The Campus Free Speech Act: A Way to Restore the Marketplace of Ideas

Between the rise of safe spaces, trigger warnings, speaker disinvitations, and the often illiberal conduct of campus demonstrators over the past few years, it’s clear that the core constitutional value of free speech is now under siege at our colleges and universities. The fraying of commitment to freedom of speech on the part of college educated millennials, as well as many faculty and administrators, has reached the point where it threatens not only liberal education, but the very survival of the liberty of thought and expression in America at large.

To address this problem, Arizona’s Goldwater Institute and I have collaborated to devise comprehensive state-level legislation designed to restore freedom of speech to the American academy. The resulting model state-level legislation, made public this week along with a white paper explaining its provisions, constitutes what is very possibly the most comprehensive effort ever undertaken to restore and protect freedom of thought and expression on America’s college campuses.

The model Campus Free Speech Act would instruct the governing body of a state university system—generally called the board of trustees or board of governors—to craft a university-wide policy statement that unmistakably affirms the centrality of free expression. The statement would make it clear that it is not the proper role of a university to shield individuals from ideas or opinions they find unwelcome, disagreeable, or even deeply offensive. By legislative provision, this new statement would supersede and nullify any restrictive speech codes adopted by any constituent school of the state university system.

Second, the system’s campuses would be declared open to any speaker whom students, student groups, or members of the faculty have invited. This would prevent administrators from disinviting speakers, however controversial, whom members of the campus community wish to hear from.

Third, the bill would expressly bar students, faculty members, employees, or any other members of the university system from interfering with the freedom of others to express their views. This means no more shouting down of visiting speakers, and no more obstruction of legitimate meetings and events.

In order to protect the free-speech rights of visiting speakers, and of everyone else on campus, the bill would authorize a range of disciplinary sanctions for those who interfere with the speech of others, with particularly strong penalties for anyone who commits a second offense. Equally important, the model bill includes very strong protections for the due process rights of students accused of interfering with the expressive rights of others.

In authorizing disciplinary sanctions for those who interfere with the free speech rights of others, the model bill draws inspiration from the classic affirmation and defense of campus free speech, Yale University’s Woodward Report of 1974. The Woodward Report not only eloquently upheld the centrality of free expression to the university’s mission, it also laid out a strategy for fairly but firmly punishing those who had forcibly silenced the speech of others. The discipline policy devised by the Woodward Report remains in Yale’s regulations to this day, and new the model Campus Free Speech Act takes a leaf from that book.

Unfortunately, we tend to take it for granted nowadays that students, and even faculty members, can disrupt university functions, interrupt, and shout down speakers they don’t like, and yet suffer no penalty whatever. That is wrong. Legitimate protest must of course be permitted and protected. Yet interrupting, physically assaulting, or shouting down speakers is tyranny, pure and simple, and cannot be tolerated by any community that cherishes and protects free expression.

Freedom is not a license to attack your foes. License of that sort is the opposite of freedom. If you want to understand freedom, consider what Justice Oliver Wendell Holmes of the Supreme Court famously said in 1929: “If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.”

If true freedom of speech is “freedom for the thought that we hate,” then freedom is actually a form of self-mastery. Far from being license, true freedom is an act of self-control, a refusal to physically extinguish even the speech we abhor. Freedom is a refusal to attack our opponents with everything we’ve got. Campus demonstrators have mistakenly elevated what they think of as sensitivity and civility over the principle of free expression. Yet the truth is, freedom of speech itself is the ultimate act of civility.

This means that the minor passing offenses that are the price for our tolerance of free speech are well worth putting up with, because in the long run a society that practices freedom is a society that promotes civility. In the long run, free speech is our most certain path to mutual respect and civil peace, while the rejection of free speech almost guarantees descent into civil strife. It all happened before our eyes in the fall of 2015 on our college campuses, when attempts to shut down speakers and take over meetings gave us a tiny taste of the kind of civil conflict that is commonplace in countries that lack true freedom.

And there’s more to this proposed legislation than a powerful affirmation of the right to free speech, a provision discouraging speaker disinvitations, and the creation of a fair but firm discipline policy for those who interfere with the speech of others. The model bill would also instruct university boards of trustees to issue a statement that defines and defends the principle of institutional neutrality on public policy controversies of the day.

