Dan Forest and North Carolina’s Restore Campus Free Speech Act

by Stanley Kurtz

North Carolina’s Lieutenant Governor Dan Forest has just announced his intention to work with members of the General Assembly to pass the Restore Campus Free Speech Act, a bill designed to protect freedom of speech within University of North Carolina system. North Carolina’s Restore Campus Free Speech Act is closely based on the model campus free speech legislation I published last week in collaboration with Arizona’s Goldwater Institute.

I have been working with Dan Forest’s office since shortly after I laid out “A Plan to Restore Free Speech On Campus” here at NRO in late 2015. Forest and his staff provided critical early encouragement and support for the approach that eventuated in the Goldwater proposal, and in what will shortly be the proposed North Carolina Restore Campus Free Speech Act.

Earlier this week, the Virginia’s House of Delegates passed HB1401, a bill also designed to protect freedom of speech on campus. Virginia’s HB1401 is well intentioned, and certainly can’t hurt. But the very brief bill text essentially reaffirms what is already the case: public colleges and universities are covered by the First Amendment. Indeed it is shocking that while 76 voted in favor of Virginia’s HB1401, 19 opposed it. Do those 19 Nays actually oppose the application of the First Amendment to public colleges and universities?

Here is the full text of Virginia’s HB1401: “Except as otherwise permitted by the First Amendment to the Constitution, no public institution of higher education shall abridge the freedom of any individual, including enrolled students, faculty and other employees, and invited guests, to speak on campus.”

Some might say that Virginia’s HB1401 is unnecessary, since it simply reaffirms as a matter of state law what is already guaranteed by the federal Constitution. Yet restating and reaffirming in state law what is already constitutionally the case might at least catch the attention of university administrators.

In any case, the problem with Virginia’s HB1401 is that, despite the fact that the First Amendment has long applied to public universities, administrators ignore it anyway. Free speech is already the law at our public colleges and universities, but that hasn’t prevented administrators from disinviting speakers, creating restrictive speech codes, or refusing to punish students who disrupt and shout down visiting speakers.

Great organizations like FIRE (the Foundation for Individual Rights in Education) make use of First Amendment law to press colleges and universities to defend freedom of speech. Yet for all of FIRE’s indispensable successes—and there have been many—free speech is still in serious trouble on our college campuses. Clearly, campus administrators have failed to take the First Amendment seriously, and no one using the laws currently at hand has been able to fully roll back the anti-free speech tide.

The only way to restore free speech on our college campuses is to create the enforcement mechanisms for First Amendment rights that university administrators refuse to effect on their own. That is precisely what Dan Forest’s Restore Campus Free Speech Act will do. Restrictive speech codes will be nullified; disciplinary sanctions for those who interfere with the expressive rights of others will be created; those whose free speech rights have been infringed by public universities will be allowed to sue and recover court costs and attorney’s fees; students will be informed of both the principles of free speech and the penalties for silencing others; and a system of public oversight will ensure that administrators take these provisions seriously.

It’s true, of course, that law alone cannot restore free speech to the academy. Too many students, faculty, and administrators have simply stopped believing in the First Amendment and the values it embodies. Yet it’s equally true that cultural change will not suffice in the absence of enforcement mechanisms. And because it mandates that students will learn basic principles of free speech at freshman orientation, North Carolina’s Restore Campus Free Speech Act can help even with cultural change.

In short, the essential first step toward restoring campus free speech is creating new incentives to counter the pressure on administrators to cave in to intolerant demonstrators. (This point was taken up by Peter Berkowitz in his discussion of the Goldwater Institute proposal, and expanded on by George Leef the other day.) The North Carolina Restore Campus Free Speech Act is specifically designed to strengthen the incentives for administrators to take the First Amendment seriously, in a way that Virginia’s HB1401 is not.

I hope Virginia’s Senate passes HB1401, but I also hope that Virginia and every other state will take a serious look at the Model Campus Free Speech Act, and at North Carolina, the first state to turn it into a full-blown legislative proposal. Updates on North Carolina developments will follow as the debate over Dan Forest’s Restore Campus Free Speech Act plays out.

Stanley Kurtz is a senior fellow at the Ethics and Public Policy Center. He can be reached at [email protected]

The Corner

The one and only.