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Second Wisconsin bill addressing free speech presents significant First Amendment problems

By May 5, 2017

On Monday, I wrote about the Wisconsin Campus Free Speech Act, a bill sponsored by Rep. Jesse Kremer, which aims to promote free speech on public colleges and universities throughout the Badger State. Now a second bill on the topic has been introduced by Wisconsin State Sen. Leah Vukmir. However well-intentioned, it presently contains several provisions that are unconstitutional.

Vukmir’s bill appears intended to address the disturbing trends of institutions rescinding invitations to controversial speakers scheduled to appear on their campuses and substantial disruptions to those events, some of which have turned violent.

FIRE agrees that it is problematic when institutions yield to public pressure and cancel controversial speeches or when they fail to protect speakers from those that would exercise a heckler’s veto over what others may hear. But we have serious concerns about the way the initial draft of the Vukmir bill addresses this issue.

First, in very broad terms, the bill states that “No person may threaten an invited speaker or threaten to organize protests or riots or to incite violence with the purpose to dissuade or intimidate an invited speaker from attending a campus event.” [Emphases added.]

Just as the First Amendment protects the rights of any speaker — no matter how controversial their ideas may be — to speak on a public campus where they have been invited, it also protects the rights of others to peacefully protest that speaker. Nonviolent protest that does not materially interfere with the rights of others is one of the quintessential forms of protected speech, so certainly organizing lawful protests is also protected. The right to protest would be meaningless if it were not.

The bill’s use of the word “threat” in this context does not change the analysis. While a true threat of imminent violence is not protected speech, threatening to engage in protected activity is really no “threat” at all. It’s protected speech, well beyond the authority of any state legislature to inhibit.

Similarly, protests designed to “dissuade . . . invited speakers from attending a campus event” are protected speech. Encouraging institutions, organizations, or persons to reconsider invitations to a speaker, or encouraging a speaker to avoid speaking or to change their views, are examples of protected speech. FIRE agrees that calls for disinviting speakers are at odds with the purpose of higher education and criticizes those demands accordingly, but those campaigns, so long as they are not accompanied by true threats or violence, are protected under the First Amendment.  

Another likely unconstitutional provision in the bill states:

Any protest or demonstration that infringes on the rights of others to engage in or listen to expressive activity is prohibited and university and college campus administrators shall sanction individuals who violate that prohibition.

The constitutional problem with this language is that it is unclear what would constitute a sufficient infringement on the rights of others. Would a fleeting “boo” be sufficient? What about a person who is loudly and involuntarily coughing during someone’s speech? What about laughing at a statement the listener finds preposterous? By requiring that “any” conduct which “infringes” on the rights of others to engage in or listen to expressive activities be sanctioned, regardless of intent or the severity of the infringement, the language is likely both overbroad and vague.

Kremer has thankfully committed to amending his bill when it gets a committee hearing. Vukmir should make this same commitment.

A third provision FIRE finds troubling from a public safety perspective reads:

University and college campus administrators shall notify an individual invited to speak on campus if the administrators determine that they cannot ensure the individual’s safety and shall allow the individual to speak on campus in spite of that determination.

Federal courts have addressed the duty of law enforcement and other government officials to respond to any breaches of the peace caused by violent reactions to protected speech that has stirred people to anger. For example, in Bible Believers v. Wayne County (2015), the U.S. Court of Appeals for the Sixth Circuit held that by cutting off the protected speech of the Bible Believers in response to a hostile crowd’s reactions, the government had “effectuated a heckler’s veto” in violation of the First Amendment. In Bible Believers, the police refused to protect a group of evangelical Christians who were espousing views critical of Islam at the Arab International Festival in Dearborn, Michigan. Instead of protecting them from a hostile crowd, the police removed the Bible Believers from the festival, curtailing their right to express an unpopular viewpoint.

