Tennessee legislators craft a campus free-speech law that actually protects free speech

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While campus “free speech” bills have become fodder for state legislatures reacting to campus violence and protests against conservative speakers this year, the law that quietly passed with broad support in Tennessee a few weeks ago is now garnering national attention–and even some praise for being “politically neutral.”

The “Campus Free Speech Protection Act,” sponsored by two Knoxville-area legislators, forbids public colleges from corralling student demonstrators into a “free speech zone;” disinviting a controversial speaker scheduled by a student or faculty member (or charging a student group unusual security fees to host one); denying funding to student groups based on the viewpoints they promote; or firing professors for controversial statements made in class.

Noting the inflammatory tone of free-speech debates nationwide, with speakers canceled and student athletes harangued for taking a knee during the national anthem, the executive director of the American Civil Liberties Union of Tennessee praises Tennessee’s approach. The law “will protect robust dialogue from a variety of perspectives and ensure that Tennessee students learn how to be informed, engaged, and critical thinkers—the kind of future leaders our state needs for continued growth and innovation,” states Hedy Weinberg in an email.

The law states that the campus is “a marketplace of ideas for all students and all faculty, in which the free exchange of ideas is not to be suppressed because the ideas put forth are thought by some—or even by most—members of the institution’s community to be offensive, unwise, immoral, indecent, disagreeable, conservative, liberal, traditional, radical, or wrong-headed.”

The Senate passed the bill unanimously and only seven representatives voted against it in the House.

“I may have been the most surprised person, given how sensitive this is,” says Senate sponsor Doug Overbey, a Republican from Maryville, adding that he thinks it might become a national model. “No matter your political persuasion or point of view, I think it’s equal treatment for all who wish to exercise their First Amendment rights, faculty as well as students.”

The broad legislative support is particularly notable given that the law flies in the face of the Legislature’s own recent track record of defunding the University of Tennessee’s Office of Diversity and Inclusion after conservative legislators objected to statements on its website and yanking funding for UT’s Sex Week because of legislators’ objections.

The Campus Free Speech Protection Act would forbid the university itself from denying money to student organizations like Sex Week but wouldn’t prevent the Legislature from doing so, says Lucy Jewel, UT associate law professor and secretary of the UT chapter of the American Association of University Professors. “That’s the sort of hypocritical weirdness with this law,” she says.

Overall, Jewel says she thinks the new law is politically neutral and provides a good statement of academic freedom. While many professors agree, Jewel says some think the Legislature is meddling in affairs the university should manage. Plus, the law is “kind of redundant” because the First Amendment guarantees free speech to everyone already, she adds.

The UT administration helped draft the law and supported it. Anthony Haynes, UT vice president for government relations and advocacy, states in an email that the law “clarifies and protects free speech on college campuses as provided by the First Amendment, and it appears to be the nation’s first state law to recognize faculty members’ academic freedom in the classroom.”

A National Trend

Texas, Colorado, Virginia, and Utah also passed laws related to free speech on campus this session, although they are mostly narrower in scope. Two of these, authored by The Foundation for Individual Rights in Education (FIRE), primarily forbid campus “free speech zones” (which imply that free speech isn’t allowed in any other public spaces). Utah’s law allows students whose free-speech rights were violated to sue in state court, and for the court to provide compensation to the victim and to assign specific fines to the university.

At least six more state legislatures are considering new campus free-speech laws. Many borrow heavily from a model created by the conservative think tank the Goldwater Institute, as did a bill floated earlier in the Tennessee Legislature this session. Sponsored in the House by Rep. Martin Daniel of Knoxville, that bill developed on a parallel but separate track from the one that passed, says Rep. Eddie Smith, R-Knoxville. Smith sponsored the successful bill in the House.

The Daniel bill would have included penalties for students whose actions infringe on the free-speech rights of others—a key provision in the Goldwater Institute model, which prescribes suspension as long as a year.

Daniel and other sponsors initially nicknamed this Tennessee legislation “the Milo bill” after an incident at the University of California, Berkeley, where a speech by alt-right provocateur Milo Yiannopoulos was canceled after violent protests. But soon afterward, Yiannopoulos resigned his job as a senior editor at Breitbart News in response to controversy over his comments that seemed to condone pedophilia, and the “Milo bill” languished in committee.

The Yiannopoulos incident was not the only one this year that led conservatives to complain that their views were being suppressed on American campuses. Author Heather MacDonald, a police booster who has criticized the Black Lives Matter movement, was blocked from entering the building where she had been invited to speak at Claremont McKenna College in California. At Middlebury College in Vermont, students disrupted a speech by American Enterprise Institute author Charles Murray, then a mob attacked his car as he left and injured a professor escorting him.

