By Lindsie Trego; Symposium Editor (Vol. 16)
The North Carolina legislature passed the Campus Free Speech Act last week, and the bill is now awaiting the governor’s approval. The Act is loosely based on a model bill made by the Goldwater Institute, a Libertarian think tank, and it follows similar bills passed by Colorado, Utah, Virginia, and Tennessee this year.
The trend of Campus Free Speech bills has captured lawmakers’ attention–especially the attention of Republicans– in the wake of sometimes violent campus protests such as those that occurred at Mizzou in 2016 and at Berkeley in February of this year, and also following what advocacy organizations have called a crisis of “disinvitations” of speakers. The Goldwater model bill seeks to address these concerns by (1) requiring campuses to implement policies that affirm the importance of free speech, including striking former speech-restrictive policies; (2) prohibiting disinvitation of speakers; (3) declaring outdoor areas of campus to be public forums, in which free speech enjoys the greatest protection; (4) creating a scheme of disciplinary sanctions for those who “interfere” with others’ free speech rights; (5) requiring free speech policies to be introduced to students at freshman orientation; and (6) establishing a committee to study threats to free speech on campus.
The North Carolina bill does only some of these things: It requires implementation of speech-friendly policies, prohibits disinvitations, asks campuses to create a range of disciplinary sanctions for interfering with the speech rights of others, requires free speech policies to be introduced at orientation, and creates a committee to study threats to free speech on campus.
However, North Carolina’s bill diverges from the Goldwater bill–and from many other states’ laws–in a couple of important ways. Most importantly, the North Carolina bill does not set aside any part of campus as a public or student forum. This is one of the most important things that other states’ bills have done, as creating public forums means ending the widespread problem of “speech zones” by requiring that individuals’ speech rights in those areas be subject only to reasonable and content-neutral time, place, and manner restrictions. Remember when a Michigan community college student dressed up as a T-rex to pass out constitutions on campus and was told by campus police that he was not permitted to continue without administrative approval? This type of provision would likely prevent a similar scenario.
Instead of a provision declaring certain areas to be public forums, North Carolina’s bill states, “Access to campus for purposes of free speech and expression shall be consistent with First Amendment jurisprudence regarding traditional public forums, designated public forums, and nonpublic forums, subject to reasonable time, place, and manner restrictions.” In other words, it does nothing but maintain the status quo in regard to which parts of campuses administrators interpret to be public, designated, and nonpublic forums.
Second, North Carolina’s bill diverges from others in its instruction regarding discipline of those who interfere with the free speech rights of others. The Goldwater bill says, “The policy shall include a range of disciplinary sanctions for anyone under the jurisdiction of the institution who interferes with the free expression of others,” and “Any student who has twice been found responsible for infringing the expressive rights of others will be suspended for a minimum of one year, or expelled.” North Carolina’s bill, on the other hand: “The constituent institution shall implement a range of disciplinary sanctions for anyone under the jurisdiction of a constituent institution who substantially disrupts the functioning of the constituent institution or substantially interferes with the protected free expression rights of others, including protests and demonstrations that infringe upon the rights of others to engage in and listen to expressive activity when the expressive activity has been scheduled pursuant to this policy or is located in a nonpublic forum.”
There are a few differences to note in this section. First, North Carolina’s bill does not require one year suspensions or expulsions for those found responsible for interfering with others’ free speech rights twice, as the Goldwater model does. Second, North Carolina’s bill uses the phrase “substantially interferes” instead of simply “interferes.” Some First Amendment advocates have been concerned that “interferes,” is vague and may be applied in an overbroad manner to discipline those who participate in counter-speech. “Substantially interferes” may resolve some of that concern, although it may be similarly vague and could still be applied in an overbroad manner. Third, North Carolina’s bill specifically mentions protests and demonstrations as vehicles for “substantially interfer[ing]” with others’ expression rights, meaning that the legislature has specifically envisioned students being disciplined for such speech activity. This bolsters the concerns of speech advocates that this bill could be used to discipline counter-speakers.
Also of concern to civil liberties advocates is the wide latitude the bill gives to the Board of Governors in granting the Board power to “adopt additional policies and guidelines to further the purposes of the policies adopted pursuant to this Article,” and in creating a committee of the Board responsible for studying and reporting “barriers . . . to free expression.” Given the Board’s arguably poor track record with protecting the academic freedom and freedom of expression of more progressive-leaning individuals, it will be interesting to track how this bill will apply to speakers of various viewpoints.
It remains to be seen how campuses statewide will respond to the bill’s passing, but the continuation of the status quo for determinations of what constitutes a “public forum” may mean that the administration won’t have a steep hill to climb in terms of implementation.