Versions of the Goldwater Institute’s model campus free-speech bill have become law in North Carolina, policy in Wisconsin, and are currently being considered by legislatures in several other states. As the movement to adopt the Goldwater campus free-speech proposal has grown, I’ve explained the goals of the bill and replied to various criticisms. (I co-authored the model, along with Jim Manley and Jonathan Butcher of the Goldwater Institute.) Since it’s tough for opponents of the Goldwater proposal to object to an approach based on classic defenses of campus free-speech, critics often resort to mischaracterization.
Now, however, Joan W. Scott, a senior historian, has put forward the most egregious misrepresentation of the Goldwater proposal I’ve yet seen. In a Chronicle of Higher Education piece called “How the Right Weaponized Free speech” (behind a paywall), Scott claims that “the Goldwater Institute’s model legislation…calls on professors to present both sides of an issue in the classroom…Professors, in this view, have the right to regulate speech, provided that they do so in a ‘viewpoint- and content-neutral’ manner. In effect, students are allowed to say anything they want, removing intellectual authority from the professor.”
This is a complete misrepresentation of what the Goldwater model does. Nothing in the model dictates how professors must conduct their classes; instead, the bill explicitly allows faculty to freely speak their minds (see the beginning of Section 1(K), as well as the beginning of 1(C)). Scott has seriously misread the language of the bill.
Scott is referring to Section 1(C) of the model bill. In truth, that section explicitly ensures that students and faculty are protected by the First Amendment.
What’s confused Scott is language related to the “time, place, and manner” of expression. First Amendment law recognizes the ability of public universities to regulate, within limits, the time, place, and manner of expression on campus. If, for example, loud demonstrations with megaphones and mass chanting would disrupt classrooms immediately nearby, a university is permitted to create a rule putting that small section of campus off-limits to demonstrations during classroom hours.
What Section 1 (C) of the Goldwater model actually does is to ensure that colleges don’t abuse their legally-recognized authority to regulate the time, place, and manner of expression. The Goldwater model insists that when colleges create time, place, and manner restrictions on campus demonstrations, those restrictions must be “viewpoint- and content-neutral.” In other words, you can’t claim that an area next to classrooms is off-limits to demonstrations by conservative groups, and then turn around and allow a liberal group to demonstrate on the same spot. If you’ve got a rule putting certain areas off-limits for demonstrations at certain times, that rule has to be applied to everyone, neutrally, without regard to the topic or their viewpoint.
On top of that, the Goldwater model imposes the highest possible legal standard on time, place, and manner restrictions. Such restrictions can only be imposed if a university can show they are necessary to achieve a “compelling institutional interest.” The restrictions must also be “clear and published,” and must “provide ample alternative means of expression.”
The language Scott is railing against has nothing to do with forcing professors “to present both sides of an issue in the classroom.” The Goldwater model doesn’t restrict or dictate what professors say in the classroom at all. The language Scott is referring to is actually designed to make sure that universities don’t abuse their legally-recognized authority to regulate the time, place, and manner of public demonstrations in such a way as to silence speech.
An earlier version of Scott’s essay, published by the American Association of University Professors, claimed that “the Goldwater Institute’s model legislation…has been taken up in Tennessee.” Actually, as I’ve explained previously, Tennessee’s campus free-speech law takes very little from the Goldwater proposal.
This is important because, unlike the Goldwater model, the Tennessee bill does include a section that deals with faculty conduct in the classroom. Perhaps Scott has confused the Goldwater model with the Tennessee bill, although I’m not sure that her attack properly addresses the substance of what even the Tennessee bill calls for. In any case, Scott’s claims about the Goldwater Institute’s model campus free-speech bill are entirely false. The Goldwater model in no way dictates the conduct of teachers in the classroom.
Not only has Scott dramatically misread the language of the Goldwater bill, she seems not to have read the white paper the Goldwater Institute released last year explaining the various provisions of the bill. If she had, she would have seen nothing about controlling the way professors teach.
While Scott makes much in her Chronicle piece of the unique quality of academic thought, based as it is on careful research within the guidelines of professional disciplines, she has missed the mark here. Her mischaracterization of the Goldwater model campus free-speech bill is the product of poor reading, poor research, and to all appearances, of undisciplined animus as well.