Column: How a right-wing group’s proposed ‘free speech’ law aims to undermine free speech on campus

You’ve heard the mantra: Free speech is running for its life on America’s university campuses. Restricted “free speech zones,” speakers “disinvited” because their ideas might disturb students, idea-free “safe spaces” and “trigger warnings”—all work to narrow the range of thought our students are exposed to in precisely the places where the marketplace of ideas should be wide open.

Never mind that the evidence for this conclusion is inch-deep at best, based on a handful of high-profile incidents. That’s enough to fuel a campaign by a far-right organization to promote state laws that would limit the authority of university administrators and faculty members to make judgments about what gets taught on their campuses and their classrooms, and punish students for raising their voices at protest rallies.

The model “Campus Free Speech Act” is a product of the Arizona-based Goldwater Institute. The institute is a master at promoting legislation that looks unassuming, even laudable, on its surface while keeping its right-wing fangs sheathed. It’s responsible, for example, for the right-to-try legislation recently passed by Congress, which conceals its goal of undermining the ability of the Food and Drug Administration to regulate the pharmaceutical industry behind the claim that it’s merely providing “compassionate” last-chance treatment for patients with terminal illnesses.

The free speech act works a similar scam. “Free speech” is a principle everyone can support. But the Goldwater bill actually is designed to promote a partisan conservative agenda. Measures based on the Goldwater proposal have been introduced in seven states and passed in two.

“I would describe it as stripping universities of any autonomy or editorial discretion and empowering outside groups to decide who gets to speak on campus,” says Michael Simkovic, a law professor at USC who has been sounding the alarm about the proposal.

He’s not alone. In a report issued last month, the American Assn. of University Professors warned that “campus free speech laws and academic freedom are ‘false friends.’” In the Goldwater case, the AAUP asserted, “a political agenda is masquerading behind ‘free speech.’” Goldwater gives the game away, the AAUP says, by presenting its legislation as an instrument to “change the balance of forces contributing to the current baleful national climate for campus free speech.”

The essence of free speech rights, the AAUP observes, is procedural—creating a reasonable process for access to campus. Goldwater’s intention is “not process but outcome...to bring about a new ‘balance of forces’ on college campuses.

The AAUP also noted the Goldwater proposal’s punitive character: It provides for yearlong suspensions or expulsion for “infringing the expressive rights of others” without defining what infringement entails. And it allows supposed victims of such infringements to sue for damages and receive attorney fees and costs, an invitation to nuisance litigation against universities.

Universities coast to coast have been grappling with the challenge of creating a fair process. That includes UC Berkeley, which launched such an effort in 2017 after disruptive protests affected appearances by right-wing speakers Ben Shapiro and Milo Yiannopoulos and cost the university $4 million in security expenses. Right-wing author Ann Coulter also had been scheduled to appear at a campus event organized by Yiannopoulos, but canceled.

The result was a report and set of proposals by a blue-ribbon commission composed of students, deans and faculty, including Berkeley law school Dean Erwin Chemerinsky, an expert on free-speech law. The panel proposed revising the university’s major events policy to accommodate larger gatherings, augmenting its free speech zones, which are open to impromptu gatherings, and taking steps to make police “a less intimidating presence at controversial events.”

The members also recommended finding ways to ensure that student organizations planning to host potentially controversial speakers make the case that their events fulfill the institutional goals of the UC Berkeley community.

The Berkeley commission’s report did underscore something we’ve pointed out in the past: The “free speech” crisis on campus has been hugely exaggerated, chiefly by conservatives irked that their viewpoints don’t get as much purchase on college campuses as they’d wish.

In the fall, the academic term that produced some of the more widely reported incidents of speaker conflicts around the country, faculty members and student groups scheduled no fewer than 11,460 non-departmental events on the Berkeley campus. How many “created a disturbance,” according to the commission? Two. They were the Shapiro and Yiannopoulos events.

This fits our analysis last year of the work of the Foundation for Individual Rights in Education, or FIRE, a self-appointed watchdog of politically correct “disinvitations” of controversial campus speakers. Last year, FIRE claimed that the 43 “disinvitations” of campus speakers it had logged for 2016 set a record, besting the previous record of 34 set in 2013.

Leaving aside that even 43 episodes represents a minuscule fraction of what must be hundreds of thousands of speaking invitations proffered by the nation’s thousands of college campuses each year, we found that only 24 actually involved a speaking invitation that had been withdrawn, as opposed to protests lodged against scheduled events that actually took place.

Of the 43, moreover, 11 involved Yiannopoulos, who seems to prefer being ejected from events to actually participating in them (then he doesn’t have to, you know, bother preparing a speech). The 11 cases resulted in only four Yiannopoulos event cancellations, including one that Yiannopoulos himself canceled.

Even by FIRE’s standards, the issue would seem to be ebbing. Its database records 36 “disinvitations” in 2017 of which, by our count, only nine resulted in canceled events; and nine “disinvitations” so far in 2018, of which only one appears to have resulted in a genuine cancellation.

The real aim of the Goldwater bill and and other campus “free speech” measures isn’t to open the campus to more debate, but to stifle it. “They do a lot to monitor students, administrators and faculty and have more political interference in the operation of universities,” Simkovic says.

Make no mistake, the bulk of those efforts comes from the right. At the University of North Carolina, for example, the politically appointed Board of Governors last year banned litigation by the law school’s Center for Civil Rights, which had a tradition of bringing lawsuits on behalf of low-income minority communities—think of it as teaching students well by doing good. The board fired the center’s director, who was described by one board member as “a political hack who has abused university resources for years to further his liberal political agenda.”

At the core of this entire debate stands the question of who gets to decide which speakers have access to the university campus. It’s not the case now, and never has been, that a campus can or should be open to every idea and every speaker.

After all, universities impose judgments all the time on what gets presented to students. “There are standards of what is good academic work and who a university would want to hire,” observes Simkovic. “Those standards are not political in nature. Whether the research methods used are rigorous and well-established, whether they have tended to lead to an increase in knowledge and not simply for purposes of advocacy. Part of the teaching value that universities provide is curation.”

Does anyone really believe that every notion that swims into someone’s head is worthy of access to a campus venue? The Earth is flat? The Holocaust is a myth?

The Berkeley committee wrestled with how to make such distinctions. The invitation to Shapiro, the panel observed, could plausibly be viewed as “intended to broaden the political discourse,” as he had been open to engaging with ideological adversaries.

Yiannopoulos and Coulter, not so much. “Many commission members are skeptical of these speakers’ commitment to anything other than the pursuit of wealth and fame through the instigation of anger, fear, and vengefulness in their hard right constituency,” the report said.

The Goldwater model bill would give them open access to any campus, at the expense of the university, just because a student group, or even a student, wishes to hear them. (As the Berkeley committee observed, the $4 million the university spent for security for just three events in 2017, including the Shapiro and Yiannopoulos appearances, came out of a budget better spent on actual educational functions.)

That’s not a formula for open discussion, but for wanton interference in the purpose of the university. Decisions by university officials, faculty members and legitimate student organizations aren’t flawless, but would you really prefer that the judgments of state legislators take precedence? The principle upheld by the model bill is that of a wolf in sheep’s clothing.

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