Campus free speech bills advance

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 unfriendly toward unpopular opinions.

Indiana Gov. Eric Holcomb, a Republican, signed HB 1190 on March 15, codifying First Amendment free speech protections that currently rely on a combination of Supreme Court rulings. The new law bars state universities from limiting expressive activities in outdoor areas of campuses, banning so-called “free speech zones.” It also prevents schools from discriminating against recognized student groups for their religious, political, or ideological nature and limiting their access to things like student activity funds, meeting facilities, or campus communications. The legislation is one of several state-level measures that aim to protect campus free speech involving controversial topics.

Indiana’s new law limits attempts by students, faculty, or administration officials to block, shout down, or otherwise muzzle campus speakers. It does not explicitly address whether university administrators can disinvite controversial speakers. But it gives students or student organizations a right to sue to enforce their rights under the law, with damages of up to $50,000.

“We’ve seen universities attempt to craft policies just based on the First Amendment, which is very broad, and those policies have oftentimes veered away … from some of the case law,” said Republican Rep. Chris Jeter, one of the backers of the bill, according to Chalkbeat. “[Universities] want to propagate rules that are fair, lawful, and viewpoint-neutral for all students.”

In 2018, Indiana’s 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.”

Indiana is the latest of 23 states to enact legislation to promote free speech on college campuses, according to a report by the Foundation for Individual Rights in Education (FIRE). But Joe Cohn, FIRE’s legislative and policy director, noted state laws vary widely. Some protect a wide range of expressive activity: A 2019 Alabama law, for example, goes beyond the Indiana bill to bar schools from rescinding invitations to speakers invited by students or faculty. It also requires schools to adopt policies consistent with the University of Chicago’s 2014 statement on free speech, calling for adherence to free inquiry. The “Chicago Statement” cautions that “concerns about civility and mutual respect can never be used as a justification for closing off discussion of ideas, however offensive or disagreeable those ideas may be to some members of our community.”

Cohn said 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, and comprises a substantial portion of classroom instruction.”

Other laws are more modest, said Cohn. A 2017 Utah law, for example, deals only with so-called “free-speech zones” and leaves unaddressed other areas such as nondiscrimination in student organization funding and benefits.

Two campus free speech bills are also currently pending in Congress, the Campus Free Speech Restoration Act and its Senate companion bill, S.B. 3026. Both remain in committee.

But Cohn said better laws and access to the courts alone will not sufficiently protect campus free speech. “Changing culture is a trickier and slower process that only occurs through engagement and dialogue,” he said. “Criticism is an important part of engagement, but so is listening … so that you’re responding to the positions that people hold [and] the assumptions that they hold in a way that encourages ongoing dialogue.”

University administrators also need to set an example, he said. A FIRE survey found a correlation between university administrators’ support for free speech and favorable student attitudes toward free speech.