By Selam Mogos
Can your reaction to a guest speaker on your college campus get you in trouble? As of July 31, 2017, the answer is yes. Last July, the North Carolina General Assembly passed “The Restore Campus Free Speech Act.” The Act directed the UNC Board of Governors to draft and implement a new free speech policy for the seventeen campuses within the UNC system. It then states in part that anyone who substantially disrupts an invited speaker shall be disciplined. What the Act does not do is offer any description or guidance as to what conduct is considered to be a “substantial” disruption.
“That provision of the Act causes a lot of uncertainty,” says David Green, Professor of Law at NCCU School of Law, adding, “it’s going to cause some people not to speak up because they are not sure what the potential result will be.” Professor Green is also faculty chair to the UNC Board of Governors, which adopted an amended free speech policy in December 2017. The new policy was drafted throughout late summer and early fall of 2017. During the process, the Board received input from students, professors, university organizers and administrators, among others, as to how the policy should approach speech on campus.
Prior to this Act, university campuses around the North Carolina created what were commonly called “free speech zones.” These zones were designated areas where students, faculty, or even the general public were allowed to stand and speak, address an audience, pander, yell, protest, pray, or simply stand with signs. The physical and ideological notion of a “Free Speech Zone” was first created to move race and gender equality activists away from the main areas on college campuses. Since their inception, Free Speech Zones have continued to push the common understandings and practice of free speech principles. The Act and the Board’s new policy effectively does away with free speech zones, and instead replaces them with a system-wide policy permitting speech across the entirety of UNC’s seventeen campuses. Naturally, many caveats exist which curtail the ability to speak.
The freedom of speech is enshrined in the First Amendment of the Constitution of the United States. However, this freedom is not an absolute. Among other things, the United States Supreme Court has ruled that individual states can regulate the time of day for the speech, the place where the speech may occur, and the way in which the speech is done. A university can regulate the time, place, and manner of a speech, so long as it is not regulating the content. This means that speech cannot be limited or prohibited because of the topical substance or subject matter. Speech itself is not limited to just words and vocal pronouncements. Rather, it encompasses expression through signs, symbols, sitting and even holding your fits in the air, among many other forms. The new Act expands the types of speech that our universities cannot regulate when said speech is on their campuses. These expansions of the classifications of speech make the Act all the more controversial.
The Act broadens the ability for students, faculty, staff and organizations, among others, to protest, pass out flyers and pamphlets, to invite speakers and to generally speak outside of the free speech zones—so long as they are lawfully on the campus. At first blush, this appears to be a generous expansion of existing speech laws. But beneath this seemingly-gratuitous veneer lies a series of consequential limitations on speech at our public universities.
The law does not prohibit counter-protesting. However, it does restrict the ability to protest by creating broad prohibitions on conduct of speakers and counter-demonstrators. If strictly enforced by a university, these prohibitions could result in the severe restriction on the rights of students and faculty to speak in opposition to certain forms of speech on campus.
So what happens when a speaker invited by a student group is considered or otherwise deemed to be a controversial? The Act forbids university administrators and students alike from interfering with the right to bring a particular speaker to out public campuses. This begs the question as to what constitutes “interference.” Under the Act, interfering includes any conduct which blocks a lawful speaker from speaking or otherwise being heard. Generally, this means conduct which prevents or impedes a speaker from entering a building or protesting at a volume that interferes with the audience's ability to hear. Additionally, any individual who does interfere with the speech or the speaker will be subject to “sanctions,” such as suspensions or fines.
The Act breaks down the do’s and don’ts when it comes to exercising the First Amendment right to free speech on campus. Here are a few key points from the Act with explanations and examples:
1. “It is not the proper role of any constituent institution to shield individuals from speech protected by the First Amendment, including, without limitation, ideas and opinions they find unwelcome, disagreeable, or even deeply offensive.” This provision precludes any UNC institution from denying, blocking, or otherwise restricting lawful speech on their campuses, even if the speech is something the institution disagrees with or finds offensive. For example, Auburn University cancelled a program where Richard Spencer, an alt-right white nationalist, was to speak. Though his presence at Auburn University upset a diverse population of students, faculty and the community as a whole, in April 2017, a federal court judge ruled that that the cancellation violated the First Amendment.
