Andrew D. Bartholet
Early this August, North Carolina became the latest of several states to enact legislation that supposedly protects free speech interests at public universities. The common theme of the new legislation across the country is a mandate that punishes students who disrupt the “protected free expression rights of others.” Perhaps, such laws may cause more harm than good to free speech and academic integrity.
The sort of “free speech” that is protected by the constitution includes that of controversial speakers scheduled to appear on campus, as well as the persistent protests of dissenting student bodies. The First Amendment to the Constitution protects speech from infringement by the federal government. The 14th Amendment to the Constitution protects speech from infringement by the states.
Public universities are operated by the states; therefore, they are considered states for free speech discussions. No law exists that protects speech against infringement by people who are not states or the federal government. In fact, any such law would inherently violate the free speech rights that the Constitution set out to protect.
In effect, a law passed to ensure that a controversial speaker has a quiet audience by punishing students who cause otherwise, violates the protesters’ rights to free speech. No framer of the Constitution or any of its amendments would have intended that a person be able to walk into any forum and say whatever he or she wanted without fear of being booed off stage. Protests, while they must be peaceful, are supposed to be disruptive, and any effort to subdue that effect would cripple a cornerstone of American politics, the free demonstration of dissent.
On the other hand, universities are meant to be a place where students can learn how to participate in politics and intellectual discussion respectfully and academically, and surely some of the recent conduct on various American campuses has been far from respectful or academic.
The rights of universities to impose regulations of academic conduct on their students have been long recognized. These regulations are meant to enforce guidelines on how students should act when at school and when participating in school activities. Even though such rules may place limits on free speech, their necessity in preserving an academic environment is likely why courts have upheld their validity over their decades.
Essentially, universities already have the academic right and duty to protect free speech on campus. Universities ought to use this clout to limit outrageously extreme protests that disrupt the academic environment, and they can do so in a way that preserves the rights of people to share controversial views as well as the rights of others to protest. Any law that regulates how universities manage these issues violates the academic influence administrations have over their campuses.
Instead of legislatures passing laws, administrations need to take firm stances against radicalism in all of its forms. Only then can the academic integrity of their institutions be restored and/or preserved. With a firm stance against radicalism, universities will educate the tolerant, open-minded and intelligent adults society needs.