Alex Swisher, president of the Campus Republicans at the University of Tennessee Knoxville, says the UT campus “is definitely a tough environment for conservatives.” She says an “extremely liberally biased” professor yelled at her in front of the class last year when Swisher asked the professor to cite proof for one of her statements. Swisher says she doesn’t think UT offers a good platform for encouraging discourse that is civil on either side.

Events on other campuses weren’t the primary motivator behind the Tennessee law, Smiths says. “We were already spit-balling this idea around before all this happened,” Smith says. FIRE, a national group that advocates for free-speech rights on campus, rates U.S. colleges’ free-speech policies annually. In 2016, out of 449 schools, UT was one of only 27 that received a “green light” rating. Joe Cohn, FIRE’s legislative and policy director, says FIRE does not favor conservative over liberal agendas and represents student groups of both viewpoints in free-speech lawsuits. But it was founded by attorneys critical of political correctness who wrote The Shadow University: The Betrayal of Liberty on America’s Campuses, and the cases listed on its website mostly defend conservative student groups.

FIRE, which openly criticized the Tennessee Legislature’s response to Sex Week, has helped states write campus free-speech laws, Cohn says. It laid the groundwork in Tennessee by working on a bill that didn’t quite make it last year, Smith says.

This time, Smith approached UT general counsel Matthew Scoggins, as well as officials at East Tennessee State University, the University of Memphis, Middle Tennessee State University, and others for help crafting a law. He and Overbey say they have been contacted by national media and people from other states asking how they put it together.

“I don’t want to take a FIRE or Goldwater Institute off-the-shelf policy,” Smith says. “I am a firm believer we can find a Tennessee solution.”

He says many UT faculty in his district had contacted him feeling the university has been under attack from the Legislature. “When you look around the country, conservatives feel liberals are trying to suppress free speech and liberals feel that conservatives are trying to use legislation and laws to suppress their free speech,” Smith says. “So this was meant to protect everyone’s free speech.”

“What they came up with was the best piece of free-speech legislation that’s ever passed,” Cohn says.

Homegrown Elements

The Tennessee law is the only one that addresses academic freedom for professors. It says “faculty shall be cautious in expressing personal views in the classroom” but still bars adverse affects on their employment except in cases when classroom comments are both broadly unrelated to the subject of their expertise and take up “significant” class time.

Although it could have gone even further by protecting faculty speech outside the classroom, Cohn says, “This is by far the most extensive protection of academic freedom that any faculty anywhere have ever enjoyed. FIRE has a long list of cases of faculty that have been fired for fleeting speech that would have been protected by this.”

The law was hailed on the online blog of Academe Magazine, a publication of the AAUP, which had previously attacked the “Milo bill.”

The Tennessee law mentions discipline only to lay out a definition of “student-on-student harassment.” To qualify, it has to be consistent with definitions of discrimination in established law, plus be “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.”

Cohn calls this a huge step. “Over-broad anti-harassment codes are the single most common form of censorship on college campuses today,” he says. “You shouldn’t be able to punish people for being rude.”

Jewel expressed concern that, under this definition, the incident last fall at ETSU when a student was arrested for wearing a gorilla mask while handing out bananas at a Black Lives Matter event would have qualified as protected speech. “If that wouldn’t be considered harassment, it’s a little perturbing,” she says.

Cohn says it wouldn’t. “The gorilla suit thing is protected conduct, and it should be. We need to get out of the idea that we overcome things like racism through censorship,” he says. “We overcome racism by bringing issues into the light, discussing them, and making a persuasive case against them.” (The Mercury attempted to speak with representatives of UT’s Black Student Union and the Black Law Students Association but was unable to reach anyone during summer break.)

Smith says writing specific punishments into the law would leave “faculty or administration determining whose free speech trumps whose.”

“We just don’t want freedom of speech on college campuses being shut down any more than we want the free press or religion shut down,” he says. “The one thing I think we need more of in the country is a little more civility. There’s just a little too much hatred right now.”

Featured Photo: Hundreds of UT students and supporters hold a demonstration and march through campus in April 2016 opposing a state bill that would defund the Office of Diversity and Inclusion. That bill became law without a signature from Gov. Bill Haslam on May 20, 2016. Photo by Clay Duda.

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S. Heather Duncan has won numerous awards for her feature writing and coverage of the environment, government, education, business and local history during her 15-year reporting career. Originally from Western North Carolina, Heather has worked for Radio Free Europe, the Institute for War and Peace Reporting in London, and several daily newspapers. Heather spent almost a dozen years at The Telegraph in Macon, Ga., where she spent most of her time covering the environment or writing project-investigations that provoked changes such as new laws related to day care and the protection of environmentally-sensitive lands. You can reach Heather at heather@knoxmercury.com

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