Public Universities and the First Amendment: Controversial Speakers, Protests, and Free Speech Policies

PUBLIC UNIVERSITIES AND THE FIRST AMENDMENT: CONTROVERSIAL SPEAKERS, PROTESTS, AND FREE SPEECH POLICIES ERIC T. KASPER * I. I NTRODUCTION In recent years, several high-profile cases of controversial speakers at public colleges and universities 1 have resulted in protests of those speakers. For example, at the University of Wisconsin-Madison, student protestors in November 2016 took to the front of a classroom and began chanting, temporarily halting a scheduled speech by Daily Wire founder, and former Breitbart News editor, Ben Shapiro. 2 Similar disruptions occurred in 2018 at multiple events where speakers were invited to campuses by student chapters of the Federalist Society, including speeches by John Blackman at the City University of New York and Christina Hoff Sommers at Lewis and Clark College. 3 In some cases, the protests have turned violent, such as the now famous case of protestors at the University of California-Berkeley lighting fires, tossing Molotov cocktails, and throwing fireworks at police officers in response to a speech planned by former Breitbart News editor Milo Yiannopoulos in February 2017. 4 Similarly, some Copyright © 2019, Eric T. Kasper. * Associate Professor of Political Science and Director of the Center for Constitutional Studies, University of Wisconsin-Eau Claire; Municipal Judge, City of Rice Lake, Wisconsin; J.D., University of Wisconsin Law School, 2007; Ph.D., University of Wisconsin-Madison, 2007. 1 Hereafter, this article will frequently refer to “public universities,” but those remarks will generally apply to any public institutions of higher education, including public community colleges. 2 Pat Schneider, Fighting Words: The Campus Free Speech Battle at UW Often Focuses on Guest Speakers , CAP. TIMES (Apr. 5, 2017), http://host.madison.com/ct/news/local/ education/university/fighting-words-the-campus-free-speech-battle-at-uw-often/article_ 31f 9abea-78d3-5211-b41c-7ba535a87abf.html [https://perma.cc/6NH5-FWVH]. 3 See Scott Jaschik, Guest Lecture on Free Speech at CUNY Law School Heckled , INSIDE HIGHER ED (Apr. 16, 2018, 3:00 AM), https://www.insidehighered.com/ news/2018/04/16/guest-lecture-free-speech-cuny-law-school-heckled [https://perma.cc/4H9 7-FVCB]; Scott Jaschik, Students Interrupt Several Portions of Speech by Christina Hoff Sommers , INSIDE HIGHER ED (Mar. 6, 2018, 3:00 AM), https:/www.inside highered.com/ne ws/2018/03/06/students-interrupt-several-portions-speech-christina-hoff-so mmers [https://p erma.cc/KQ3P-T7NQ]. 4 Anonymous, Violent Protests by Visiting Mob Lead Berkeley to Cancel Speech by Milo Yiannopoulos , INSIDE HIGHER ED (Feb. 2, 2017, 1:13 AM), https://www.insidehigher ( continued ) 530 CAPITAL UNIVERSITY LAW REVIEW [47:529 demonstrators caused injuries when protests turned violent at the conclusion of The Bell Curve author Charles Murray’s speech at Middlebury College in March 2017. 5 Although it did not involve violence, student protestors disrupted a planned talk by Blackwater security company founder Erik Prince at Beloit College in March 2019 with the use of a drumline and by piling chairs on the stage; this led to the college cancelling the lecture. 6 In still other cases, planned or expected protests resulted in the controversial speakers being disinvited. This includes the University of California-Davis disinviting both Yiannopoulos and former Turing Pharmaceuticals CEO Martin Shkreli in early 2017, 7 as well as the University of Central Oklahoma cancelling the speech of Creation Museum founder Ken Ham in February 2018. 8 A speech scheduled for conservative commentator and author Ann Coulter was cancelled at the University of California-Berkeley in April 2017, although it is not entirely clear if Coulter or the university cancelled the event. 9 Finally, some speakers have contemplated voluntarily withdrawing from their planned speeches, such as when white nationalist Richard Spencer considered ending his speaking tour of college campuses in the spring of 2018, partly in response to the significant protesting that accompanied his events. 10 There is little evidence that these examples are representative of the behavior of university students generally at public speeches and similar ed.com/news/2017/02/02/violent-protests-visiting-mob-lead-berkeley-cancel-speech-miloyiannopoulos [https://perma.cc/2BA6-DRLZ]. 5 Stephanie Saul, Dozens of Middlebury Students Are Disciplined for Charles Murray Protest , N.Y. TIMES (May 24, 2017), https://www.nytimes.com/2017/05/24/us/middlebury-college-charles-murray-bell-curve.html [https://perma.cc/LP8E-MQGF]. 6 Jeremy Bauer-Wolf, Another Speaker Shut Down , INSIDE HIGHER ED (Mar. 29, 2019), https://www.insidehighered.com/news/2019/03/29/beloit-cancels-erik-prince-talk-after-stud ent-protests [https://perma.cc/3XBE-ECBV]. 