FIRE Testifies in Support of Free Expression Bill at New Hampshire State Legislature

On Tuesday, January 26, I had the privilege of testifying before the New Hampshire House Education Committee on HB 1561, a bill to protect freedom of expression at New Hampshire’s public colleges and universities by prohibiting the use of unconstitutional “free speech zones.” This bill is important for New Hampshire because at least two of its public institutions, Keene State College (KSC) and the University of New Hampshire (UNH), have policies that demonstrate a lack of commitment to students’ expressive rights on campus.

For example, at KSC, students are permitted to engage in free speech activities only on the Student Center Lawn and inside the Young Student Center Atrium—and only when scheduled in advance.   

And at UNH, students are able to express themselves in the public areas of campus—but again, only after they apply for and get permission from the UNH Police Department. UNH’s policy states:

Individual students and non-students who wish to solicit for contributions, distribute literature (including requesting a small fee or voluntary contribution for the literature to defray expenses); and engage in sequential, incidental, brief and transitory verbal interactions with passersby on the sidewalks and in the parking lots on campus must first obtain a permit from the University of New Hampshire Police Department.

Prior restraint on student expression is wrong and presumptively unconstitutional at public institutions like UNH and KSC. Worse, these policies limit students’ ability to quickly respond to recent events or to speech with which they disagree.

The latter issue came up at last month’s hearing when one of the committee members asked if the bill would allow Ku Klux Klan members to exercise free speech rights on campus. HB 1561 is important because, to extend the committee member’s hypothetical, the policies at both KSC and UNH would prohibit students from spontaneously assembling in order to counter the message of the Klan. They’d have to request an administrator’s permission, or permission from a police department, before they could respond publicly to speech they don’t like.

As expected, pushback against HB 1561 did not come from students or residents of New Hampshire but from college administrators. FIRE has plenty of experience with colleges and universities pushing back against bills like HB 1561, and the arguments presented by a UNH lawyer were misguided, to say the least.

For instance, the UNH official argued three points: that HB 1561 is unnecessary, that it would undermine the university, and that it would cost the university too much money. First, as Torch readers are aware, there are numerous examples of restrictive free speech zones on college campuses across the country that demonstrate why HB 1561 is necessary. The National Coalition Against Censorship has said that free speech zones are one of the “greatest threats to free speech.”

Second, I reiterated in my testimony that HB 1561 would not “undermine” universities because it still allows institutions to maintain reasonable time, place, and manner restrictions so long as those restrictions are content- and viewpoint-neutral, further the school’s significant interests, and allow for ample alternative channels of expression, including spontaneous and contemporaneous assembly. This is already the legal standard courts have continually upheld.

Lastly, FIRE detailed the true financial costs that universities face when they violate students’ free expression rights, which include negative press, loss of donations from supporters and alumni, and of course, lawsuits that force schools to pay thousands in damages and attorney’s fees for violating the First Amendment rights of their students.

Overall, the hearing was very productive. One bonus was testimony from the Community College System of New Hampshire. While its representatives were not in support of the legislation, they did acknowledge that the mere fact the bill was introduced forced them to review their speech policies. They even stated that they looked to FIRE for guidance while evaluating them.

On Thursday, January 28, HB 1561 was placed on interim study. This means the Committee will spend more time debating the bill before voting on whether or not it will move forward. As HB 1561 makes its way through the New Hampshire legislature, FIRE will keep you updated on its progress. In the meantime, we will make sure the students in New Hampshire—especially at UNH—understand they don’t need to ask the Chief of Police for permission to express themselves on campus.