The Ohio has recently passed Senate Bill 40 , aka “Forming Open and Robust University Minds Act”. It will most likely be signed by the governor, thus creating a State Law to protect the free speech clause of the First Amendment to the US Constitution at Ohio public universities. The bill would bring an end to the prohibition of members of the Communist Party speaking on campus, prohibit Universities from banning speakers on campuses in general, protect speakers and others from interference with their right to speak, prohibit “free speech zones”, prohibit campuses from enforcing speech codes and require colleges to enforce Title IX and related regulations in accordance with the relevant provisions of the Ohio Revised Code. The question is, is this bill necessary and will it achieve its goals? Though I agree in principle with this bill, I remain agnostic about the ability of any state legislature to fix the problem.
This bill is part of a national trend that has emerged in response to the perception that the nation’s public colleges and universities are facing a free speech crisis. Though the existence of this crisis is disputed (see for example here and here ), an overview of the multiple cases of potential violations of First Amendment and Academic Freedom rights demonstrates cause for concern. Conservatives have complained that conservative views are routinely suppressed and place the blame the rise of left wing intolerance. But liberals and leftists have also been the target of right wing intolerance. Several decades ago, the late and great champion of the First Amendment and Civil Liberties Nat Hentoff wrote about the tendency of right and left to attempt to continuously censor each other and his work is still relevant. With the increasing corporatization of higher ed the problem is likely to get worse, not better.
This background provides some context for Ohio’s “Forming Open and Robust University Minds Act”. Given the composition of the Ohio legislature, it’s probably safe to presume that the conservative state legislature is first and foremost interested in protecting conservative viewpoints on college campuses. But whatever one suspects regarding the motives of the Ohio legislature the measure deserves to be evaluated on its own merits. In effect, the bill attempts to define by statute, what is for all intents and purposes, currently defined through case law.
At least with respect to speech by students and outside speakers, though not necessarily staff and professors when speaking in their capacity as employees, the First Amendment already applies to college campuses. Students at public Universities, as a matter of Constitutional principle, already enjoy the same level of First Amendment protection on campus and off campus as they do as members of the general public. But this has not stopped Universities nationwide from engaging in restrictions on speech, while simultaneously claiming to protect free expression. The situation for faculty is somewhat more precarious. Though nearly every public and even most private Universities pledge to protect academic freedom, multiple Federal Court rulings, citing Garcetti have effectively removed Constitutional protection for faculty in the performance of their official duties.
Sadly, some who should know better have advanced bogus arguments against the bill. A spokesperson for the Ohio Chapter of the AAUP, in testimony opposing provides one such example. The spokesperson argues that outside speakers who draw opposition do not necessarily deserve First Amendment protection on college campuses, due in part to the monetary costs of such speakers. Reasonable people can differ over whether or not the First Amendment should protect the right of speakers such as Richard Spencer or Milo Yionnapoulos who explicitly promote hate and contribute nothing to meaningful public discourse and require large expenditures by Universities for security. While I respect and understand the argument of those who say it should not, I respectfully disagree. Such restrictions are never applied narrowly but instead have a way of expanding in scope. Similarly, it is unrealistic to believe that such bans will not be turned against other controversial speakers, such as Angela Davis or Ward Churchill (for the record, I am not equating Angela Davis and War Churchill with Richard Spencer and Milo Yiannopoulos), or, as has been the case for several decades in Ohio, members of the Communist Party.
But reasonable people should not disagree over what the law is at present. The current standard, as articulated in Brandenburg is “immanent incitement to unlawful activity”. Raising the specter of costs is incorrect as a matter of settled First Amendment Law and subjects potential speakers to the “heckler’s veto” which the AAUP has traditionally opposed. I can only express disappointment in the Ohio AAUP for advancing this argument. That noted, providing extra state funding to cover expenses associated with potentially controversial speakers would be a good idea. The Ohio AAUP also raises the specter of a campus office, replete with staff, dedicated to enforcing the First Amendment. I do not think that is what will happen, and though I am less than enamored of the prospect of creating more administrative positions, the prospect does not quite fill me with dread. The more likely outcomes is that existing bureaucracies will be charged with taking full account of First Amendment issues in the same fashion as they apply other relevant statutes. That would be a good thing.
The current version is also a substantive improvement on earlier versions. Earlier versions of the bill could have been interpreted to sanction counter demonstrators. But the current language is mostly clear. Only material and substantial disruption of speakers, or blocking of entrances will be considered an offense. This latter point can use more clarity. This does raise the possibility that counter demonstrators could be charged with violation of others’ First Amendment rights. How this will be enforced is not clear. There is a danger here that in the name of protecting First Amendment rights, we could actually violate First Amendment rights. Any such charges need to be proved in accordance with relevant standards of due process to insure against frivolous charges being brought as a means of intimidating counter demonstrators.
The real problems with this bill in my view lie elsewhere. It attempts to define and enforce through legislation a complex and changing area of law that is defined by evolving precedent. The bill does not address whether or not the Ohio State legislature intends to extend First Amendment protection to the concept of academic freedom for faculty in the performance of their duties. As a practical matter, is it is unlikely that the Ohio State Legislature can bind Federal Courts, but such a measure could be upheld in State Court. Similarly, standards for proving verbal based hostile environment discrimination also depend on precedents and on the interpretation and application of those precedents. Potentially, this could pit State Law about a Federal Constitutional issue against Federal Court decisions on Civil Rights statutes. A third problem is that in essence, the state legislature is writing campus policy.
The ultimate impact of this bill may be that it creates confusion, rather than clarity. A better approach would be for Universities to take First Amendment concerns more seriously on their own. Regardless, since the bill appears slated to become State Law, Universities will now have no choice but to do so. I hope the right balance can be maintained, but I’m not optimistic.