to achieve a significant institutional interest.’” I take his point that “these conflicting standards are likely to make it difficult for students, administrators, and courts to determine the appropriateness of time, place, and manner restrictions on campuses.”
While this shortcoming in the bill is lamentable, it also is easily remedied, which defenders of free speech hope will be the case when the legislature next convenes.
But more important is the traction nationwide that the campus free-speech movement has been gaining. With the passage of its campus free speech bill, Louisiana joins Florida, North Carolina, Virginia, Kentucky, Tennessee, Colorado, Utah, Georgia, and Arizona in adopting legislation designed to protect free speech on college campuses. According to reports, at least 24 states have considered or are in the process of considering likeminded legislation to bolster free speech and inquiry at state colleges and universities.
Here in Texas, the Senate considered a campus free speech bill based on the Goldwater Institute’s Model Proposal to Restore Free Speech on Campus. Although the bill passed in the Senate, the vote was along strictly partisan lines. The bill died when it was never heard in the Texas House. Supporters are planning to reintroduce the bill when the Texas Legislature convenes again next January. Given the national momentum to restore campus free speech, it would be reasonable to wager that the Lone Star State will not be the only one to revisit this issue soon.
At least we can hope so. Sad to say, but many of the free-speech-flouting colleges and universities have proven to be unable or unwilling to restore free speech and inquiry on their campuses on their own. (The 34 universities that have signed on to the free-speech-defending “Chicago Principles” are happy exceptions.) Hence, we find ourselves in the peculiar situation in which the people’s representatives are compelled to “educate,” through legislation, university leaders. But campus leaders, of all people, should already know that “freedom of inquiry, freedom of discussion and freedom of teaching—without these a university cannot exist,” as past University of Chicago president, Robert Maynard Hutchins, stated it.
This commentary was originally featured in Forbes on June 29, 2018.