BY HANK REICHMAN

This summer the North Carolina Restore Campus Free Speech Act, passed earlier in the year by the state legislature, went into effect.  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 mandates 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 calls on public universities to issue annual reports on campus free speech.

On Friday, December 15, the Board of Governors of the University of North Carolina system will vote on the policy to implement the law across the 17 campuses of the UNC system.  It would make dissent unsafe, will chill healthy academic debate, and creates a preference for some forms of speech over others.  As Michael Behrent, Associate Professor of History at Appalachian State University and Vice President of the North Carolina state conference of the AAUP, reported on this blog in November, the policy would create new restrictions not found in the law itself, notably by inventing such terms as “acceptable forms of dissent.”  William P. Marshall, William Rand Kenan, Jr. Distinguished Professor of Law at the UNC School of Law, called the proposed policy “overbroad and will work to chill constitutionally protected speech.”

The policy prohibits expression that “substantially interferes with the protected free speech rights of others,” a provision so broadly defined it could potentially be used to discipline any student who disagrees vocally with a speaker, anywhere on campus.  As Behrent reported,

“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.”

By focusing on disruption of speakers the policy demonstrates a marked preference for speech over counter-speech, in violation of the First Amendment.  In a piece published today on NC Policy Watch, Behrendt and Jay Smith, Professor of History at UNC-Chapel Hill, note:

“All speech is free, but some speech is more free than others.” This seems to be the motto of the current members of the University of North Carolina’s Board of Governors and their General Assembly backers. Like the dictatorial pigs in Orwell’s Animal Farm—who declared “all animals are equal, but some animals are more equal than others”—the Board is putting a noble veneer on self-serving and disingenuous arguments. . . .

The Board . . . sees higher education as a hostile power. . . .  But even as they champion freedom and diversity of opinion, they subscribe to the troubling notion that every social institution must be ideologically balanced. The idea of critical inquiry has undoubtedly attracted liberals to the academic profession. But academe is not the only institution with pronounced political sympathies. The military, for instance, overwhelmingly votes Republican. Should liberals insist on ideological balance among those to whom we entrust our protection? Yet this is precisely what the Board wants for UNC.

The great irony is that the very people who want to make universities “diverse” also embrace the conservative belief that the state always stumbles when it tells society what to do. The Board and the legislature are, in this respect, socialists—precisely in the sense that the Right uses the term. In attempting to inject the “correct” balance of opinion into university life, they are engaging in the kind of social engineering conservatives have always denounced. Reagan famously said that “government is the problem.” On the issue of campus free speech, the Board believes that government is the solution. When it comes to expressing your beliefs, the Board knows what’s best for you.

The North Carolina AAUP is collecting signatures from UNC faculty members and friends on an online petition urging the Board of Governors to reject the proposed policy.  It may be accessed here.