This commentary was originally featured in Forbes on January 26, 2018.
A wave of support for legislative efforts to restore free speech and debate on campus appears to be taking shape in a number of states across the country.
As reported on the website of the Goldwater Institute, Nebraska recently became the latest state to consider “legislation to restore free speech on college campuses” when Nebraska State Senator Steve Halloran introduced the Higher Education Free Speech Accountability Act. The legislation being considered is itself drawn from Goldwater’s model bill, titled, “Campus Free Speech: A Legislative Proposal,” crafted last year by Stanley Kurtz, James Manley, and Jonathan Butcher. Commenting on the proposed Nebraska bill, Goldwater’s senior attorney, Manley, predicted, “Should this new bill become law, it would create greater accountability regarding the preservation of free speech rights for all on NU [University of Nebraska] campuses.”
The Goldwater model bill recommends a number of measuresdesigned to “encourage students and administrators to respect and protect the free expression of others.” Among the recommended measures are the following: Creation of an official university policy that “strongly affirms” the centrality of free speech and debate in fulfilling a university’s defining mission—teaching and learning. In the process, it would eliminate any “existing restrictive speech codes” currently on a school’s books. It would prevent administrators from issuing “dis-invitations” to speakers “whom members of the campus community wish to hear from.”
The model bill also mandates penalties for those who would violate others’ free-speech rights, and it allows those whose free-speech rights have been illegitimately suppressed to “recover court costs and attorney’s fees.” It would require schools to reaffirm their aspiration to remain “neutral on issues of public controversy” in order “to encourage the widest possible range of opinion and dialogue within the university itself.” While granting that any school may limit the use of its facilities “to invited individuals,” the model bill would mandate that any security fees the school charges for a speaking event must “be reasonable, and not based on the content of the speech.” It would also seek to shield student organizations from “discrimination based on the content of the organization’s expression or membership requirements.”
The remaining measures proposed by the Goldwater model bill aim to enhance transparency. It would require schools to inform all students of their official policy regarding free speech and debate. And it would authorize creation of a special subcommittee of each public university’s governing board (board of trustees) to issue a yearly report to “the public, the trustees, the governor, and the legislature on the administrative handling of free-speech issues.”
The hope of the model bill’s authors is to create incentives that would lead both students and administrators to “respect and protect the free expression of others.”
Nebraska is but the latest state to share this hope and to seek to make it law. Since Goldwater introduced its model bill last January, at least twelve states have considered or are now in the process of considering bills inspired by its model. Last summer, North Carolina passed the Restore Campus Free Speech Act. Not waiting for its state legislature to have to act, the University of Wisconsin System also recently adopted Goldwater-based measures.
Legislation based on the model has also been championed in the Michigan and Wisconsin legislatures. The Goldwater Institute finds that “related legislation is in the works in Arizona, California, Georgia, Illinois, Minnesota, Tennessee, Virginia, and Wyoming."
A survey conducted by The Chronicle of Higher Education provides another list of states where free-speech proposals are on the legislative dockets. A California lawmaker offered a bill that would prohibit its public colleges and universities from disinviting speakers and would ban any existing campus speech codes. The Illinois House of Representatives considered a bill last session that would require its public colleges and universities to suspend or expel any student who is found guilty twice of infringing on the free-speech rights of others. The legislatures of Michigan, Texas, and Wisconsin also saw the introduction of similar bills in the past year.
None of these bills became law in the above-listed states, but success was achieved in others, in addition to North Carolina. Colorado’s governor signed a bill into law last April that prohibits all its public colleges and universities from limiting campus speech to “free-speech zones” alone. The Louisiana legislature also passed a free-speech bill last year, but it was vetoed by Governor John Bel Edwards.
Last March, Utah’s governor signed a bill that articulates a model free-speech policy and includes legal penalties for those who violate others’ free-speech rights. In Virginia, a bill was passed by legislators and signed by the governor that mandates: “No public institution of higher education shall abridge the constitutional freedom of any individual, including enrolled students, faculty, and other employees and invited guests to speak on campus.”
Finally, last May, the Campus Free Speech Protection Act was signed into law by Tennessee Governor Bill Haslam after passing both the Tennessee House of Representatives and Senate by overwhelming majorities (85-7 in the House, and 30-0 in the Senate).
Although the successful free-speech bills vary in their terms, all seem to unite in the conviction that campus shout-downs (through the "heckler's veto") and/or dis-invitations of speakers on public, taxpayer-funded campuses is both unconstitutional and toxic to democratic deliberation.
When college students study Plato’s Republic, they learn of the tyrannical implications of Thrasymachus’s argument that political justice is only “the advantage of the stronger,” or, as it has come to be known, “might makes right.” In The Republic, Socrates has the freedom to debate and therewith to defeat Thrasymachus. But free speech will be defeated if we come to believe that the “heckler’s veto”—through which too many speakers have been shut down on campuses of late—is itself an equally legitimate exercise of free speech.
The heckler’s veto, if tolerated, will teach our students that justice is the advantage of those with stronger vocal cords, of those who are more passionate and angry, of those who better intimidate others from speaking. But the health of any democracy requires that we endeavor to subordinate passion to reason and refuse to intimidate into silence those with whom we disagree. Such moral and intellectual self-restraint is indispensable to ensuring that our public disagreements—and such disagreements will always be with us—are rational, peaceful, and constructive. For all these reasons, friends of democracy should be heartened by the efforts nationwide to restore the freedom to disagree on campus, without which no genuine learning can take place.