The Akron Legal News

Bill that seeks to bolster free speech at public universities advances

KEITH ARNOLD
Special to the Legal News
Published: November 2, 2017

Just days after the Ohio State University declined allowing white nationalist and provocateur Richard Spencer to book a speaking engagement on campus, a pair of Republican lawmakers in the Ohio House of Representatives offered testimony in support of their Campus Free Speech Act.

"This common-sense legislation is based on a simple premise: That the laws, policies and conduct of Ohio's public universities be fully consistent with the First Amendment," Rep. Wes Goodman of Cardington told members of the Higher Education and Workforce Development Committee last week. "College is a transformative time for Ohio's young people as they learn and grow into the next generation of Ohio leaders and citizens.

"A free and open exchange of speech and ideas is critical to ensuring that our students have the most meaningful and impactful education experience in a way that prepares them to be active and engaged citizens in our Republic."

Filed as House Bill 363, the legislation would generally prohibit a state institution of higher education from taking any action or enforcing any policy that limits or restricts the free expression rights of its students, student groups, faculty, staff, employees, and invited guests in public areas of campus.

It also would prohibit a public college or university or its administrators from taking any official action to limit or chill expression on the basis of the expression's content.

HB 363 also would put an end to the practice of public institutions disallowing such events on the basis that there may be protests or violence if the event is allowed to proceed.

Rep. Andrew Brenner of Powell - joint sponsor of the measure - called the practice "heckler's vetoes."

"Our nation has seen this happen often at places like the University of Missouri and University of California-Berkeley," Brenner said. "We have been fortunate in Ohio on this point to where such incidents have not been as severe.

"With our current political climate, I don't believe that it will continue to be that way and, therefore, HB 363 will provide guidance to a university when confronted with such a situation."

Goodman cited a 2016 Gallup poll found that found roughly two-thirds of college students support restrictions on "intentionally offensive" language.

The same poll found that 27 percent of the respondents support restricting expression of political views "that are upsetting or offensive to certain groups," he added.

"As lawmakers, we must do what we can to stem this tide and protect this fundamental right in our constitution," Goodman said.

The lawmakers believe that today's college students have arrived at these conclusions through a combination of political polarization and poor civics education.

"By exposing students to ideas they dislike and stressing the broad natural rights found in our constitution, we can help our best and brightest once again embrace the civil society that makes our country special," Goodman reckoned.

There are exceptions, however.

Under the bill, a state institution may prohibit, limit, or restrict expression that is subject to limited or diminished protection under the U.S. Constitution, the Ohio Constitution, or both, if the expression has been given a specific classification by the U.S. Supreme Court, the Ohio Supreme Court, or both. Classifications include:

• Unprotected defamation;

• Severe and pervasive illegal harassment;

• Expression of a serious intent to commit an act of unlawful violence against a particular individual or group that constitutes a true threat;

• Unjustifiable invasion of privacy or confidentiality not involving a matter of public concern;

• Commercial speech; and

• Employee speech that is either in violation of the code of employee conduct or otherwise subject to the contractual authority of the institution or its employees.

"The goal is free speech," Brenner concluded. "Our colleges and universities should be places where students have their views challenged again and again.

"Insulating and indoctrinating them with only a certain viewpoint does not help them once they reach the 'real world.' This will only keep them closed minded to a multitude of cultures, ideologies, and beliefs that make up our state, our country, and our planet."

HB 363 has cosponsorship support of 31 House members.

The bill had not been scheduled a second hearing as of publication.

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