It’s often forgotten that institutional neutrality is a critical component of campus free speech. If a university, as an institution, were to take a public stand on controversial issues such as military intervention in the Middle East or the role of government in health care, this would put tremendous pressure on any faculty or students who disagreed with the university’s posture.

We see this problem play out today in crusades to have colleges and universities divest themselves of any stock in oil companies, or in the state of Israel. It’s often argued that colleges ought to avoid such divestment schemes because of their fiduciary responsibility to protect and enlarge their endowments. Yet the most important reason to avoid politicized divestment schemes too often remains unspoken. Any college that joins in the fossil-fuel divestment crusade, or that acquiesces to the campaign to boycott, divest, and sanction the State of Israel is taking an institutional stand that inevitably places unfair pressure on faculty and students who do not share these political views.

The classic statement in defense of the need for institutional neutrality at universities is the University of Chicago’s Kalven Report of 1967. The Kalven Report rightly argues that the neutrality of the University is in fact the surest guarantee of free inquiry and viewpoint diversity in its members. The fullest freedom for faculty and students, as individuals, to participate in political action and social protest actually requires the institutional political neutrality of the university itself. And the Kalven Report is a crucial inspiration for this provision of the model bill.

Note, however, that this provision of the bill is written in such a way as to affirm the general principle of institutional neutrality, while still leaving the university considerable flexibility in deciding exactly how that principle ought to be applied in practice.

The model bill would also instruct state university system trustees to include in freshman orientation programs a section describing all of these various policies and regulations. The idea is to explain to the students from the very beginning of their time at the university how vital the principles of free speech are. It’s also critically important that students understand from the start the discipline policy for interfering with the free speech rights of others. The goal, of course, is not to punish students for interfering with the expressive rights of others, but to deter them from undertaking such actions in the first place.

Additionally, the model bill would mandate the creation of a Committee on Free Expression within the university board of trustees, and would charge it with issuing an annual report to the public, to the governor, and to the state legislature on the status of free expression, on the status of administrative discipline for the disruption of speech, and on the status of institutional neutrality in the state university system. In effect, this provision institutionalizes what Yale did in the 1970s when it created the Committee on Free Expression that issued the famous Woodward Report.

Such a public report would also create a counterforce to pressure on university administrators from anti-free-speech demonstrators. Now university administrators will have to worry about more than angering demonstrators who suppress the speech of others. Under the model bill, every year, university administrators will have to answer to the people of their state for their defense of free speech, for their willingness to discipline those who would interfere with the speech of others, and for their willingness to uphold the critical principle of institutional neutrality.

Keep in mind that this is merely a public report, the real power of which lies strictly in the light that it sheds, and in its ability to persuade. Yet simply exposing the betrayal of free expression at Yale and making recommendations for improvement was enough to bring positive change to that university in the 1970s. A public report by a Committee on Free Expression worked then for Yale, and would work now and in the years ahead for our various state university systems.

Bear in mind that all of these provisions are designed to work in concert. By strongly affirming the core principles of free expression, creating a discipline policy for those who interfere with the freedom of others, informing students of the principles of free speech and of the penalty for disregarding it, and then holding administrators publicly accountable for failure to enforce the provisions of the bill, the model bill is designed to create a virtuous cycle that will prevent speaker shout-downs and disinvitations from ever happening in the first place.

Another provision of the model Campus Free Speech Act prevents public universities from creating restricted “free speech zones.” In fact, individuals who are prevented from speaking on campus, are relegated to unreasonable “free speech zones,” or are discriminated against based on the content of their speech will have recourse to the courts. Universities may be compelled by the courts to compensate successful plaintiffs for reasonable court costs and attorney fees. And this, of course, creates yet another incentive for university administrators to protect free speech.

In short, the model Campus Free Speech Act is an ambitious attempt to restore freedom of speech to our public colleges and universities, an attempt that can and should serve as a model for private universities as well.

Virtually everything in this proposed bill is based on the very best models we have for defending free speech at our universities, from Yale’s Woodward Report to the University of Chicago’s Kalven Report and Stone Report. Liberals and conservatives alike should be able to support the Campus Free Speech Act, just as Yale’s Woodward Report in its day was praised and supported across the political spectrum.