2. “Students and faculty shall be permitted to assemble and engage in spontaneous expressive activity as long as such activity is lawful and does not materially and substantially disrupt the functioning of the constituent institution, subject to the requirements of this section.” This provision addresses scenarios wherein a controversial speaker or speech-related issue arises which results in a call for a protest. In such circumstances, student or professors have a right to attend the event and protest, so long as any such protest is done peacefully. For example, when Education Secretary Betsy Devos (R) was invited to speak at Harvard University, students protested her presence and speech by holding signs and their fists in the air to show they did not support her administrative decisions or her presence at their school. The issue with this provision is that the Act does not explain or define a "material or substantial disruption." Is it okay for me to boo? According to the Foundation of Individual Rights in Education (FIRE), “fleeting boos” are constitutionally protected speech and continue to be protected. This is a great example as to why more direction on how to interpret this Act is needed. Without further guidance, it is impossible to know what is and is not allowed.
3. “Consistent with First Amendment jurisprudence, including any reasonable time, place, and manner restrictions adopted by a constituent institution, campuses of the constituent institutions are open to any speaker whom students, student groups, or members of the faculty have invited.” According to the American Civil Liberties Union (ACLU), if a college or university usually allows students to use campus resources, such as auditoriums, to entertain guests, the school cannot withdraw those resources simply because students have invited a controversial speaker to campus.” This is an example of how a university can regulate the time, place and manner of a speech.
4. “Institution shall implement a range of disciplinary sanctions for anyone under the jurisdiction of a constituent institution who substantially disrupts the functioning of the constituent institution or substantially interferes with the protected free expression rights of others, including protests and demonstrations that infringe upon the rights of others to engage in and listen to expressive activity when the expressive activity has been scheduled pursuant to this policy or is located in a nonpublic forum.” It is hard to explain this provision of the Act—that’s because the provision itself is ambiguous. This provision calls for some type of punishment for violators. However, the Act fails to explain what constitutes a violation. What if there is a counter protest that draws a huge crowd? Does that mean they have substantially interfered with a speaker’s free speech rights? Wouldn’t shutting the counter protest down mean their first Amendment free speech rights are being violated? This provision is not only unclear, but it also favors the first Amendment rights of the speakers versus those that oppose the speaker.
5. “In all student disciplinary cases involving expressive speech or conduct, students are entitled to a disciplinary hearing under published procedures, including, at a minimum, (i) the right to receive advance written notice of the charges, (ii) the right to review the evidence in support of the charges, (iii) the right to confront witnesses against them, (iv) the right to present a defense, (v) the right to call witnesses, (vi) a decision by an impartial arbiter or panel, (vii) the right of appeal, and (viii) the right to active assistance of counsel, consistent with G.S. 116-40.11.” This provision of the Act breaks down the procedure after a person is found to have violated this Act. This is based on a person's due process rights, which gives an alleged violator a fair chance to defend his or her action.
What does this mean for public college campuses in North Carolina? In short, the Act allows an individual who possesses and professes controversial views, whether social, political or otherwise, to be invited to speak at Central or any other state university without interference from the hosting institution. That being said, that does not mean that protestors of the invited speakers are left in the dark. Just as the speaker has the right to be there, people in Durham have the right to protest the controversial speaker without interfering with the speakers and their purpose for being there.
However, as mentioned above, the Act fails to specifically define what kind of speech or conduct constitutes interference. The Act’s omissions tend to contradict itself. For example, what happens when the speaker or speech itself materially and substantially interferes with a speaker or the speech? The Act provides only for a protestor's or attendee's material and substantial interference, while leaving absent any procedure for the speaker's own interference with campus life and quality.
In February 2017, Milo Yiannopoulos, a nationalist known for his provocative views on anti-feminism, political correctness and social justice, was scheduled to speak at Berkeley University. A wide range of the student population made known their strong opposition to both his ideas and his presence on the campus. If viewed under the Act and the associated UNC Board policy, Yiannopoulos’s presence would have been deemed to materially and substantially disrupt the university to the point where police from eight different law enforcement agencies and campuses were called in to keep the peace. Additionally, his presence led to injuries and the arrest of numerous protesters. It is thus hard to believe that any speaker or speech that is unwelcome or deeply offensive will not materially and substantially disrupt an institution. This is an example of how the policies regarding campus speech can favor speakers over campus ideology.
What needs to be done to make sure everyone’s First Amendment right to freely speak and express themselves is protected? There need to be more guidance and definitions, according to Professor Green. In other words, there needs to be a workable standard by which to assess speech and conduct on our campus. More guidance is needed so that the same issues on campuses across the state are not being handled differently. As it is right now, the Act and the Board's policy will lead to all seventeen UNC’s campuses across North Carolina implementing it differently. Additionally, more guidance is needed avoid the potential chilling effect on speech. Without clarification on what is an interference or a disruption, there is a strong possibility people would rather stay quiet for fear of punishment. Thus, universities across the state should work together in analyzing this Act and come up with some uniform guidelines on the definitions of a material and substantial disruption.