Wrong Answer: PEN America White Paper Questions Campus “Free Speech” Laws

BY HANK REICHMAN

Tennessee, North Carolina, and Wisconsin have already enacted comprehensive new campus speech laws based on model legislation proposed by the Goldwater Institute, which in critical respects defend free speech by attacking it.  (I discussed this legislation previously in a section of one of my lengthy posts on outside speakers, under the subtitle “Some Cures Are Worse Than the Illness.”)  Similar proposals have been introduced or are under consideration in Michigan and Illinois.  Now, as the University of North Carolina Board of Governors prepares to vote on a policy to implement that state’s law in ways that would create new restrictions not found in the law itself, the PEN American Center has released a 27-page white paper, Wrong Answer: How Good Faith Attempts to Address Free Speech and Anti-Semitism on Campus Could Backfire, which carefully analyzes the Goldwater Institute model and a dozen proposed or passed state bills. The report also addresses the Anti-Semitism Awareness Act, a bill that was passed in late 2016 by the U.S. Senate.

While the state bills are supposedly intended to foster respect for civil rights and open expression, and contain certain elements that PEN believes would advance these objectives, the white paper critiques specific provisions that pose serious risks for free speech. The organization outlines concerns, for instance, that “mandatory minimum” punishments—including year-long suspension or expulsion—for repeated conduct judged to interfere with vaguely-defined “expressive rights” could be used to deter and discipline peaceful protesters.  “In sum,” the white paper says, “while PEN America strongly supports legislation to do away with free speech zones on public college campuses—and urges private campuses to follow suit—PEN America is skeptical that more aggressive legislative measures are warranted, and that they will protect more speech than they chill.”

Analyzing the Goldwater Institute model bill, the white paper’s executive summary concludes:

There are a number of provisions in the Goldwater bill that PEN America does not oppose, though they do not outweigh the potential danger to free speech in the other elements of the legislation. These positive aspects include:

• A preamble with a strong articulation of the importance of free speech on campus;
• Mandating a system-wide policy that protects free speech as a “fundamental right,” bars free speech zones, recognizes the right of students to spontaneously gather and protest, opens campus to any speaker that students or faculty would want to hear from, bars higher security fees because of controversial speakers, and requires security for speakers;
• Protects faculty, administrators, students, and staff when they speak about public controversies;
• Requires training and the dissemination of the free speech policy in orientation materials;
• Bars discipline for speech protected by the First Amendment;
• Provides students and staff with the ability to sue the school for violations of speech rights.

PEN America strongly opposes the following provisions, however:

• Overbroad and vague definitions of “expressive rights” that could cover protests that do not pose physical danger to speakers or prevent speakers from speaking or being heard;
• Overly punitive disciplinary measures that could result in a lengthy suspension or expulsion of students who haven’t broken any law, denied a speaker the right to be heard, or otherwise exercised a “heckler’s veto;”
• The approach taken to the establishment of committees to oversee implementation of the law, which appears to be subject to significant political influence and the risk of politicization (by, for instance, having the governing board of the school system, which is usually appointed by the legislature and governor, appoint the oversight committee); and
• A prohibition on the institution itself taking a position taking a position on public policy issues that may prevent it from acting ethically as an institution of higher learning.

The Goldwater proposal deserves plaudits for addressing growing threats to free expression, deriving from all sides of the political spectrum, on public college campuses. But it goes too far. Its discipline would be visited on precisely those young students who society should encourage to aggressively question authority, think critically, and discuss public policy without constraint. Of course no one should deny a campus speaker the ability to speak, and certainly no one should engage in physical violence. Existing laws, however, are adequate to deal with these offenses, and should be deployed to do so.

When calibrating campus policies, however, to preserve both free speech and campus safety, the last thing the schools should be doing is defining “speech crimes” in vague or overbroad ways, and permitting draconian punishments that could severely impair an academic or professional career.

In the white paper, PEN America analyzes in detail the Goldwater proposal, and also surveys state legislation and enacted laws based on the proposal.

The Anti-Semitism Awareness Act, which passed the Senate in December 2016 but was not taken up in the House of Representatives, would require the Department of Education to consider in civil rights cases a definition of anti-Semitism that has been adopted by the State Department as guidance and was based on a European definition used by data gatherers to identify anti-Semitism with respect to speech about Israel.  (For an extensive discussion of the problems posed by this definition and legislation based on it for free expression see “How Legislative Efforts to Define Antisemitism Threaten Academic Freedom,” by Kenneth Stern and Enrst Benjamin, published on this blog in May.)

Congress has not yet reintroduced the bill, but PEN is concerned that this may soon happen.  PEN America fears that

this expansive definition would lead to a number of unintended consequences. These include overenforcement on college campuses because of the breadth of the definition, including censoring speech that is merely critical of Israeli policies, or of the historical justification and means of the creation of the state of Israel. It could also include self-censorship by students concerned about facing discipline, or aggressive investigations by the Department of Education, which could themselves chill robust discourse and debate.

The white paper concludes:

Part of the reason for protecting free speech on public college campuses is precisely because they are arguably the most important forums where students can form, challenge, define, refine, and even change their views of the world, and opinions on crucial matters of the day. . . .

Lest we forget, however, part of that awakening is growing up.  And part of growing up is making mistakes, being offensive, being strident, or perhaps going too far in service of one’s developing convictions. School discipline isn’t criminal law, but lengthy suspensions and expulsion have real consequences academically and professionally.

Any campus free speech law should endeavor to strike the appropriate balance between deterring and disciplining attempts to deny speakers the ability to speak (an actual “heckler’s veto”), and recognizing that 18-year old undergraduate students make mistakes.

PEN America is the largest of more than 100 centers of PEN International.  It describes its members as “a nationwide community of novelists, journalists, editors, poets, essayists, playwrights, publishers, translators, agents, and other professionals, and an even larger network of devoted readers and supporters.”  Its mission is “to unite writers and their allies to celebrate creative expression and defend the liberties that make it possible.”

The organization has become increasingly active on the question of campus free speech.  In November 2016, PEN America published And Campus for All, a report that analyzed conflicts across the country over trigger warnings, safe spaces, and who is entitled to be heard – cases, the report found, that the media too often decontextualize, distort and sensationalize. That report concluded that themes of diversity and free expression have been needlessly pitted against one another when they can and should be joined.  It received wide attention.

The new white paper is a welcome intervention.  The AAUP in May 2017 issued a statement opposing “any legislation that interferes with the institutional autonomy of colleges and universities by undermining the role of faculty, administration, and governing board in institutional decision-making and the role of students in the formulation and application of institutional policies affecting student affairs.”  Although the AAUP, like PEN, strongly supports freedom of expression on campus and the rights of faculty and students to invite speakers of their choosing, the statement concluded that

The appropriate institutional regulations on campus free speech and protest, the invitation of outside speakers, and student discipline should be adopted through normal channels of institutional governance, and such regulations should be consistent with Association-approved statements onFreedom of Expression and Campus Speech Codes, Academic Freedom and Outside Speakers, and the Joint Statement on Rights and Freedoms of Students.

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