The model Campus Free Speech Act embodies the common understanding of liberty that unites all of us as Americans, even as it allows us to work out our differences through the democratic process.

(Editor’s note: Stanley Kurtz, senior fellow at the Ethics and Public Policy Center, discussed the model Campus Free Speech Act at the Martin Center’s January 13 meeting for members of the University of North Carolina Board of Governors. He can be reached at comments.kurtz@nationalreview.com.)

  • George Leef

    Thanks for a superb essay and all the work that you put into drafting the model bill, Stanley. It will be most interesting to see how the bill fares in North Carolina and all other states where it is introduced. I suspect that many “liberal” politicians will find reasons to oppose it and allow campus administrators to go on as they have been, which is to say ignoring the importance of free speech and taking sides.

  • mitchelllangbert

    This is an excellent proposal. I appreciate your insights, and I have forwarded your essay to my congressman. I will also forward it to the president of my college, which has a dismal track record in protecting free speech.

  • Carl Fales

    I have come up with my own term to describe these little fascists on college campuses (and elsewhere) – “the totalitarian left”.

    Because only totalitarians want to shut down all debate. There are still some (a minority, perhaps – but still some) liberals who agree with freedom of speech. Who agree that it is meaningless unless people are allowed to say things you not only disagree with or find offensive, but things you consider to be “hate speech”.

    • Glen_S_McGhee_FHEAP

      Right, but the “totalitarian left” is no excuse for, as proposed here, a “totalitarian right”!

      Yes, I agree, “totalitarians want to shut down all debate,” but that is what these statutory provisions would do. Maybe now, with Trump conservatism on the upswing, the left won’t have all the inspiring rallies and lectures.

    • George Leef

      Apropos of that, Kurtz hit the nail on the head when he wrote that freedom requires self-mastery to allow speech by those with whom you disagree the most. That self-mastery is the essence of civility and is conspicuously lacking among today’s so-called progressives. Actually, they want to take us in a regressive direction, back toward central control over action and thought as under feudalism.

      • Carl Fales

        Remember when the ACLU defended the right of Neo-Nazis to hold a march in Skokie, IL back in the 1970’s? Skokie was a suburb of Chicago with an unusually high number of Holocaust survivors at the time.

        The ACLU has fallen a long way since then, unfortunately.

      • DrOfnothing

        I find this demand for civility rather ironic considering how viciously you attack your ideological opponents in your own commentaries. Perhaps try practicing what you preach?

    • Douglas Levene

      We could call them “Red Guard wannabes.” They’re just wannabes because they haven’t killed anyone yet.

  • Krista Katzenmeyer

    As a alumni of UNC Chapel Hill, I find this proposal troubling. For instance, say the university were to invite a speaker who has made statements about Muslims that contributes to the Islamophobic attitudes that resulted in the deaths of the young students Deah, Yusor and Razan during my last year at Carolina. Do students not have a right- and responsibility- to deny this person a platform to promote hate that can lead to violence? I agree that ideally we should all listen and respect everyone’s freedom of speech- but if someone else’s speech is contributing to outcomes like those of Deah, Yusor and Razan- shouldn’t my right to peacefully stand up to it also be protected?

    • Glen_S_McGhee_FHEAP

      Yes, for example, riots and violence can be initiated at rallies and mass gatherings. But these are more likely to be sports events, not academic or political lectures. In fact, it is surprising that acrimonious debates don’t produce more mayhem, but it rarely occurs. A single speaker is unlikely to contribute to outcomes such as you describe. Even a week long Islamophobic conference or a Trump rally did not result in the kind of violence you refer to.

      Rather, the fear of producing violence, the fear of something leading to violence or contributing to violent deaths, will more quickly and surely end open debate than allowing debate will result in violence. History teaches us that pushing ideas underground, repressing free expression, run the risk of creating ideological bubbles, filter bubbles, that can intensify under certain conditions. Yes, the danger is that violent factions will grow under the conditions of free speech — but this has always been a risk — and, if you think about it, the outcome of the “liberty madness” contagion that swept the coastal colonies proves the value of having both the good and the bad in full measure.

      • Krista Katzenmeyer

        Thank you for the thoughtful response!

