Words Fly on Free Speech Bill

Critics of proposed legislation to ensure First Amendment rights at Wisconsin public universities say it could backfire and limit expression. Requirement for political neutrality alarms professors and administrators alike.

May 15, 2017
 
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Numerous states are considering legislation designed to ensure free speech on college campuses, following violent protests over speakers at the University of California, Berkeley, and Middlebury College. Some of the bills would, controversially, mandate punishing students who disrupt campus speakers and require institutions to keep mum on political issues -- and perhaps nowhere has the debate been as contentious as in Wisconsin.

Republican lawmakers who support a bill there say it would ensure all views may be heard across public universities. Those opposed question the proposal’s scope and see it as one more legislative incursion into academic life. That’s following last session’s gutting of legal protections for tenure in Wisconsin.

“In any public forum, and particularly at a public university, any attempts to limit expression must be done with extreme caution, reflecting compelling institutional interests and respecting the First Amendment,” David Vanness, an associate professor of population health sciences at the University of Wisconsin at Madison, told legislators last week during a Wisconsin Assembly higher education committee hearing on the so-called Kremer bill. It's backed by key Republicans, including Speaker Robin Vos.

Saying that state universities should serve as “the great supercolliders of ideas,” Vanness told legislators that he agreed with much of the bill's intent. Yet he’s “extremely concerned that, as drafted, a combination of ambiguous language and mandatory sanctions will have the perverse effect of chilling constitutionally protected expression” on campus, he said.

Under the bill, “protests and demonstrations that interfere with the rights of others to engage in or listen to expressive activity shall not be permitted and shall be subject to sanction.” Namely, students who have twice been found responsible “for interfering with the expressive rights of others” would face a one-semester suspension at minimum, up to possible expulsion.

Vanness and other critics of the bill have argued that “expressive activities” is overly broad, legally and otherwise. Joe Cohn, legislative and policy director for the Foundation for Individual Rights in Education, said in an interview that there’s ample legal precedent to better align the bill with the Constitution. Instead of mere “boisterous or effusive speech,” he said, the law should apply only to students who inhibit the speech rights of others through “substantial and material" disruption.

Referring to the case at Middlebury, in which a professor was injured after a talk by Charles Murray, Cohn said there’s a big difference between a protester who “hits a faculty moderator in the face” and a “person in the back of a crowd of 50.”

Objecting, too, to set punishments for any protester, Cohn asked how administrators should follow the law, as proposed. Do they “punish the four blocking the door,” he asked, or “come down like a hammer on all 50?” FIRE doesn’t necessarily object to mandated punishment for repeat student offenders, Cohn said, but states that adopt such laws should leave room for the punishment to fit the violation.

A third piece of the bill would require institutions to stay neutral on political issues -- something that’s puzzled more than a few administrators who have wondered whether that would mean refraining even from political discussions with direct implications for their campuses, such as budgets. Not only do college leaders regularly speak out about budget matters, but many also have actively participated in public policy discussions on international students, for example.

Cohn said FIRE also objects to a blanket policy of institutional neutrality on political policy matters and has communicated all three of its major concerns to the bill’s author, Republican Representative Jesse Kremer.

Kremer reportedly told the Associated Press early this month that he planned to pare down the bill to consider only violence or disorderly conduct. Yet he appeared to back away from that commitment during the hearing, saying he’d amend the bill “if need be.” Then on Twitter hours later he announced, “As promised, there will be an amendment.”

John Lucas, spokesperson for the Madison campus, also seemed to oppose specific sanctions for violations of others’ expressive rights, saying in a statement that they inhibit the “ability of a disciplinary committee to weigh all of the factors present in such situations and impose an appropriate sanction.”

Both Madison and the Wisconsin university system have existing policies on free speech, Lucas said, urging the Legislature “to work with the [system’s] Board of Regents to identify policies that will address the free exchange of ideas and need for order, while respecting the existing student conduct process that has served institutions well for many years.”

The university system hasn’t opposed or supported the bill publicly, and a system spokesperson did not immediately respond to request for comment. During the hearing, Jessica Tormey, chief of staff for System President Ray Cross, reportedly called Republicans’ criticism that too few conservative speakers have been invited to speak on campus "legitimate."

Asked about the institutional neutrality issue, Joe Gow, chancellor of the University of Wisconsin at La Crosse, said he wanted clarification on what it meant -- such as whether he and his fellow chancellors might comment on budget matters, for instance.

Officially, Gow said, La Crosse hasn't taken a position on the proposed legislation because it's never had an incident like the ones at Berkeley or Middlebury. In 10 years on campus, he added, "I've witnessed many demonstrations and protest speeches, and I've never seen anyone shut down by counter demonstrators." The current policy is to have university police present at public events where there may be "controversy and conflict, but our police only would intervene if actual physical violence were to occur," he said, but, thankfully, "they've never had to intervene. We think our current policy provides a good defense of free speech on our campus." 

He also praised a new free speech law in Tennessee that’s been lauded by FIRE and other groups for strengthening the First Amendment on campuses without requiring punishments for disrupters. The bill abolishes designated free speech zones for demonstrators and otherwise affirms free speech protections, but doesn't mandate or outline punishments for those who infringe on others' rights.

"It's not punitive," Gow said of the Tennessee law. "They've outlined the principles of what they want to accomplish and encouraged it," rather than outlined sanctions.

John K. Wilson, co-editor of the American Association of University Professors' "Academe" blog and a free speech expert, previously criticized another, failed Tennessee bill that's much more similar to the one being floated in Wisconsin. He wrote in "Academe" last week that the new law is, "to my complete shock, a really good law that strongly protects free speech on campus."

Christina Berchini, a professor of teacher education at the University of Wisconsin at Eau Claire who studies whiteness -- a field that has been criticized this year by state lawmakers -- questioned the idea of political “neutrality,” saying the “very act of silencing and punishing student protests is a political act, and a direct violation of what we understand free speech to mean. The whole thing is an exercise in irony, at best, and sets a dangerous precedent, at worst.”

Describing political neutrality within the university as a slippery slope, Berchini asked where it might end. For example, she said, “I teach about white supremacy. How, exactly, does one handle such topics in a neutral way?”

Kremer’s bill was inspired, in part, by model legislation from the Goldwater Institute, a conservative and libertarian think tank, and co-authored by Stanley Kurtz, a senior fellow at the Ethics and Public Policy Center who has written frequently about campus speech debates for the National Review. “As both a deeply held commitment and a living tradition, freedom of speech is dying on our college campuses and is increasingly imperiled in society at large,” it says. “Nowhere is the need for open debate more important than on America’s college campuses.”

Among other things, it says that “any student who has twice been found guilty of infringing the expressive rights of others will be suspended for a minimum of one year, or expelled.”

The model says that it’s inspired in part by the University of Chicago’s 2015 Stone Report on free speech, which articulates the institution's commitment to uninhibited debate. Chicago also recently released a report recommending punishments for those who disrupt campus speech, though it says that sanctions should be developed by a campus committee on a case-by-case basis. Chicago has also not barred its own leaders from speaking on political matters.

Other Wisconsin Republicans plan to introduce their own campus speech bill, according to the Associated Press. Even broader than Kremer’s bill, it would reportedly also apply to technical colleges and prohibit students from organizing protests that could dissuade speakers from visiting.

Colorado passed a new free speech law abolishing designated free speech zones for demonstrators earlier this year. That bill had bipartisan support and was eventually endorsed by the University of Colorado.

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