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February 21 2018

Orrin Hatch's campus free speech bill is sorely needed

via Washington Examiner
by Nicole Kurokawa Neily

Two weeks ago, Sen. Orrin Hatch, R-Utah, introduced a bill in the U.S. Senate to protect free speech on campus: the Free Right to Expression in Education Act. To Washingtonians, it seemed to be yet another symbolic bill that staked out a position on an issue important to constituents yet unlikely to pass. One warning sign was the bill’s clever acronym: FREE. Legislative puns are a favorite tactic for buzzy-yet-impotent bills like Democratic New Jersey Sen. Bob Menendez’s CECIL Act (introduced in the wake of the Cecil the lion scandal,) and Texas Republican Rep. Blake Farenthold’s JAWS Act (the Justice Attributed to Wounded Sharks Act, in case you were wondering).

However, the bigger flag to most cynical Washingtonians was the fact that the topic itself seemed irrelevant. Obviously, public universities protect expressive activities in outdoor areas on campus — it’s college, after all, the place where students go to expand their minds and develop into adults!

Yet, therein lies the rub.

Unfortunately, many universities don't protect such a fundamental right for students — despite the fact that public universities, being taxpayer-funded, are actually required to uphold the First Amendment. And that includes the freedom of speech.

Schools trample students’ rights both directly and indirectly. Speech codes, which typically use civility requirements to create “safe spaces,” are one tool that universities use to restrict speech, while free speech zones restrict the places on campus where students may speak freely. In addition, the way in which colleges regulate outside speakers can also be problematic, giving opponents of the speech a “heckler’s veto” and imposing burdensome security and financial requirements — especially when disproportionately imposed on outside speakers from one side of the ideological spectrum.

Indirectly, “bias reporting” protocols encourage students who overhear “offensive” or “biased” speech to report it anonymously to the university. University officials then may investigate the incident and meet with the student in question. These investigations by university officials create a chilling effect on students’ willingness to exercise their right to free speech and curtail the free exchange of ideas that is supposed to be a hallmark of the academic setting.

Over the past several years, a number of colleges with flagrantly unconstitutional speech policies have been challenged by groups, like the Foundation for Individual Rights in Education and the Alliance Defending Freedom, who have sued schools on behalf of students whose rights have been violated — and they’ve won.

You’d think the victories that FIRE and ADF have stacked up would send a clear signal to college administrators that it’s time to roll back their well-intentioned, but wrong, policies — sadly, not nearly enough appear to have received the message.

Thanks to efforts by the Goldwater Institute and the American Legislative Exchange Council, several state legislatures across the country have stepped in to remind universities what their obligations are under the law. As FIRE notes, “Colorado, Virginia, Missouri, Arizona, and Utah have already passed legislation banning public colleges and universities from relegating student expression to free speech zones, with North Carolina and Tennessee prohibiting their use in more comprehensive legislation protecting student expression.” It's unfortunate that such a restatement of basic principles needs to take place at all. For decades, colleges have been places of inquiry and debate where conventional wisdom was challenged and new ideas were tested. If that era ends, then the country’s minds will be poorer for it.

As Hatch noted in a recent National Review article, “Students’ speech ... should not be dependent on the state in which they reside.” The fact that 43 states and the District of Columbia haven’t yet reaffirmed the importance of the First Amendment on campus means that there is now an opportunity for Congress to do so in what should be a non-controversial bipartisan effort.

Members of Congress swear an oath of office to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” At a time when the country is wracked with division, now is the time for both parties to come together in order to send a clear message to America’s students that their rights matter and that the world’s greatest deliberative body stands with them in solidarity.

Nicole Neily is a senior fellow at the Independent Women's Forum. Most recently, she was the president of the Franklin Center for Government and Public Integrity, an investigative journalism nonprofit focused on highlighting abuses of power, cronyism, and government overreach in the state.

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Independent Women’s Forum’s mission is to improve the lives of Americans by increasing the number of women who value free markets and personal liberty. Sister organization of Independent Women’s Voice.
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