    • bruceheiden

      “Contributing to outcomes”: it would be necessary to demonstrate the linkage specifically and concretely, i.e., that the speech could reasonably be deemed incitement. In that case it would be legitimate for the university authorities to prohibit the event–but not for student vigilantes. “Stand up to it”: You already have the right to carry signs or chant slogans outside the event. But if an event has been sanctioned by the university authorities, no student has or should have a right to prevent or disrupt it, or to harass participants.

      • Krista Katzenmeyer

        Thanks for thoughtful response! Good points. Another part of the white paper I find troubling is the idea of “institutional neutrality”. In theory, I agree with it, but I worry in practice it makes a little less sense. For example, the white paper says students campaigning universities to divest from oil companies is “[tending] to inhibit intellectual freedom”. But what does true “neutral” look like in this situation? It also says institutions should remain neutral on “public policy controversies of the day”- but if the controversy is human rights… Should the institution really stay neutral? I guess I find the the vagueness and potential for abuse of the sanctions to be unsettling. I mean it seems to me like there is a route in there for a university to expel a student for campaigning for environmentally friendly policy on the grounds of climate change being a “public policy controversy” instead of a scientific matter.

        • bruceheiden

          I can’t speak for the author of the proposal, but I’d bet that by “institutional neutrality” he means that the university as an institution should abstain from taking an official position. This is what they normally do anyway: does any university have an official public position condemning the human rights issue of female genital mutilation? I doubt it, and the countries where it is practiced won’t stop because some universities in the US condemned it. I don’t think Kurtz’s proposal is intended to restrict *students* from advocating policies, only to shield the institutions themselves from becoming the targets of the advocacy (e.g., campaign to *make* UNC *endorse* BDS). And students could still have the campaign; they’d just have no expectation that it could succeed *by commandeering the university*.

          • Krista Katzenmeyer

            Thanks for your thoughts! I don’t disagree but I still have some reservations. For example in 2015, students campaigned UNC to change the name of a building on campus that was named after a former head of the KKK (Saunders Hall now renamed Carolina Hall). This seems like a situation where the institution cannot truly stay neutral: either it changes the building name or it doesn’t. To what extent are the students’ rights to advocate this issue still protected under the proposed law?

          • bruceheiden

            As far as I can tell–and as I said in my reply above–the right of students to *protest* (non-coercively) would not be affected by a policy of institutional neutrality at all. And a policy of issue-neutrality couldn’t prohibit a university from naming a building after *a person* or changing a name previously applied. Now under institutional neutrality a university definitely shouldn’t have a building called “KKK Hall”, or “NARAL Hall” for that matter. But If Cecile Richards made a big contribution to a university and they named a building after her (without any additional signage to publicize her cause) I personally wouldn’t see that as a violation of the neutrality principle, and I’d be surprised if anybody else felt that a Richards Hall named for the late Cecile Richards was offensive enough, even to a pro-lifer, to merit objection–they protest abortions, not the names on buildings. (However, an effort by *third-parties* to raise money so that Richards’ name could be put on a university building might be a different and debatable matter.) I don’t think Kurtz’s goal is to prohibit universities from having any *connection* with advocacy whatsoever. I think he means only that universities should not officially “sign on” to a given side of a publicly debated issue. Does he say anything that would make you think otherwise?

          • Krista Katzenmeyer

            Appreciate your thoughts! Those are compelling examples.

            The paper says that “institutional neutrality” inherently means that there exists “a heavy presumption against the university taking collective action or expressing collective opinions on the public policy controversies of the day, or modifying its corporate activities to foster social or political values”. But wasn’t racial segregation vs integration once considered a “public policy controversy”? However social and political values shifted and in turn institution policies did as well… is that not considered an institution taking collective action to foster social and political values? The wording of the paper leads me to believe students pressuring institutions to racially integrate during a controversial time could be acting contrary to “institutional neutrality” and considered “[inhibiting] intellectual freedom” of those who still support the in-place system of segregation. So I guess my question is- in this scenario would student protesters be protected from the sanctions described in the bill? An example to consider: I believe mixed-gender campus housing was advocated for during my time at Carolina- are students advocating for the university to recognize non-binary genders infringing on institutional neutrality and the intellectual freedom of those who don’t believe in non-binary genders or are they fighting for their right to chose a non-traditional gender identity and still receive campus housing? The wording of the paper isn’t clear to me.