The Sixth Circuit explained:

The rule to be followed is that when the police seek to enforce law and order, they must do so in a way that does not unnecessarily infringe upon the constitutional rights of law-abiding citizens. The police may go against the hecklers, cordon off the speakers, or attempt to disperse the entire crowd if that becomes necessary. Moreover, they may take any appropriate action to maintain law and order that does not destroy the right to free speech by indefinitely silencing the speaker. Fundamentally, no police action that hinders the speaker’s freedom of speech should be deemed legitimate in the eyes of the Constitution unless it satisfies strict scrutiny, which requires the police to achieve their ends by using only those means that are the least restrictive with respect to the speaker’s First Amendment rights. [Emphasis added; internal citation omitted.]

In holding that the government must protect the rights of speakers to express unpopular points of view even in the face of threats of violence from a hostile crowd, the Sixth Circuit also recognized that maintaining the peace will not always be possible. Analyzing the government’s responsibility in this context, the court wrote:

We do not presume to dictate to law enforcement precisely how it should maintain the public order. But in this case, there were a number of easily identifiable measures that could have been taken short of removing the speaker: e.g., increasing police presence in the immediate vicinity, as was requested; erecting a barricade for free speech, as was requested; arresting or threatening to arrest more of the law breakers, as was also requested; or allowing the Bible Believers to speak from the already constructed barricade to which they were eventually secluded prior to being ejected from the Festival. If none of these measures were feasible or had been deemed unlikely to prevail, the [Wayne County Sheriff’s Office] officers could have called for backup—as they appear to have done when they decided to eject the Bible Believers from the Festival—prior to finding that it was necessary to infringe on the group’s First Amendment rights. We simply cannot accept Defendants’ position that they were compelled to abridge constitutional rights for the sake of public safety, when at the same time the lawless adolescents who caused the risk with their assaultive behavior were left unmolested. [Footnote omitted.]

In other words, the government can infringe on a speaker’s First Amendment rights only as a last resort. The government must exhaust reasonable alternatives before it gives in to the heckler’s veto. The Vukmir bill does not even allow the government to yield after it has exhausted those possibilities, thus second-guessing law enforcement’s decision-making and possibly endangering participants. It must be modified to strike the right balance.  

FIRE has additional concerns with the bill, including the provision that requires institutions to “remain neutral on public policy controversies.” As I wrote earlier this week with respect to the Campus Free Speech Act:

FIRE believes that for academic freedom to thrive, institutions should avoid taking official institutional positions on controversial issues unrelated to the functioning of the institution, but we also recognize that there are many controversial issues that do directly impact the functioning of institutions, such as levels of funding, affirmative action policies, and, of course, concerns about free speech.

The key difference between the “neutrality” provision in the Campus Free Speech Act and the equivalent provision in the Vukmir bill is that the former urged institutions to strive for neutrality, while the latter requires it. The breadth and mandatory nature of the Vukmir provision literally prevents institutions from taking positions on controversial matters directly affecting them, like budget disputes in the legislature. The sponsors of both bills would be wise to amend their provisions to merely prevent institutions from taking action, as an institution, on controversial issues in a manner that requires students or faculty to publicly express a given view of social policy. As I explained with respect to the Campus Free Speech Act, that approach

would ensure that institutions may take positions, so long as they are not compelling others to agree. For example, under our proposed revision, an institution could take a position on marijuana legalization and could maintain a policy prohibiting its use on campus, but it could not prohibit students from publicly expressing their opinions that marijuana use should be legal. This would strike the appropriate balance that would help free speech flourish on Wisconsin’s campuses.

As always, FIRE is glad legislators are thinking about how they can help defend free speech on campus. The need for campus free speech legislation in Wisconsin is demonstrated by the fact that, of the seven public institutions rated by FIRE in our Spotlight database, all of them maintain at least one written policy that restricts protected speech. But as these two bills demonstrate, it is critically important that before any legislation on this issue reaches final form, it is carefully reviewed to ensure that it protects — rather than restricts — free speech for all. FIRE is ready to work with any legislators in Wisconsin to revise their bills to ensure that before the final vote, the legislation meets that critically important standard.