Speech on Public College Campuses Liberated in One State

This article appeared on Cato​.org on April 16, 2014.

On April 4, Virginia Gov. Terry McAuliffe signed into law a bill unanimously passed by the House of Delegates and the Senate, which turns outdoor areas on the state’s public college and university campuses into what the Foundation for Individual Rights in Education, or FIRE, calls “public forums.”

In other words, student speech will not be limited to the tiny “free speech zones” that, as FIRE documents, restrict student speech in “1 in 6 of America’s 400 top colleges” in this land of the free and home of the brave.

This is America? In these places of higher learning?

As Greg Lukianoff, president of FIRE, keeps revealing, these tightly squeezed campus speech zones often result in “banishing student protests, leafleting and other basic expression (political or otherwise) to tiny areas far away from the students the speech is intended to reach” (“Virginia Legislature to Campuses: Down With Free Speech (Zones)!” Greg Lukianoff, Huffington Post, April 7).

Of course, FIRE was deeply involved in this historic unleashing of Virginia students’ First Amendment rights. But what about the state’s private colleges and universities? The pressure will now be on them, too, to allow their students to be fully American by speaking freely on those campuses.

It’s important to emphasize that, as FIRE does while it now goes on to give the First Amendment a home on other college campuses, “restricting student speech to tiny ‘free speech zones’ diminishes the quality of debate and discussion on campus by preventing expression from reaching its target audience” (“Virginia Bans Unconstitutional Campus ‘Free Speech Zones,’ ” www​.the​fire​.org, April 7).

“Often, institutions that maintain these restrictive policies also employ burdensome permitting schemes that require students to obtain administrative permission days or even weeks before being allowed to speak their minds.

“Even worse, many of these policies grant campus administrators unfettered discretion to deny applications based on the viewpoint or content of the speakers’ intended message.”

Are students on those campuses learning to be active, knowledgeable participants in this self‐​governing republic?

Virginia’s law, which FIRE is determined to extend to other states’ schools where it’s needed, “prohibits public institutions of higher education from imposing restrictions on the time, place and manner of student speech that occurs in the outdoor areas of the institution’s campus and is protected by the First Amendment to the United States Constitution …”

However, there are restrictions. Watch for these exceptions, because they’re why FIRE always stays on and protects its victories: “the restrictions (i) are reasonable, (ii) are justified without reference to the content of the regulated speech, (iii) are narrowly tailored to serve a significant governmental interest, and (iv) leave open ample alternative channels for communication of the information” (from the State Council of Higher Education for Virginia, www​.schev​.edu).

Meanwhile, FIRE will keep an eye on administrators at the University of Virginia, and so will its student members there, to make sure the law remains whole.

In the history of this nation, no other organization has come close to FIRE in working to safeguard the individual constitutional liberties of college students of all backgrounds and beliefs. That’s why, almost from its inception, I’ve been on the Advisory Council of FIRE.

Because I’m aware of all it does, I know FIRE doesn’t need my advice, so what I do is spread the word of its record of liberty, which would have made James Madison joyous.

According to FIRE’s website, the organization is a “nonprofit educational foundation … (whose) mission is to defend and sustain individual rights at America’s colleges and universities. These rights include freedom of speech, legal equality, due process, religious liberty, and sanctity of conscience — the essential qualities of individual liberty and dignity.”

It should also be noted that FIRE represents no political party — just the American people.

In a pamphlet on college speech codes, FIRE says it’s “been fighting for student and faculty rights since 1999, and we’ve been very successful in doing so. Since our founding, FIRE has won over 190 public victories at more than 135 colleges and universities that have a total enrollment of nearly three million students.

“FIRE is directly responsible for changing over 90 unconstitutional or repressive policies affecting more than 1.9 million students” (“Challenging Your College’s Speech Code,” www​.the​fire​.org).

All along, I’ve been hoping FIRE would also move the First Amendment into high schools. That is beginning to happen, as I’ll report on how this liberation of students and faculties brings the living Bill of Rights into those schools.

And I yearn to live long enough to also see FIRE reach elementary‐​age students, teaching them how to be authentic Americans.

Next week, with the aid of Joe Cohn, FIRE’s Legislative and Policy Director (who testified before both houses of Virginia’s General Assembly in support of the state’s campus free speech law), I will report on the organization’s involvement in another historic U.S. state decision: In 2013, “North Carolina Governor Pat McCrory signed a bill granting public university students in the state facing non‐​academic disciplinary charges the right to an attorney” (“North Carolina Becomes First State to Guarantee College Students’ Right to Attorney,” www​.the​fire​.org, Aug. 23, 2013).

Explained FIRE Senior Vice President Robert Shibley: “Students across America are regularly tried in campus courts for serious offenses like theft, harassment, and even rape. Being labeled a felon and kicked out by your college carries serious, life‐​altering consequences.

“Because the stakes are so high, students should have the benefit of an attorney to ensure the hearing is conducted fairly and by the rules.”

So we have two firsts in the nation! Did you know about this law in North Carolina? Did you know the First Amendment is now flying high across many of Virginia’s college and university campuses? Where are the media?

Nat Hentoff

Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights. He is a member of the Reporters Committee for Freedom of the Press, and the Cato Institute, where he is a senior fellow.