BY MICHAEL BEHRENT

The “free speech” policy currently  under consideration by the University of North Carolina Board of Governors could impose a “chill” on “constitutionally protected speech” on UNC campuses, according to a prominent First Amendment Scholar.

Officers of the North Carolina Conference of the American Association of University Professors (AAUP) recently spoke with Professor William P. Marshall of the UNC School of Law about the proposed policy, which will be considered at the Board of Governors’ November 3 meeting in Chapel Hill. “My quick analysis,” Professor Marshall said, “is that the policy is overbroad and will work to chill constitutionally protected speech.”

The Board of Governors’ policy was created pursuant to the “North Carolina Restore Campus Free Speech Act,” which the North Carolina legislature passed earlier this year, becoming law (S.L. 2017-96) on July 31, 2017. The law was directly inspired by a proposal by the Goldwater Institute, a conservative think tank. The legislation’s premise is that free speech is under attack on American campuses. Among other provisions, the law places strict disciplinary measures against individuals accused of violating the free speech rights of others, says that universities ought to be neutral on public issues, and empowers the Board of Governors to issue annual reports on campus free speech.

On Monday, October 30, the Board of Governors published on its website a draft of the “free speech” policy to be considered at its November 3 meeting. The policy, drafted by the Board’s Committee on University Governance, is entitled “Free Speech and Free Expression Within the University of North Carolina” (it is available here, item A-4). . The proposed policy would prohibit expression that “substantially interferes with the protected free speech rights of others,” including “protests and demonstrations that materially infringe upon the rights of others to engage in and listen to expressive activity when the expressive activity (1) has been scheduled pursuant to this policy or other relevant institutional policy, and (2) is located in a nonpublic forum” (p. 20). The Board’s policy also appears to create new restrictions not found in the law itself, notably by inventing such terms as “acceptable forms of dissent” (p. 20) and “expressive activity event[s] … closed to the public” (p. 20). On Thursday, November 2, the committee unanimously approved the policy. Professor Marshall, who is William Rand Kenan, Jr. Distinguished Professor of Law at UNC-Chapel Hill and a widely published authority on the First Amendment, expressed particular concern about how this policy could be applied to restrict students’ constitutionally protected freedom of speech.

“Taken literally,” Professor Marshall explained, “this policy means that a student could be sanctioned for protesting (or maybe even just vehemently disagreeing) with an unscheduled speaker (which presumably could mean anybody including a fellow student) almost anywhere on campus—given that the word ‘speaker’ is not defined and most areas of college campuses are nonpublic fora. This means students could be disciplined if they attempted to shout down a speaker outside their dorm room or eating hall.”

Professor Marshall added that the “policy and statute are unclear as to what it means to interfere with the rights of others to “listen to expressive activity.’ Is speaking too loudly near an unscheduled speaker sanctionable? Is trying to talk over the speech of another person a possible subject of discipline? The policy discusses actual physical obstruction with access or egress to the location where the speaker is speaking but the language of both the policy and the statute reach far more than physical obstruction.” For these reasons, Professor Marshall fears the policy may be “inconsistent” with the First Amendment. “As the policy purports to recognize,” he says, “the first amendment protects both speech and counter speech. The approach taken by both the policy and the statute, however, creates a preference for only one type of speech that is inconsistent with first amendment principles and treads far too broadly into core first amendment expression.”

Given the likelihood that the UNC Board of Governor’s’ proposed free speech policy may be inconsistent with First Amendment protections and seems likely to discourage protected speech on UNC campuses, the North Carolina State Conference of the AAUP calls on the Board of Governors to reject the policy in its current form.

– The Goldwater Institute’s original campus “free speech” proposal is available here.
– Professor William P. Marshall’s UNC School of Law website is available here.

Michael Behrent is vice-president of the North Carolina State AAUP conference and associate professor of History at Appalachian State University.