The Flaws of the Campus Free Speech Act

BY JOHN K. WILSON

The Goldwater Institute, a right-wing think tank working along with National Review writer Stanley Kurtz, has issued a new report calling for model legislation to impose more free speech on campus with a model “Campus Free Speech Act” intended to be imposed on every public college by state legislatures.

The biggest problem with the Goldwater Institute proposal is that it uses legislation rather than persuasion to accomplish its goals. Allowing state legislatures to micromanage college campuses is a dangerous precedent. If politicians can impose free speech on campuses, they can also impose censorship on campuses. In general, the effect of legislators has been to suppress free speech much more than to expand it. It is rather ironic that in the name of free speech, the “Campus Free Speech Act” forces public colleges to issue numerous statements about free speech that are highly dubious. So trying to impose free speech on universities is a dangerous tactic. Even if the Goldwater Institute proposal were perfect, it should be opposed.

But this proposal is far from perfect. It includes some shoddy technical problems (it only applies to the Board of Trustees of the “state university system,” unaware that many states have multiple boards for different universities and apparently unconcerned about free speech at community colleges). Because of a misplaced dash, section 3 accidentally limits free speech to those with a “reasonable viewpoint,” which would make free speech far worse in any state that actually enacted this text as written.

It also fails to address many issues involved in free expression on campus, such as the common (and repressive) tactic of forcing student groups to pay for security when speakers are threatened.

And the values imposed by the proposal are often deeply flawed. Consider these provisions:

“5. That the campuses of the institution are open to any speaker whom students, student groups, or members of the faculty have invited.”

This would impose a dramatic change in how speakers are invited by college campuses, to allow individual students to invite any speaker they want to campus without needing a student organization behind it. I’m not necessarily opposed to the idea, but it is a radical change to impose on colleges by legislation.

“9. Any student who has twice been found responsible for infringing the expressive rights of others will be suspended for a minimum of one year, or expelled.”

Mandatory minimums are generally a very bad idea contrary to the interests of justice, and this is no exception to the rule. Why should students receive a minimum suspension of one year even if the penalty they deserve would be far less severe? After all, even students who commit sexual violence are not subject to minimum suspensions dictated by legislators (but that would be the next obvious step if this proposal is enacted). Suppose that a student is found responsible for a very minor violation of the rights of others. The fear of being accused of another offense might lead students to silence themselves. There’s also the problem that a university could choose to charge a student with two different offenses at a campus protest, and then the student would technically need to be suspended for a year if guilty of both of them. Considering that Kurtz himself has declared that “interrupting” a speaker is “tyranny, pure and simple, and cannot be tolerated by any community that cherishes and protects free expression,” it is quite possible to read this legislation to require suspension for a year of any student who heckles a speaker twice.

“10. That the institution (1) shall strive to remain neutral, as an institution, on the public policy controversies of the day”

This is a particularly dangerous provision in legislation. In essence, this is the government ordering universities not to criticize the government. What does institutional neutrality mean, anyway? After all, institutions take positions on all sorts of issues, such as affirmative action, the value of diversity, and the importance of public support for higher education and reducing student debt. Why should universities collectively be silenced when other institutions face no similar repression? And who defines what the institution is? Would this include declarations by the faculty senate and the student government? Could it be used to ban speakers deemed too liberal by the legislature and impose an “equal time” requirement for conservatives? Could it be used to ban lobbying by a university, as the report seems to urge (“it is not a lobby”)? Would it be used to silence university presidents and prevent them by law from expressing their personal opinions? Imposing this kind of extreme relativism by legislative fiat is a dangerous idea.

The Goldwater Institute proposal should be rejected and opposed in every state legislature. It includes some worthy ideas for colleges to adopt to protect free expression on campus, but they are outweighed by the flawed provisions and the use of legislative repression to achieve these goals.

Instead, what we need are well-written model policies, based on the best existing campus policies, that provide for broad protection of free speech on campus. This year, with the 50th anniversary of the Joint Statement on Student Rights, the AAUP needs to take the lead in creating this model policies, and urging colleges to adopt them, before bad proposals like those of the Goldwater Institute are enacted by legislators.

One thought on “The Flaws of the Campus Free Speech Act

  1. Pingback: The Tennessee Legislature’s Attack on Free Speech | ACADEME BLOG

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