Many Americans aren’t aware of the special relationship between Tennessee and Texas. Given the ties between the two states, one might fairly say that Texas owes its existence to the Volunteer State. We gave it our former governor, Sam Houston — the man who liberated Texas from Mexico and served as its first president. We gave it Davy Crockett, who heroically gave his life for Texas at the Alamo. And we gave it George Childress, the author of its Declaration of Independence.
So, it is with a pride similar to that of a father for a successful child that I watched Texas this week follow Tennessee to become the 17th state to enact campus free-speech legislation.
In fact, Texas isn’t just following Tennessee, it’s following a number of its neighbors. More states have passed campus free-speech bills in the past five months than in any other year in American history. Eight have been passed, seven enacted.
Moreover, this legislation comes at the very moment when campus speech codes are in a state of dramatic decline. In ten years, the percentage of surveyed universities with clearly unconstitutional speech codes (such institutions are “red light” in the Foundation for Individual Rights in Education parlance) has shrunk from a whopping 74.2 percent to 28.5 percent.
But while it’s encouraging to see speech codes disappear, and the litigation record of free-speech lawyers against campus censors is excellent, campus free-speech bills represent a true sledgehammer against censorship. At a stroke, they often do away with speech zones (which purport to limit free-speech activities to small sections of campus), obliterate speech codes, protect freedom of association, and mandate that students be made aware of their free-speech rights.
Overall, 16 states have dealt with speech zones. A total of 14 states have clearly and unequivocally protected the free-association rights of religious, political, and ideological groups (functionally overruling dreadful Supreme Court precedent in the process), and seven states have precisely and properly restricted anti-harassment laws and placed them within clearly constitutional limits. My state of Tennessee is one of seven “trifecta” states that have dealt with speech zones and speech codes and protected freedom of association.
The Texas bill isn’t perfect, but it’s quite good. It declares the “outdoor areas” of campus to be a “traditional public forum” — a designation that dramatically expands free-speech rights, it requires colleges to promulgate policies designed to protect free expression, protects student organizations from viewpoint-based discrimination, and protects the right of student groups to invite outside speakers. Critically, it prohibits the university from considering the “anticipated controversy” of an event before determining whether to approve a speaker or impose a fee for the event.
It has one troubling provision. The statute requires schools to “establish disciplinary sanctions” for those “who unduly interfere with the expressive activities of others.” The intention is good — to prevent “heckler’s vetoes” (shout-downs and other disruptions) that have plagued multiple campuses across the nation — but the expression “unduly interfere” is not defined. I share FIRE’s belief that “if an institution adopted a policy with identical language, it would likely be unconstitutionally overbroad.”
There is substantial overlap between the states that are passing heartbeat bills and other abortion restrictions and states that are taking decisive steps to protect free speech on campus. For example, late last week Alabama governor Kay Ivey signed into law a campus free-speech act similar to the Texas bill. The result is an entire American region that is attempting to preserve and expand access to two of the three unalienable rights outlined in the Declaration of Independence — rights to life and liberty. In many ways, these are the South’s better days.
While there should be no reason for blue-state legislatures to shun campus free-speech bills, current political reality dictates that red states are the most fertile ground for protecting individual expression, and with with the vast majority of legislatures under unified Republican control, there is no reason for this quiet free-speech revolution to slow down. There should exist a vast zone of liberty on red-state public campuses.
When you combine red-state legislation with a number of blue-state litigation victories (the First Amendment applies to red and blue America alike), the true picture of campus censorship is far, far less dire than the sensational stories suggest. It’s far less dire than it was ten years ago, and it’s virtually unrecognizable compared with its status when campuses where proudly and aggressively enacting — rather than repealing — speech codes and other policies that inhibited student and faculty expression.
But, to corrupt an old saying, you can lead a horse to campus, but you can’t make him speak. The primary problem now on most public and even private campuses isn’t official sanction or state punishment for speech but rather peer shaming and peer humiliation. Students risk not so much expulsion as social backlash for their views. Make no mistake, social sanctions can be dreadful to endure, and many students choose silence over shame. But there’s an antidote to social sanction that doesn’t apply when universities can formally expel you for noncompliance — individual will.
A student or professor can choose to speak in spite of the blowback. They can choose to endure the slings and arrows of critics or scolds. They can train themselves to speak persuasively in the face of opposition. Free-speech rules can make speech possible, but they can never make it easy. The legal revolution is underway, but there is no substitute for simple courage, and courage goes a long way toward frustrating the peer censors of the culturally intolerant Left.
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