BY JOHN K. WILSON
Last week, I criticized a proposal by the Goldwater Institute for model legislation on the “Campus Free Speech Act,” pointing out the flaws of the model and the danger in allowing legislators to dictate campus policies.
On February 9, Tennessee legislators introduced bills in the House and Senate SB1165/HB0739) based upon the flawed Goldwater Institute model, but with some added provisions that make the Tennessee bill much worse. The proposed law, the “Tennessee Freedom of Speech on College Campus Bill,” is also being called by supporters “The MILO Bill.”
At a press conference introducing the legislation (which included a statement from Milo Yiannopoulos), co-sponsor Senator Joey Hensley announced. “Too many times we’ve seen classrooms where the professor doesn’t want to hear both sides of an issue, we’ve heard stories from many students that, honestly, are on the conservative side that have those issues stifled in the classroom.” This indicates that the legislation aims to force colleges to adopt policies that give students the right to say anything they want in classes, removing all authority from professors to control classrooms.
This alarming approach was reinforced by Luke Elliot, a student at the University of Tennessee and vice president of the College Republicans, also spoke at the press conference launching this legislation: “Students are often intimidated by the academic elite in the classroom, Tennessee is a conservative state, we will not allow out of touch professors with no real world experience to intimidate eighteen-year-olds.”
And, in fact, that’s exactly what the legislation does: It invents a brand new right imposed by state law for students to say anything they want in class, even if it’s disconnected from the content of the course, and leaves professors completely powerless to stop students and keep a class on track for what it’s supposed to cover.
The bill “allows students to be free to discuss and express any views that are relevant to the subject matter presented by the instructor or other class members.” This is an alarming restriction on the ability of faculty to control the classroom. If a student decides to interrupt a class about math by talking about the Holocaust, this law prohibits a professor from saying, “let’s get back to today’s material.” Instead, the professor is obligated to allow any student to express any views relevant to the Holocaust (for example, denying its existence), and then must allow every other student to express their views on the subject, even though the professor never brought up the subject at all. It is a ridiculous rule. Now it may be imposed by state legislation in every public college in Tennessee. One can easily imagine the mischief that bored students could cause by hijacking classes for their personal debates.
Now, Tennessee legislators might respond that they already thought of this problem and provided a solution in the law, which “gives faculty the right to regulate class speech; provided, that the faculty regulates the speech in a viewpoint- and content-neutral manner.”
But this only makes things worse. It is very difficult to control a classroom in a viewpoint-neutral manner, and it is almost impossible to control a classroom in a content-neutral manner. What does viewpoint neutrality mean? It means that in a class about German history, a professor who allows students to discuss the Holocaust must also provide students equal time to deny the Holocaust ever happened. What does content neutrality mean? It means that in a math class, a professor who allows students to ask questions about math must also allow students to ask questions denying the Holocaust. Viewpoint and content neutrality are appropriate concepts for a public forum (you don’t want a university banning student group events based on viewpoint or content), but not for a teacher running a classroom. A content-neutral regulation would be saying that students only get one minute each to talk during class, but it doesn’t allow the professor to control in any way what students talk about, because that’s content.
Just when you might think Tennessee legislators are trying to micromanage classrooms to misguidedly expand student freedoms in truly awful ways, they added in an incredibly repressive rule that actually silences the free speech of students: “Recognizes that, in exercising this freedom, the student shall not interfere with the academic process of the class by speaking to or behaving toward others in a manner constituting unwelcome, targeted conduct that is so severe, pervasive, and objectively offensive, and that doing so undermines and detracts from the educational experience of those to whom the speech or behavior is targeted, that the targeted person is effectively denied equal access to the resources and opportunities of state institutions of higher education.”
This is an alarming limit on freedom, one that goes far beyond rules defining harassment. It forces all colleges to create an outright ban (“shall not”) on “unwelcome targeted conduct” that is “offensive” and “detracts from the educational experience” of those who are targeted. For example, suppose that a student says something controversial and another student says, “Joe, I think that’s anti-Semitic.” Being called anti-Semitic is unwelcome and targeted. It is offensive to the person called anti-Semitic. And being called anti-Semitic detracts from the student’s educational experience because it makes them feel bad or angry. But it’s not harassment, and the state legislature should not be banning students from saying offensive things to one another, as this bill does.
At the press conference for the bill, Senator Hensley declared, “We don’t want to allow hate speech or offensive speech but certainly when it comes to political issues, every student should have their right to expression, and this bill goes towards that, trying to allow these students to have their right for free expression.” It’s very troubling that the senator who introduced the bill to protect “free speech” on campus thinks that “offensive speech” should not be allowed on campus.
Last year, the Tennessee legislature cut $436,000 from the University of Tennessee at Knoxville diversity and inclusion programs, and sought to ban funding for Sex Week programs. (The new bill’s co-sponsors, Martin Daniel and Hensley, both supported that measure.)
The bill also declares that state colleges “may require any person who is not employed by the institution or enrolled at the institution as a student to obtain prior permission or a permit from the institution before engaging in the expressive activity.”
This is a very frightening provision. The legislators might have imagined that they were only regulating itinerant preachers in public spaces, but the way it is written, it could apply to any outside person invited to give a speech on campus, or any community member who wants to attend a protest on campus. Allowing colleges to require advance permission from the administration for any speaker greatly increases the danger of censorship.
The legislative repression also extends to colleges: “the institution shall strive to remain neutral on the public policy controversies of the day,” a vague and undefined standard that could be used by administrators to silence individual students and faculty.
The Tennessee bill adds new circumstances where colleges are allowed to silence free expression: “An unjustifiable invasion of privacy or confidentiality” and “an action that directly conflicts with the function of the university.” Privacy is a very vague standard for limiting expression. But the final provision is by far the worst. No one knows what qualifies as “the function of the university” or what violates it. If civil debate is a function of the university, is incivility a punishable offense? If discovering the truth is a function of the university, can a student by punished for expressing the wrong ideas?
The bill also provides another major exception to free speech on campuses: “disrupting essential activities and functions of the institution,” which includes “obstructing vehicular or pedestrian traffic on or adjacent to the institution” or “interfering with classes, meetings, events, or ceremonies or with other essential processes of the institution.” Nothing in the bill defines what “interfering” or “obstructing” means. For most college campuses, these new rules would be far more repressive than the status quo, and colleges would be required to be much more restrictive of campus protests.
The bill adds, “Nothing in this section shall require the institutions of higher education to fund expenses associated with student speech or expression.” This an alarming section because it encourages colleges to charge student groups for any security costs for controversial speakers, which has been a common tool of censorship used on campuses.
The “Tennessee Freedom of Speech on College Campus Bill” is a disaster for everyone. It imposes bizarre and burdensome regulations that administrators will struggle to understand and implement. It takes away from professors the ability to control the classroom and threatens their academic freedom. And it subjects students and staff to repressive new rules that can easily be abused to punish campus protest and dissent. This proposed law isn’t a defense of free speech, it’s an attack on it.