7 Jeremy Bauer-Wolf, College Administrators: No Easy Answers for Controversial Speakers , INSIDE HIGHER ED (Nov. 14, 2017, 3:00 AM), https://www.insidehighered.com/ news/2017/11/14/college-administrators-no-easy-answers-controversial-speakers [https://pe rma.cc/BH3F-H4U7]. 8 Adam Kealoha Causey, Creationist’s Speech Canceled at University in Oklahoma , FOX NEWS (Feb. 8, 2018), http://www.foxnews.com/us/2018/02/08/creationists-speechcanceled-at-university-in-oklahoma.html [https://perma.cc/KB8S-CE3E]. 9 Merrit Kennedy, After Back-And-Forth, Ann Coulter Speech Is Off at UC Berkeley , NPR (Apr. 26, 2017, 4:44 PM), https://www.npr.org/sections/thetwo-way/2017/ 04/26/525745159/after-back-and-forth-ann-coulter-speech-is-off-at-uc-berkeley [https:/per ma.cc/9GMD-C3ME]. 10 Ryan Lenz, Richard Spencer Cancels Speaking Tour of College Campuses After Speech in Michigan , S. POVERTY L. CTR. (Mar. 12, 2018), https://www.splcenter.org/ hatewatch/2018/03/12/richard-spencer-cancels-speaking-tour-college-campuses-after-speec h-michigan [https://perma.cc/ZE4T-TSXK]. 2019] PUBLIC UNIVERSITIES AND THE FIRST AMENDMENT 531 events. 11 Nevertheless, they are instances where speakers have been prevented (or claim to have been prevented) from expressing their ideas to some degree in particular public venues. Remedies to these campus incidents have occurred in various forms. In some cases where planned speeches were disrupted, individual universities have conducted investigations or punished offending students. 12 At the national level, President Donald Trump issued an executive order in 2019 that directed U.S. government agencies to ensure that universities receiving federal funding are protecting “free inquiry” on their campuses. 13 In what may ultimately prove to be the most far-reaching response to these types of cases, in 2017 the Goldwater Institute produced model state legislation titled the “Campus Free Speech Act.” 14 According to the drafters of the model policy, the asserted purposes of the Campus Free Speech Act are to, among other things, promote the creation of university policies supportive of the freedom of expression, prevent campus administrators from disinviting controversial speakers, propose potential sanctions for students who harm the free speech rights of others, and ensure that students will be informed of official policy on the freedom of expression. 15 As will be explored below, the model legislation goes beyond the issue of controversial invited speakers to dictate governmental action as it relates to other First Amendment concerns, such as the creation of “free speech zones” and student organizational recognition. 16 Several states have already enacted a derivation of the Campus Free Speech Act, or a comparable law with the asserted goal of protecting the freedom of 11 See Mari Uyehara, The Free Speech Grifters , GQ (Mar. 19, 2018), https://www.gq.com/story/free-speech-grifting [https://perma.cc/3RKH-UXQW]; Kelly Wilz, The Myth Of The Liberal Campus , HUFFPOST (Feb. 27, 2017), https://www. huffpost.com/entry/the-myth-of-the-liberal-campus_b_58b1bc00e4b02f3f81e44812 [https:// perma.cc/KEX3-Z3H8]. 12 See Bauer-Wolf, supra note 6; Nell Gluckman, Middlebury Punishes 67 Students for Charles Murray Protest , CHRONICLE OF HIGHER EDUCATION (May 23, 2017), https://www. chronicle.com/blogs/ticker/middlebury-punishes-67-students-for-charles-murray-protest/11 8607 [https://perma.cc/SVJ6-VR95]. 13 Maggie Haberman & Michael D. Shear, Trump Signs Executive Order Protecting Free Speech on College Campuses , N.Y. TIMES (Mar. 21, 2019), https://www.nytimes.com/ 2019/03/21/us/politics/trump-free-speech-executive-order.html [https://perma.cc/72XZ-5N VF] 14 See Campus Free Speech Act , GOLDWATER INST. (2017), https://drive.google.com/ file/d/1wUs1BV7EVS4rbG-3UBFxsm5ZSlRIFa36/view [https://perma.cc/ZZ3J-32JF]. 15 See Stanley Kurtz et al., Campus Free Speech: A Legislative Proposal, GOLDWATER INST. 3 (2017), https://drive.google.com/file/d/1BKyHPKHS_xVg3hGxqjhNIpRVQqoV 6Xyg/view [https://perma.cc/4UTW-NVMJ]. 16 Id. at 3, 6, 10, 12. 532 CAPITAL UNIVERSITY LAW REVIEW [47:529 expression at public institutions of higher education. Measures like this have been passed by state legislatures and signed into law in Arizona, Arkansas, Colorado, Florida, Georgia, Iowa, Kentucky, Louisiana, North Carolina, South Dakota, Tennessee, Utah, and Virginia. 17 In other states, public universities have created campus rules based on the model legislation. For instance, in Wisconsin, the university system’s Board of Regents established a free speech policy after a version of the model legislation was introduced in the state legislature, 18 and the University of North Carolina Board of Governors adopted a free speech policy after the state legislature passed a campus free speech act. 19 Does the Campus Free Speech Act work to promote the freedom of expression at public universities? Put another way, would the adoption of the Act by a state government infringe on free speech rights in addition to protecting them? More to the point, if a state––either through its legislature or by university policy––were to enact the model legislation...