February 12, 2018

Congressional Effort to End Unconstitutional Campus “Free Speech Zones”

By Timothy R. Snowball Attorney

As an alumnus of the University of California, Berkeley, the struggle of activist leader Mario Savio and other student leaders who championed the Berkeley-born “Free Speech Movement” are well known to me. Motivated in part by resistance to the then raging Vietnam War, and bolstered by the support of thousands of students, the Free Speech Movement was the first mass civil disobedience in college campus of the United States during 1960s. At its height, students across the country demanded that university administrations lift bans on campus political activities and acknowledge the students’ right to free speech and academic freedom. In the end, the students and other protestors were successful.

So how has the legacy of Savio and other advocates for freedom of speech on college campuses fared?

Poorly.

What began as push for “political correctness” in the 1990s has mutated in a purported “movement” that favors mandatory campus speech codes, safe spaces, free speech zones, and the disinvitation or outright rejection of speakers in favor of preventing students who may be overly offended or distressed by certain views, topics, or speech. 31% of college students think that “hate speech” (which does not actually exist as a legally recognized category, and for good reason), should not be legally protected. 69% support disinvitations for campus speakers who have made “hateful” comments. 54% have self-censored themselves from sharing an opinion or idea in class, while 30% did not express themselves specifically to avoid offending their peers. Thus far, the debate over these distressing developments has been confined to academics and the media. Until now.

Last Wednesday, Senator Orrin Hatch announced the introduction of legislation to specifically prohibit public colleges and universities from restricting students’ speech activities to restrictive free speech zones. The bill, called the “Free Right to Expression in Education Act,” states, in part, “Each public institution of higher education…may not prohibit…a person from freely engaging in noncommercial expressive activity in an outdoor area on the institution’s campus if the person’s conduct is lawful.” This Act is complimented by a similar effort in the U.S. House of Representatives which expresses “the sense of the House of Representatives” that “free speech zones and restrictive speech codes are inherently at odds with the freedom of speech guaranteed by the First Amendment of the Constitution.”

Justice Brandeis once wrote that “[The Founders] believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.” This proposed legislation appears to be a much needed first step towards restoring unalienable First Amendment protections for campus speech on public universities in the United States.

What to read next