Legislation that is close to becoming law in Florida would strongly undermine campus free speech and academic freedom by misguidedly allowing students to record classrooms.
The question of whether it is appropriate for students to have the right to record in the classroom is a thorny one, given the tension between the laudable goal of transparency and the need to avoid creating conditions that threaten academic freedom and chill speech. FIRE routinely grapples with this question, and we have found no obvious or simple answer as to how to strike the proper balance.
The current social climate, in which video or audio recordings of unpopular or controversial student or faculty expression (often taken out of context) are routinely used to “cancel” people of all political persuasions via social media mobbing, makes it more obvious than ever that getting the right answer to this question is of critical importance. Perhaps you have noticed any of the many, many, many examples across the country where students have tried to shame or sought discipline against their classmates or faculty for expressing protected, but controversial, views?
Accordingly, we urge the Florida legislature to refrain from imposing a statewide policy in this area, at least until it can truly engage all of the relevant stakeholders like faculty, campus administrators, students, and even journalists and civil libertarians whose interests may be implicated. Such a process would take time, and cannot be completed during the 2021 session, but doing so is necessary if the law is to avoid causing serious harm to classroom expression.
As it stands, the Florida House of Representatives has passed HB 233, while SB 264 is awaiting its final vote on the Senate floor. If enacted, these bills (which include some provisions FIRE supports, like strong due process protections) would amend Florida’s statute on campus free expression by adding the following:
Notwithstanding s. 934.03 and subject to the protections provided in the Family Educational Rights and 32 Privacy Act of 1974, 20 U.S.C. s. 1232g and ss. 1002.22 and 33 1002.225 [FERPA], a student may record video or audio of class lectures for their own personal educational use, in connection with a complaint to the public institution of higher education where the recording was made, or as evidence in, or in preparation for, a criminal or civil proceeding. A recorded lecture may not be published without the consent of the lecturer.
The bills continue to state that any person whose rights under the act were violated could bring a lawsuit:
[a]gainst a person who has published video or audio recorded in a classroom in violation of paragraph (3)(g) in a court of competent jurisdiction to obtain declaratory and injunctive relief and may be entitled to damages plus court costs and reasonable attorney fees, with the total recovery not to exceed $200,000.
Although there are obviously some legitimate uses of classroom recordings, the consequences of giving a statutory green light to recordings and litigation around their use is fraught with the potential to wreak havoc with classroom instruction, chilling faculty and student speech.
In a good faith, but inadequate attempt to protect against this problem, the bills would limit the authority to record in four ways. First, the bills require that recordings are only permitted to the extent they would be permissible under FERPA, the federal privacy law that prohibits the disclosure of students’ academic records. But FERPA provides little help here, since private recordings (as opposed to recordings by the institution) aren’t student educational records and are not, therefore, covered by FERPA. This caveat provides no discernable limitation on the use of these recordings.
The second limitation is that it authorizes students to record lectures for “their own personal educational use.” It’s easy to see how students might benefit in their studies from having lectures recorded for their personal use. But the mere existence of recordings in the classroom, given the “cancel culture” currently commonplace on college campuses, has tremendous potential to chill anyone who might dare to express a controversial idea in class. There is already ample evidence that students are self-censoring at alarming rates to avoid this dynamic. And how can you blame them, when the slightest transgression can be published for all posterity on the internet, affecting lives for years to come?
The third limitation on recordings in the classroom is that they are authorized “in connection with a complaint to the public institution of higher education where the recording was made, or as evidence in, or in preparation for, a criminal or civil proceeding.” Problematically, the bill does not define the scope of complaints to the institution that would qualify. It does not even require that the complaints be in good faith. This language invites the kind of “gotcha” politics at the heart of cancel culture. Will conservative students have to watch their words to avoid being reported to campus administrators? Will progressive faculty have to do the same to avoid being subject to complaints?
To be clear, recordings may be of help when part of good-faith whistleblowing, but the language in this bill doesn’t provide such a narrow exception, and it’s unclear that legislation is necessary to authorize recording in that context.
Finally, the bill prohibits the publication of classroom recordings without the consent of the recorded faculty member and creates a cause of action whereby anyone whose rights under the paragraph were violated by the publishing of an unauthorized classroom recording could sue the party that published the recording for up to $200,000. While this provision is seemingly included to soften the concern that recordings will be used to publicly shame faculty or fellow students, this provision is also insufficient.
First, it does nothing to protect a faculty member from recordings being used as the basis for politically motivated complaints filed at the institution seeking their termination, since this likely would not count as publication. Moreover, the cause of action set forth in the bill is against the person who published the recording — not necessarily the person who created the recording. This is a serious problem because the First Amendment protects journalists’ right to publish leaked information on matters of public concern, even when the information was unlawfully intercepted, provided the journalist did not violate the law to obtain the information.
Even aside from that constitutional problem, it seems unwise to create a system where faculty members’ legal remedy is to sue their own students.
The legislation has some additional provisions worth discussing. Another problem with the bill is that it includes overly broad language stating that “[a] Florida College System institution or a state university may not shield students, faculty, or staff from expressive activities.” The term “shield” in the bill means to “limit students’, faculty members’, or staff members’ access to, or observation of, ideas and opinions they may find uncomfortable, unwelcome, disagreeable, or offensive.” The aim of this provision is to promote free speech on campus. The problem is that it makes no exception allowing faculty to maintain order in the classroom or decide the scope of classroom discussions.
On the positive side, it would add “faculty research, lectures, writings, and commentary, whether published or unpublished” to the list of protected expressions. It would also direct the State Board of Education and Board of Governors to require each public Florida college and university to conduct an annual assessment related to intellectual freedom and viewpoint diversity. We wrote about that aspect of the bill here.
FIRE appreciates the bills’ sponsors’ good-faith intention to promote free expression. But although it may be possible to craft legislation that strikes the right balance between transparency and academic freedom, the language pending in Florida doesn’t cut it. Getting that balance right is absolutely crucial to the health of higher education in the state. The Florida legislature should avoid rushing to enact the provision on classroom recording and the cause of action to enforce that provision. Instead, lawmakers should engage in robust discussions with stakeholders to explore the possibility of creating a policy that addresses these tensions more precisely.