American Civil Liberties Union lawyers are worried a “campus free speech” bill making its way through the N.C. General Assembly could actually wind up stifling some types of protest the First Amendment would otherwise allow.
The worry focuses on a provision in the bill that require the UNC system and its campuses to provide “disciplinary sanctions” to students, faculty or staff who do something that “substantially interferes with the protected free expression rights of others.”
Supporters of the bill, most particularly the nation group that’s behind it, have indicated they want to stop people from “shouting down” or blocking speakers who’ve been invited to appear on campus, as has happened a couple times of late in California.
But as it passed the N.C. House, the discipline provision included “somewhat overly broad language” that “risks chilling a range of First Amendment-protected activity,” said Susanna Birdsong, policy counsel for the ACLU’s North Carolina chapter.
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The problem is that the provision leaves a lot to the imagination when it targets acts that “infringe upon the rights of others” to speak and listen, she said, invoking part of its wording.
“Does ‘interference’ mean any kind of counterspeech or counterprotest, speech that is itself protected by the First Amendment?” Birdsong said.
The dilemma could play out if, for example, a controversial speaker gives a talk inside a university auditorium while protestors gather outside in a public square, she said.
“If they’re not protesting in the auditorium or blocking across to the doorway, [protesters] should be able to stand outside,” Birdsong said. “Their chants or protest being heard inside the space is still allowable under the First Amendment.”
Does ‘interference’ mean any kind of counterspeech or counterprotest, speech that is itself protected by the First Amendment?
Susanna Birdsong, policy counsel for the American Civil Liberties Union of North Carolina
But authorities on the spot may decide differently, which is why “having this shall-be-disciplined language in the bill continues to be problematic,” she said.
The bill cleared the House on April 26 by a vote of 88-32, with the chamber’s Republicans unanimously in favor and its Democrats split. Now in the state Senate, it’s assigned for the moment to that chamber’s rules committee. Its placement there gives Senate leaders a chance to decide how they want to handle the measure, or whether they want it to continue through the legislative process at all.
The push for the bill is coming from a national group, the Goldwater Institute, that drafted model legislation and convinced legislators in six states to introduce it. One of the states, Colorado, has enacted it and it’s still on the table in the other five, including North Carolina.
In the N.C. House, the initial filing closely followed the Goldwater Institute model, but several key provisions changed as the measure made its way through two committees. Sponsors acknowledged they were making changes to accommodate the UNC system.
The highest-profile of those including dropping language that required system institutions to “remain neutral” on “the public-policy controversies of the day.” N.C. General Assembly staffers agreed the original wording would have barred campuses from taking positions on matters affecting their institutional interests, like legislation or bond issues.
But it retains additional neutrality wording that bars campuses from requiring students, faculty or staff “to publicly express a given view of social policy,” a clause that calls into question whether a university could insist that faculty, coaches and other employees back institutional stances on such things as civil rights or the proper way to handle sexual-misconduct cases.
Another change, however, deleted Goldwater Institute-proposed language that would’ve narrowed the ability of the state’s public universities to deal with what the bill now terms “unlawful harassment.”
Yet a third committee change specified that while many outdoor spaces on campus — “park areas, sidewalks, plazas and similar spaces” — are “public forums” where anyone can speak or protest with few limits, the rest of the campus including its indoor spaces are “nonpublic forums” where the administration can exert more control.
In First Amendment law, the phrase “nonpublic forum” is a term of art the U.S. Supreme Court has said covers places where the government — in this instance, university administrators — can control access “based on subject matter and speaker identity” so long as it acts reasonably and is “viewpoint neutral.”
The bill’s original wording would’ve said that “the public areas” of a campus are public forums “open on the same terms to any speaker,” without defining what’s a public area and what isn’t.
The distinction can matter in court cases, for instance one last year that saw a federal judge bar N.C. State University from requiring student groups to obtain a solicitation permit from the administration before handing out literature or proselytizing on campus.
That lawsuit concerned access to State’s Talley Student Union. As the case unfolded, N.C. State’s lawyers, the Christian group that sued the university and the judge all worked on the assumption the building was a public forum, at least for students.