            Another thing I have questions about is a speaker’s right to sue and receive compensation for legal fees for being denied the right to speak at a university- does this clause apply to invited speakers that students prohibit from speaking or also to uninvited speakers who are denied requests to speak? Perhaps some concrete examples of how this law might work in practice would help clear this up for me.

          • bruceheiden

            I’m going to have to reread Kurtz’s proposal, but unless I miss something *student protesters* would *always* be protected as long as their protests didn’t infringe upon the speech rights of others. The “neutrality” issue, I repeat, has to do with a university endorsing–literally endorsing, by a statement–a position. A university that has a coed student body hasn’t advocated for coeducation elsewhere, and Barnard–which I believe is still all-female–doesn’t advocate for single-sex education as a model for other colleges. So I don’t think your question about racial integration actually applies to Kurtz’s proposal, which isn’t about the authority of schools to make their own policies about their own students–transgender, differently abled or whatever. They (again, “they” refers to a university’s *administration* corporately) are just not supposed to make the institution perform as an *activist* with respect to the political arena outside its boundaries. Because when they do that, they are creating a rationale to inhibit differing views among members of the campus community. The activism is to be performed by other groups, under the university’s *protection*, and therefore without its *participation*.

          • Krista Katzenmeyer

            Okay I think understand the distinction you’re making here. Students should be allowed to petition university policies within the institution rather than university’s external position- where students demand the institution itself takes a stance in the public discourse rather than subgroups within the university. So while a university may chose to institute policies internally in response to legitimate student protests (such as co-ed housing or divesting) it’s unreasonable for students to demand universities make public statements on behalf of the university with regard to how other institutions should make policy. Students are free to use activism to influence the internal policy of their institutions to champion their causes by example- but not by demanding sweeping institutional statements. That does make sense and I see the distinction now. I do wonder if laws prohibiting institutions from making such statements would be sufficient for maintaining healthy debate and if the punishment of students would actually be effective or necessary in achieving that goal. I guess that is a different topic of discussion and heavily depends on how exactly an institution chooses to implement the law. I suppose we would have to see different alternatives in place to truly know the answer.

            Thank you for the discussion! Appreciated hearing your perspective to help refine my thoughts on the issue.

          • bruceheiden

            Krista: Here is a link to the actual proposal in its entirety–not a summary. goldwaterinstitute.org/en/work/topics/constitutional-rights/free-speech/campus-free-speech-a-legislative-proposal

            I think you’ll see that the “institutional neutrality” provision is indeed meant to inhibit only public statements by the institution and certain initiatives of mandatory collective action (like committing the institution to campus-wide policies of “sustainability”). The rights of demonstration and other expression are specifically protected (as long as they are not criminal, harassment, etc.). And the specifics are supposed to be worked out (in public documents) by the universities–they are supposed to make their own *versions* of the rules that they will accept accountability for upholding. The proposal does not *prescribe* much of anything, beyond a transparent engagement with the public and its state governments to pursue the *aims* of free speech on campuses.

          • Krista Katzenmeyer

            Yes I did read it I guess I was just unsettled by the vagueness- but I suppose it’s intentional vague as you say to allow institutions to implement it as they see fit. To me, prohibiting students from advocating against “mandatory collective action” feels too vague. For instance at Carolina all students were required to do Title IX training (if I recall correctly)- isn’t that considered mandatory collective action? Would the law punish students for advocating for this sort of action? Does “mandatory collective action” include students advocating for new construction on campus to be LEED certified by asking a university to commit to LEED standards? Or would it be OK to petition that a certain building be LEED but not that all future buildings be LEED as a statement by the institution? It’s unclear to me. But again- I suppose you’re right that it’s all in the interpretation.

          • bruceheiden

            Krista: Where in the proposal do you find anything about prohibiting students from advocating anything? Sections 1.4 through 1.6 are supposed to protect the rights of students to protest. Mandatory collective action refers to *administration* mandates–no matter what students may ask for, it isn’t mandatory unless the administration makes it so. There’s nothing to fear in this proposal–except for activists who want to use the university as a platform to coerce others or prevent viewpoints from being heard.

          • Krista K

            Hm. I think I may have misunderstood what you meant by the provision inhibiting certain initiatives of mandatory collective action.

