Jonathan Friedman is project director for campus free speech at PEN America. Soraya Ferdman is project assistant at PEN America.
Two bills recently signed into law in Alabama and Texas are similar to those enacted in Arizona, North Carolina and Louisiana in recent years. Each stems from a model bill put forth in 2017 by the Goldwater Institute, a libertarian think tank in Arizona. These laws generally bar “free speech zones,” limit the ability of administrators to cancel events with invited speakers and aim to protect the speech rights of individuals on campus grounds.
But elements in this legislation could chill counter-speech and dissent. Of concern are provisions that direct colleges to establish “disciplinary sanctions” for those who “materially and substantially disrupt the free expression of others” (Alabama) or “unduly interfere with the expressive activities of others” (Texas).
While the language might seem reasonable to deter shouting, disrupting or preventing a speaker from being heard, it is vague in its implications and risks creating a mechanism for administrators to suppress legitimate speech. While claiming to prevent the “heckler’s veto,” these laws instead risk introducing a “speaker’s veto,” whereby one set of speakers can use the threat of discipline to chill those who speak out against them.
Students can go too far in disrupting speakers, as some recent events have shown. But there are also cases in which legitimate protest has come under scrutiny unfairly. This year, students in Utah were detained and questioned for holding up a banner toward the close of an event. In Wisconsin, students were blamed for disrupting a speech that never even began. Neither example rises to the level of “material and substantial disruption” or “undue interference” with a speaker. But under these laws, someone could claim this was the case and exert pressure on administrators to discipline students.
Dissent is crucial in the marketplace of ideas. Counter-speech, even when it offends, is a cardinal companion to free speech. Students should be free to hold signs, stand with their backs to a speaker or stage peaceful walkouts. Sometimes even a degree of heckling might be tolerated or managed without resorting to shutting down an event.
In Alabama, the new law does contain some caveats. It stipulates that “conduct that materially and substantially disrupts” shall not include outdoor protests protected by the First Amendment, or “minor, brief, or fleeting nonviolent disruptions of events.” But students who engage in a loud, sustained protest, even if they still permit a speaker to be heard, could nonetheless be targeted under this law. As in Texas, the law still sets up a scenario that pits one person’s right to free speech against another’s, encouraging the flawed notion that for some to speak, others must be wholly silenced.
The point is not that there should be no firm lines or consequences for disruption, but that, as constitutional law experts Howard Gillman and Erwin Chemerinsky have pointed out, every case of student demonstration requires administrators to make “judgment calls.” Administrators should have the flexibility to balance competing speech rights and to consider a range of responses, with only some that are punitive.
Such judgment calls become more difficult when administrators have a political incentive to please partisan legislators who control their schools’ purse strings. And by prioritizing some forms of expression over others, these laws increase the likelihood that the protections afforded by the First Amendment will be invoked unevenly to the detriment of those who opt to engage in protest.
We have already seen the dangers of laws like this in Arizona, where three students were arrested and faced possible jail time for protesting an on-campus career day presentation by two Border Patrol agents in March. The students spoke from outside the classroom where the agents were talking and then followed the agents on campus, shouting “murder patrol.” The charges were ultimately dropped, but only after weeks of sustained protest over whether the students’ speech rights had been upheld.
Acknowledging students’ right to protest won’t make campus confrontations easier to resolve. But college is a time for students to experiment, learn and grow. These laws contain provisions to educate students about free speech, but they also — ironically — risk sending them the wrong message.
That is a grave error, given that many of today’s students appear uncertain about supporting free speech. They see the principle used to defend the rights of neo-Nazis and the Westboro Baptist Church, but not to support those who might organize to speak out against them. If states continue to pass these laws, they not only risk alienating the rising generation but also putting free speech on campus in jeopardy.