Tennessee Enacts Nation’s ‘Most Comprehensive’ Campus Free Speech Law

Protesters rally at Teachers College at Columbia University October 10, 2007, in New York
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Tennessee became one of the first states on Tuesday to pass legislation designed to stem the assault on free speech at its public universities.

The eight page Campus Free Speech Protection Act was signed into law by Governor Bill Haslam after passing the Tennessee House of Representatives and Senate by votes of 85-7 and 30-0, respectively.

The law mandates that public colleges and universities in Tennessee adopt free speech policies consistent with the University of Chicago’s 2015 Stone Report. Chaired by Chicago Law Professor Geoffrey Stone, the report’s findings were adopted last year to great fanfare. Despite his emphasis on campus free speech, Professor Stone is hardly a right-wing ideologue. He clerked with archliberal Supreme Court Justice William Brennan, chaired the Board of the American Constitution Society, a leading lefty-leaning lawyers’ association, and served on the National Advisory Council of the American Civil Liberties Union.

The Tennessee law will expressly prohibit the use of so-called “free speech zones” to limit the areas of campus on which certain viewpoints can be heard. University administrators are prohibited from rescinding the invitations from students or faculty of speakers with whom they disagree or fear will cause disruption.

The law also demands campuses use the actual legal definition of student-on-student “harassment” handed down by the Supreme Court, behavior “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.”

According to a group instrumental in advocating free speech on campus, the Foundation for Individual Rights in Education (FIRE), far lower standards of “harassment” are routinely used by administrators to prohibit speech that “distresses” or causes “emotional discomfort” to some students.

Finally, the Campus Free Speech Protection Act will forbid viewpoint-based discrimination in the distribution of funds for student groups and prevent faculty from being punished for what they choose to say in the classroom unless it is “not reasonably germane to the subject matter of the class as broadly construed, and comprises a substantial portion of classroom instruction.”

The law comes at a time when the ability for differing viewpoints, especially those on the political right, to be heard on campuses has come under simultaneous attack from radical leftist groups and university administrations.

Conservative columnist Ann Coulter, for example, saw her invited speaking engagement at University of California Berkeley last month moved, curtailed, and finally canceled because of security concerns. The threat of leftist violence gave administrators the cover needed to add greater requirements on her event.

Those same threats were made good only two months earlier when Berkeley Police and University of California security stood down while violent “anti-fascist” rioters ran rampant, assaulting students, destroying property, and forcing the cancellation of a much heralded event by then-Breitbart News Tech Editor Milo Yiannopoulos.

On the other side of the country, the same tactics, with the tacit approval of campus leadership, led to the physical assault of a professor at a ruined speaking engagement by Harvard social scientist and American Enterprise Institute scholar Charles Murray at Middlebury College in Vermont.

Instead of taking a stand against this agitation and fighting for the diversity of viewpoints in their institutions, universities in recent years have imposed politically correct “speech codes” on students and faculty, restricted controversial speech to “free speech zones,” and actively torpedoed primarily right-leaning student groups and invited speakers.

The Tennessee law represents a growing movement by state legislatures to counter these trends in the public institutions over which they have authority. It represents perhaps the broadest combination so far passed into law of the different types of campus free speech protections being supported by advocates nationwide.

In the last two years, Virginia, Missouri, Arizona, Colorado, Utah, and Kentucky have all adopted some version of the Campus Free Expression Act advocated by FIRE, mostly with broad bipartisan support. This relatively narrow legislation bans “free speech zones” from public universities. Several other state governments, including Berkeley’s overseer California, are now considering similar legislation.

A broader piece of model legislation, promulgated by the free-market think tank the Goldwater Institute, incorporates the reasoning of the same University of Chicago Stone Report used in the Tennessee law passed Tuesday to demand a policy of commitment to viewpoint neutral free speech protection by university administrations. This model Campus Free Speech Ac would demand university administrators punish students who disrupt invited speakers and other students exercising their constitutional right to free speech. Most controversially, it would require university administrators to suspend for a year any student twice found to have done so.

Legislatures in North Carolina, Louisiana, California, Wisconsin, and Michigan are all considering versions of the Campus Free Speech Act. North Carolina’s bill has already passed that state’s House by a vote of 88-32.

The new Tennessee law incorporates elements of both pieces of model legislation, but takes its own approach, foregoing the mandatory punishments for student speech-infringes and including protections for faculty members who say things that may offend students.

In a post celebrating the passage of the bill, FIRE Executive Director Robert Shibley said:

[The Tennessee law] is the most comprehensive state legislation protecting free speech on college campuses that we’ve seen be passed anywhere in the country. It is gratifying to see the Tennessee legislature take decisive action to protect the expressive rights of students and faculty, especially in light of the number of restrictive speech codes across the country and the recent controversies over speech on campus.

FIRE Legislative and Policy Director Joe Cohn told Breitbart News that he was heartened by the bill’s passage and that he hoped it would inspire other state legislatures going forward.

The law will take full effect on January 1, 2018.


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