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Wisconsin’s ‘Campus Free Speech Act’ gets lots right, has room for improvement

By May 1, 2017

Last week, legislators in Wisconsin introduced the Campus Free Speech Act, a bill designed to ensure freedom of expression thrives at Wisconsin’s public colleges and universities. But the bill, patterned off of a model drafted by the Goldwater Institute, is not without controversy.  

There is a lot to like in the legislation. For example, the bill would prohibit public institutions from quarantining expressive activities, like protests and literature distribution, into misleadingly labeled “free speech” zones. Roughly one in 10 colleges and universities nationwide maintain these restrictive zones, and ending this practice statutorily would be a wonderful step in the right direction.

The legislation also addresses another common type of speech code frequently abused to stifle protected speech: the overbroad anti-harassment policy. By codifying the definition of peer-on-peer harassment set forth by the United States Supreme Court in Davis v. Monroe County Board of Education (1999), the bill provides essential instruction to institutions about how to protect students from discriminatory harassment without infringing on the First Amendment.  

While those aspects of the legislation deserve unreserved praise, there are some provisions that would benefit from revision. For example, the bill requires colleges adopt policies that:

[i]nclude a range of disciplinary sanctions for anyone under the jurisdiction of the institution who engages in violent, abusive, indecent, profane, boisterous, obscene, unreasonably loud, or other disorderly conduct that interferes with the free expression of others.

Most of what people would consider to be “indecent, profane, [or] boisterous…conduct” is actually just a form of speech or expression, and is therefore likely to be protected under the First Amendment. This provision, therefore, suggests that institutions may punish protected speech, and might even require them in some contexts to do so. FIRE has conveyed this concern to the bill’s primary author, and we are optimistic that this will be fixed as the bill progresses through the process. If it remains in the legislation further down the line, it would be reason for us to oppose the measure.

Another aspect of the bill garnering criticism is the section specifying that college policies “[r]equire suspension for a minimum of one semester or expulsion of any student who has twice been found responsible for interfering with the expressive rights of others.” FIRE feels strongly that there must be consequences for materially or substantially disrupting a speaking engagement, but we have requested two changes to this section.

First, the legislature should avoid statutorily defining the minimum sanction a student must receive for engaging in this behavior. As we told the bill’s sponsors and the Wisconsin State Journal, not all disruptions are equal in their severity, and sanctions should be proportional to the offense. For example, if 50 people block an entrance to a speech, preventing those who wish to attend from gaining entrance, that is certainly unprotected conduct that should be sanctioned. But it should not be treated the same as the conduct of an individual who assaults a speaker or event moderator, as happened recently at Middlebury College.

The other problem with the language in this section of the bill is that it does not require that the offending student cause a “substantial” or “material” disruption. It merely requires that they were “interfering with the expressive rights of others.” What constitutes interference here is too vague, and minor interference (such as garden-variety “booing”) is typically protected. FIRE is hopeful that this section will also be revised accordingly, and we are working with legislators in Wisconsin to do so.

The last provision of the bill receiving scrutiny is the section requiring institutions to adopt policies stating:

[t]hat each institution shall strive to remain neutral, as an institution, on the public policy controversies of the day, and may not take action, as an institution, on the public policy controversies of the day in such a way as to require students or faculty to publicly express a given view of social policy.

The first clause is aspirational and does not actually require institutions to remain neutral on any topic. 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.

While the language in the bill does not require institutional neutrality on such issues, we nevertheless have suggested to legislators that the aspirational clause be omitted so that institutions are simply required to adopt policies that state “[t]hat each institution shall not take action, as an institution, on the public policy controversies of the day in such a way as to require students or faculty to publicly express a given view of social policy.” That language 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.

FIRE is gratified to see the Wisconsin legislature take notice of issues regarding free speech on campus, and we’re hopeful that our recommendations will be adopted when the bill is taken up in committee. We are working with legislators to improve the bill and we look forward to giving the bill our full endorsement once these concerns are addressed.