The Tennessee Legislature’s Defense of Campus Free Speech



Three months ago, I attacked a bill in the Tennessee legislature, the “Tennessee Freedom of Speech on College Campus Bill,” and wrote that it was “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.”

I even spoke at the Tennessee AAUP annual meeting last month about the dangers posed by this bill, and by recent successful efforts by Tennessee legislators to have an NPR reporter fired by the University of Tennessee at Chattanooga.

So you can imagine my surprise when I found out that Tennessee has just enacted the Campus Free Speech Protection Act, and it is, to my complete shock, a really good law that strongly protects free speech on campus.

Here’s my analysis of a few minor problems:

It declares that “Students have a fundamental constitutional right to free speech,” and I only wish that clause included faculty and staff as well.

It says about students and faculty, “they may not substantially obstruct or otherwise substantially interfere with the freedom of others to express views…” Two problems here. One, “interfere” is not clearly defined, and the fact that it goes beyond “obstruct” suggests that it could have a broad interpretation. However, the “substantially” part at least makes it better than most campus codes, and “interfere” is not really worse than the ban on “disruption” common in campus codes. Second, the way this rule is written, colleges are technically only required to ban students and faculty, not staff or the public, from obstructing the freedom of others, although there’s a clear intent here to protect everyone.

Perhaps the worst part of the law says, “faculty shall be cautious in expressing personal views in the classroom and shall be careful not to introduce controversial matters that have no relationship to the subject taught, and especially matters in which they have no special competence or training.” This stigma on expressing “personal views” in a class, imposed by state law, is certainly a bit repressive, as is the direct targeting of “controversial matters” as a bad thing. And, yes, it is very similar to the AAUP’s 1940 Statement of Principles, except that the AAUP statement says faculty “should be careful” not “shall be careful” (as a requirement). And the AAUP statement adds (via the 1970 Interpretive Comments), “The intent of this statement is not to discourage what is ‘controversial.’ Controversy is at the heart of the free academic inquiry which the entire statement is designed to foster,” an important idea omitted from the Tennessee law (and one that Tennessee colleges should add to their provisions).

However, these flaws are ameliorated by the next clause in Tennessee’s law: “no faculty will face adverse employment action for classroom speech, unless it is not reasonably germane to the subject matter of the class as broadly construed, and comprises a substantial portion of classroom instruction.” The “substantial” definition is not altogether clear, but it’s still a very good provision and a strong protection for faculty, probably better than what exists in any current campus code in Tennessee.

There are a few potentially problematic rules, such as this: “An institution shall not restrict students’ free speech only to particular areas of the campus, sometimes known as ‘free speech zones.’” This is one of those well-intentioned rules that could have some unintended consequences. Free speech zones are bad because they limit in free speech in areas, especially outdoors, that are generally open to the public. But this law literally protects free speech in all areas of campus, which technically means people have the right to protest in other people’s offices, classrooms, and even dorm rooms. Section 9 allows for imposing some restrictions that could prevent this. However, it also includes some vague language that allows colleges to “preserve the use of the property for the advancement of the institution’s mission.”

And I do wish that Tennessee legislators would add a provision to their law declaring that they will do their part to protect free speech by refusing to punish colleges with budget cuts for protecting the free speech of students, faculty, and staff, as those same legislators have repeatedly threatened and done in recent years.

Still, in the world of campus conduct codes and state legislation, these are all the smallest of objections. Tennessee’s law seems to be the best ever enacted, and a lot of credit must go to FIRE, because there’s no way Tennessee legislators would ever write anything like this on their own (but at least give them credit for listening to FIRE).

That creates a dilemma for me. I do not like legislative solutions to impose free speech on campus. I would prefer persuade colleges to improve their campus codes, not force them to do it by legislative control. And until now, this was an easy choice to make: Every proposed state law included some awful provisions that made things worse.

The virtue of the Tennessee law is not that it’s “the most comprehensive state legislation protecting free speech on college campuses that we’ve seen be passed anywhere in the country,” as Robert Shipley of FIRE said. The real virtue is that it manages to advance free speech on campus without adding in a bunch of repressive compromises, as the original legislation did and so many other proposals for state laws do. Tennessee’s law is a real model for other states.

I remain skeptical about whether this law will actually accomplish its goals. Many colleges may simply copy over the language without changing some of their other restrictive rules. Real reform means removing every single severe restriction on free speech, not just requiring the addition of some new good language. And even with good codes, bad administrators can violate free speech. The hard work of protecting free speech on campus can’t be accomplished only with legislation, and there is a danger that such laws will encourage further legislative meddling that threatens free speech and academic freedom on campus.

But there’s no denying that this is a real advance for campus free speech in Tennessee.

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