          • bruceheiden

            Krista: I notice that in one of your comments you mentioned “divesting” (by a university, of its endowment portfolio). A divestment policy that was openly guided by a political agenda would not be considered neutral by a lot of people (me, and I think Stanley Kurtz too). So, if you really want universities to manage their portfolios by making political statements against certain countries (and they won’t be protesting human rights in China or Saudi Arabia, I assure you), and to face pressure from activists to do so, then you probably do have some reason to be concerned about Kurtz’s proposal. Otherwise, it’s about protecting freedom of political speech of all (non-coercive) kinds.

          • Krista K

            OK I see thanks for the clarification. I honestly don’t know very much about endowment portfolios or divestment activism so maybe I will do some further research so I can understand more. Thank you for the discussion!

          • You’re exactly right. Thanks!

    • Rod McLaughlin

      The only hate that has led to violence at American universities recently is left-wing hate. Did you see the violence at UC Berkeley? “Islamophobic attitudes” are not the problem. It’s the suppression of them that is.

    • Steve

      I hope you are young enough to have to live in a world where sharia renders our constitution outdated and irrelevant.

  • Glen_S_McGhee_FHEAP

    I find this proposal ironic, in terms of its organizational footprint, which spans state legislatures, judiciary, governance, and empowerment of inverse-pc panel. All this belies “free,” which, if anything, means unfettered, not routinized, non-standardized, and is spontaneous, with a level of impassioned acrimony that is deemed — post-hoc — to be acceptable.

    How does the proposed regimentation ensure that what manifests is, in fact, “free”? It won’t be, for the simple reason that Big Brother will be watching every move, everything. This proposal reminds me of Jeremy Betham’s infamous panopticon, the absolute antithesis of free.

    It is also missing a cost-benefit analysis, a necessary component for legislative action. How much will it cost to implement? Has it ever been tried before?

    Woodward and Kalven aside, this proposal seeks to institutionalize that which cannot and should not be institutionalized, and does so in ways that go far beyond these earlier compromises.

    How ironic that I should argue against this proposal by appealing to “freedom,” the very thing the proposal seeks to “defend.” The only thing free speech needs to be defended against is Big Brother encroachments such as this.

    • Steve

      I fear that 50 years of government schools have made the concept of the first amendment all but dead.

  • Glen_S_McGhee_FHEAP

    Apparently, our new president wants to end “institutional neutrality” by ending the legal requirement that IRS non-profit status demand “institutional neutrality.” The logic behind this proposal mystifies me. Can someone please explain? Thank you.
    https://www.insidehighered.com/quicktakes/2017/02/03/johnson-amendment-and-higher-education

    • Steve

      Institutional neutrality would be welcome. The IRS singling out conservative groups is anything but neutral.

  • Rod McLaughlin

    “craft a university-wide policy statement that unmistakably affirms the centrality of free expression”

    Did you see how the university administrators at Berkeley, together with the city authorities, told the police to stand back while innocent people were being assaulted on campus, fires were being lit, windows broken, and freedom of speech shut down, on February 1st this year? It’s no good “crafting” a “statement”. American universities need a Stalin-style purge, but in a politically opposite direction.

    • DrOfnothing

      So, you are advocating for a Nazi-style purge instead (that being the “politically opposite direction”)? With Trump in the White House and the white-nationalist Bannon steering the ship, you might indeed get your wish.

      • Steve

        Why do you hate white people?

        • DrOfnothing

          Everyone needs a hobby.

        • DrOfnothing

          Because they keep buying up all the cheap SPF 50 at the local Walmart. Really annoying, that.

  • DrOfnothing

    Universities are meant to lead the intellectual development of society, not follow the ideological will of think-tanks, pundits, and a right-wing Conservative minority. You don’t respond to the expression of opposition with the suppression of opposition by decree. Nice try, Mr. Kurtz, but no thank you.

    • Steve

      Do you believe that conservatives should shout down leftists as you believe leftists should do to conservatives?

  • Glen_S_McGhee_FHEAP

    We all know the work of FIRE to champion the rights of those unlucky enough have them trampled by administrators. Their critique of Bias Response Teams also applies here, hammering home the point that free speech cannot established by fiat or ukase, but has the reverse effect.
    https://www.insidehighered.com/quicktakes/2017/02/08/fire-releases-survey-bias-response-teams