Protecting free speech on campus

NICK EICHER, HOST: Up next: free speech on campus.

Indiana college students and student organizations have a new tool to protect free speech. Proponents say a new state law will guard against a campus culture increasingly hostile toward unpopular opinions.

Republican Gov. Eric Holcomb recently signed a bill into law codifying First Amendment free speech protections that currently rely on a combination of Supreme Court rulings.

Joining us now to talk about the law and its broader impact is WORLD’s Steve West. He’s an attorney and former federal prosecutor who now writes about religious liberty for WORLD.

MYRNA BROWN, HOST: Good morning to you, Steve!

STEVE WEST, GUEST: Good morning, Myrna.

BROWN: Well, Steve, this law does several things, including banning so-called “free speech zones.” What does that mean?

WEST: Many universities and colleges in recent years have relegated free expression to postage-stamp size outdoor areas of campus. And these can be very out of the way places where the majority of students may not even encounter them. Often they also require students or student organizations wanting to set up a table and hand out materials, protest, or speak with people about a hot issue to obtain a permit in advance of their activity. Under court rulings, the schools certainly have a right to put in place reasonable time, manner, and place restrictions, but they have gone much further here, perhaps as a way of silencing controversial groups. So what this law does is declare all outside areas of the campus which are generally open to students also open to expressive activity, putting the burden on the school to demonstrate it has a reason for not allowing activity at a particular time or place or manner.

BROWN: Okay. As I understand it, it also aims to prevent discrimination against student groups with particular religious or political ideologies … or the muzzling of campus speakers. Can you talk a bit more about that?

WEST: In recent years, universities have also attempted to de-recognize student groups who they accuse of violating anti-discrimination policies. By de-recognize, I mean that groups lose access to use of mandatory student activity fees which the groups can use to pay an honorarium to a speaker or certain other things. They also lose access to meeting facilities and campus means of communication. Some universities have insisted, for example, that not only membership in campus groups but the leadership of student groups should be open to all students, and yet they have not uniformly enforced these rules. So what the new law does is say you cannot deny benefits to a student group because of its religious, political, or ideological views–or even because of a controversial speaker it may invite–and allows groups to define who is eligible for leadership positions.

BROWN: Looks good on paper. How will these provisions be enforced? Does the new law have any teeth in it?

WEST: Thankfully, it does. Under this law, students or student organizations have a right to sue the university should it violate the law. They can get court orders directing university officials to comply with the law and even receive, where appropriate, damages of up to $50,000.

BROWN: Steve, what was the impetus for this bill? Why did some lawmakers and the governor deem this necessary?

WEST: Trouble at home speaks loudest. In 2018, Ball State University reached a settlement over free speech issues with the school’s Students for Life chapter in which it agreed to pay more than $12,000 in attorneys’ fees and damages and to revise its student activity fund allocation guidelines. The campus group had sued after the school denied a request for $300 of student activity fees to cover the costs for materials to assist pregnant and parenting students. Revised guidelines now clarify that “funding will not be denied because the recipient of the funds advocates a particular opinion.” And no doubt legislators were also aware of other universities that have faced lawsuits over these issues–lawsuits they tend to lose.

BROWN: Now, Indiana is not the only state to enact such a law, correct?

WEST: No, about half the states have laws dealing with campus free speech issues. Most take aim at free speech zones, but some no further–including a few that go beyond Indiana’s law. Tennessee’s Campus Free Speech Protection Act is probably the most comprehensive. The 2017 law also protects faculty speech in the classroom unless it is “not reasonably germane to the subject matter of the class as broadly construed...” But, you know, laws and court rulings can’t completely remedy concerns over free speech. Changing the culture to one where we are quick to listen and slow to speak is a heart issue, and for that we need help.

BROWN: Steve West writes about religious liberties for WORLD Digital. You can read his work at WNG.org. You can also subscribe to his free weekly newsletter on First Amendment issues, called Liberties. Steve, always good to have you on. Thank you!

WEST: Always a pleasure to be with you, Myrna.

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