On April 25, Arizona Governor Doug Ducey signed into law a bill ensuring comprehensive protection for campus free speech at public universities in his state. The bill, expertly shepherded through the legislature by House Education Committee Chair Paul Boyer, is based on model campus free speech legislation published by Arizona’s Goldwater Institute. (I co-authored that model, along with Jim Manley and Jonathan Butcher.)
Whereas several campus free speech laws simply ban restrictive speech codes and so-called free speech zones, the new Arizona law goes significantly further. It affirms the principle that universities, at the official institutional level, ought to remain neutral on public policy controversies. It sets up a system designed to discipline students who engage in speaker shout-downs (while also strongly protecting the rights of the accused). It discourages the use of security fees as a backdoor censorship tactic. And it creates an oversight system based in the Board of Regents to ensure that administrators properly carry out these tasks.
While the First Amendment has long limited public universities to “time, place, and manner” restrictions on speech in a public forum, the Arizona law makes it more difficult for administrators to abuse that regulatory authority. Schools will only be permitted to impose time, place, and manner restrictions on speech if they are “necessary to achieve a compelling governmental interest” and are “the least restrictive means” for doing so. Arguably, no other state has set the bar for permissible time, place, and manner restrictions on speech so high.
Arizona and North Carolina have now passed campus free speech laws based on the Goldwater model. The Georgia legislature passed a Goldwater-based bill last month that awaits the governor’s signature. And the Wisconsin Board of Regents has adopted a discipline policy for shout-downs based on the Goldwater model. Goldwater-based bills have been introduced in several other states as well
Since the emergence of the campus free speech crisis in about 2014-15, we’ve seen an unprecedented wave of state-level legislation designed to secure free expression at public universities. As noted, some of those laws are limited to abolishing speech codes and zones, while others push for more comprehensive protection. Only Goldwater-based bills systematically address the shout-down issue at the core today’s campus free speech crisis.
This means that even when states pass less ambitious bills, more comprehensive legislation is always possible down the road. Arizona helped kick off the current wave of campus free speech legislation by abolishing so-called free speech zones in 2016. The fact Arizona has come back two years later and addressed the problem of shout-downs sets a pattern for what is likely to be years of legislative work nationally.
Far from declining after drawing national condemnation last academic year, shout-downs appear to have been normalized among a militant plurality of students. The prevalence of speaker disruptions this academic year is up, not down. For as long as shout-downs continue to spread, expect the Goldwater model campus free speech bill to remain a live legislative option.