"Campus free expression" bills may benefit protestors, but offer little new hope for college journalists

The North Carolina General Assembly passed the state’s Campus Free Speech Act Thursday, joining Tennessee, Colorado, Utah, and Virginia, which have each enacted similar statutes. 

All across the country, states are considering what are called “campus free expression” bills; Louisiana’s governor just vetoed his state’s version, but the veto may face a legislative override. But what, if anything, do these laws do to protect student media?

The answer, unfortunately, is probably not much. Most of the statutes are aimed at clarifying the right to distribute literature or hold demonstrations on the public portions of campuses, or to penalize students who disrupt politically controversial speakers. Little in these proposals seems likely to offer any heightened protection against censorship or retaliation for student journalists.

Most of the laws, both enacted and proposed, are at least loosely modeled after a bill proposed by the conservative Goldwater Institute. The model explicitly declares outdoor or public areas of state college campuses to be public forums. This means that the First Amendment is in full force in these areas of campuses in the same way that it would apply on an off-campus sidewalk or park. 

Many also direct colleges to commit to “strive to ensure the fullest degree of intellectual freedom and free expression,” and to dispose of policies not in line with such a commitment. That is a possible opening for student media to argue against campus policies that inadequately protect journalists — but the language lacks specificity. It’s not clear how a journalist would prove that a particular student media policy fails to “strive” to protect free expression. So until these laws are put to the test judicially, it would be unwise to assume that a state with a “campus free expression” law modeled on the Goldwater template gives journalists any enforceable right to publish without interference. That’s why the parallel legislative campaign to pass “New Voices” press-freedom statutes remains relevant. 

The bills have attracted opposition in some states — one critic called Wisconsin’s proposal a “campus gag rule” — because of concerns that students protesting divisive speakers may find themselves suspended or expelled for momentary acts of defiance, such as standing up and walking of a lecture. Still, the bills have been gaining traction in many states following headline-grabbing episodes at campuses including Vermont’s Middlebury College, where protests against author Charles Murray’s visit turned violent.

Here is a little more information about what these laws actually do:

Define Public Forums

The laws in Utah and Tennessee include a declaration that outdoor areas on campus are public forums. Eight bills currently under consideration, and Louisiana’s vetoed bill, include similar language declaring “outdoor areas,” “public areas” or “park areas, sidewalks, plazas, and similar spaces” to be public forums. Colorado’s statute sets aside outdoor areas and “nonacademic and publicly open portion[s] of a facility that the institution . . . has traditionally made available to students for expressive purposes” to be not fully public forums, but “student forums.”

Government agencies, including state colleges, may enforce only viewpoint-neutral time, place and manner restrictions on expression conducted in public forums. Thus, these provisions make great strides in preventing colleges from restricting student expression to specific “speech zones,” and they may provide some limited protections for student media’s news-gathering and distribution efforts. However, because these statutes do not contain similar provisions declaring student media to be student forums, and because they only apply to the specified areas of campus, they do not prevent student media from being subject to the censorship of student media that the Supreme Court legalized in Hazelwood School District v. Kuhlmeier.   

Nullify Speech-Restrictive Policies and Regulation

Many of these statutes and bills include provisions nullifying previously held college policies that restrict free speech. For example, Illinois’ legislation declares that prior policies “that restrict speech on campus” are “inconsistent with this policy on free expression” and must be removed or revised. The primary target of these provisions is “speech codes” that purport to penalize offensive or uncivil speech. These provisions might be the most promising aspect of these laws for student journalists, who can argue that university policies that restrict student media are inconsistent with promises of intellectual freedom found in these bills. For example, a college policy that requires non-student employees to pre-approve journalistic publications (“prior review”) before distribution could be challenged as a policy inconsistent with freedom of expression. 

Codify Tinker and Hazelwood for the College Context

Five pieces of legislation in four states, and Louisiana’s recently vetoed bill, include the “material and substantial disruption” test for regulating student speech that the Supreme Court coined in its landmark 1969 Tinker case in the K-12 context. It has not been clear whether the Tinker level of First Amendment protection was the applicable standard for colleges, as the Supreme Court has never squarely addressed that question. Tennessee’s law goes one step further by codifying Hazelwood, explicitly allowing “[c]ontent restrictions on speech that are reasonably related to a legitimate pedagogical purpose.” Tennessee is governed by the legal precedent of the federal Sixth Circuit, and Sixth Circuit precedent provides that student media publications are highly protected as designated public forums. So the most likely application of this provision is that classroom discussions or assignments will be subject to the Hazelwood level of near-total institutional control, while student media will retain their strong constitutional protection.

Protect Faculty

Tennessee’s statute goes beyond the protections of other state’s laws and bills to explicitly protect faculty members’ classroom speech. The statute provides that “no faculty will face adverse employment action for classroom speech, unless it is not reasonably germane to the subject matter of the class as broadly construed, and comprises a substantial portion of classroom instruction.” Faculty are also included along with students in most of the other clauses of the law. These protections in Tennessee’s law may offer faculty media advisers some protection against termination and other discipline in retaliation for content of student media (especially laboratory-produced student work). Notably, Tennessee is the only Campus Free Speech bill that provides specific faculty protections thus far.

Limit Interpretation to the First Amendment

The usefulness of Campus Free Speech legislation is severely limited by language that limits application only to that speech already protected by the First Amendment, found in three bills and three enacted statutes. For example, Colorado’s law includes the following language: “Nothing in this section shall be interpreted as presenting an institution of higher education from prohibiting, limiting, or restricting expression that is not protected under the First Amendment.” One could fairly read this provision to mean that unfavorable precedent — including the troubling Hazelwood case, which may or may not apply in the college setting — is still in full force in states with Campus Free Speech laws. Thus, while these statutes do a good job of setting aside outdoor areas as forums subject only to content-neutral restrictions, the longstanding issues with seeking First Amendment sanctuary for censored student journalists still may persist under these statutes.