How not to protect free speech

The free expression of ideas is a bedrock principle for any democratic society. And that is particularly true on college campuses, where many young people are still developing their core beliefs. Students need the freedom to explore new ideas, challenge opinions they disagree with, and change their minds.  

Many conservatives believe that higher education in America is indoctrinating students with progressive views, shielding them from controversial viewpoints, and discouraging free speech. If that is true, it would be a problem. But what is the solution?

In Florida, lawmakers are advancing legislation (HB 233) to "solve" the alleged lack of "intellectual freedom and viewpoint diversity" at the state's public universities. Many of the policy measures in the bill, however, are dystopian and would likely chill free speech on campus. 

The bill "would require public colleges and universities to survey students, faculty and staff about their beliefs and viewpoints," the Tampa Bay Times reports. But it "offers no assurances that the survey’s answers will be anonymous, and there is no clarity on who will use the data and for what purpose." 

As a result, critics believe the survey could be abused. "Don’t you think it is dangerous for us to have all the data on personal opinions of university faculty and students?" Florida Senator Lori Berman (D) asked. Specifically, the data could be used as a tool for Florida's Republican-controlled legislature to "meddle in, monitor and regulate speech on campus" — rewarding institutions that promote their favored viewpoints and punishing those with less politically popular views. Florida Representative Spencer Roach (R), one of the bill's sponsors, said the survey data could be used "as the basis to make policy decisions."

"I see the potential for the climate survey to be used to withhold appropriations from public universities that in the legislator's opinion do not promote a marketplace of ideas,” Clay Calvert, a law professor at the University of Florida, told Popular Information. Calvert believes that institutions where professors have a perceived "liberal bias" will be targeted.

The legislation was drafted with a certain outcome in mind. Another of the bill's sponsors, Florida Senator Ray Rodrigues (R) says "students have told him they fear being ostracized for expressing conservatives views on campus." The purpose of the survey is to "ascertain" why conservative students feel that way. 

Lobbyist Barney Bishop, who is advocating for the bill on behalf of undisclosed clients, said "the cards are stacked in the education system...toward the left and toward the liberal ideology and also secularism — and those were not the values that our country was founded on." The purpose of the bill is to "get our country back" to conservative values.

The survey would be designed by the Florida State Board of Education, which is populated with political appointees of Florida Governor Ron DeSantis (R) that have an ideological agenda. The current chair of the Board, Andy Tuck, opposes the teaching of evolution as a fact. "I strongly oppose any study of evolution as fact at all. I’m purely in favor of it staying a theory and only a theory," Tuck said in 2008. Asked about his statements in 2019, Tuck did not indicate his views had changed. 

Campus free speech advocates oppose Florida bill

As originally drafted, the Florida bill would have allowed students to record class lectures for any purpose. The current version allows recording without a professor’s consent for a student's "personal educational use, in connection with a complaint to the public institution of higher education where the recording was made, or as evidence in, or in preparation for, a criminal or civil proceeding." Although public postings of these recordings would be prohibited, the only recourse that professors would have is to sue the student who posted the video. 

The Foundation for Individual Rights in Education (FIRE), an organization dedicated to defending free speech on campus, opposes the bill, specifically citing the recording provision. "[T]he consequences of giving a statutory green light to recordings and litigation around [classroom recordings] is fraught with the potential to wreak havoc with classroom instruction, chilling faculty and student speech," FIRE argues.

FIRE says that the provision of the bill that allows the videos to be used "in connection with a complaint to the public institution of higher education where the recording was made," opens the possibility that students and faculty of all political persuasions could be reported to administrators for expressing unpopular views. 

Public universities as public forums

Under the bill, universities and colleges would be prohibited from “shielding students, faculty, or staff from certain speech.” The sponsors of the bill go on to clarify that to “shield” means “to limit...access to, or observation of, ideas and opinions that they may find uncomfortable, unwelcome, disagreeable, or offensive.” This provision stems from the false perception that controversial speakers are discriminated against on public campuses and need speech protections.

But under the First Amendment, public colleges and universities cannot restrict campus speech. Unlike a private institution, which can choose to exclude certain speakers, public colleges and universities have little leeway. These entities, viewed as “public forums,” have virtually no ability to restrict speech regardless of the content. 

The University of Florida, where Calvert teaches, has hosted numerous controversial speakers. In 2017, amid outrage, the University hosted white nationalist leader Richard Spencer. This was just a few months after Spencer was implicated for his participation in the “Unite The Right” rally in Charlottesville. In 2019, the University drew intense scrutiny after Donald Trump Jr. and Kimberly Guilfoyle spoke at the university. In both instances, the University did not discriminate against the speakers.

“The University of Florida already must comply with the terms of the first amendment because we are a state university. When it comes to controversial speakers, it has proved itself,” Calvert told Popular Information. “So, you have to ask yourself: why do we even need [HB 233]? Why adopt this?”

The Colorado experience

In 2014, the University of Colorado commissioned a study of "ideological diversity" at the institution's four campuses. The study found that "9 percent of faculty members and 17 percent of students report Republican Party affiliation, compared to 42 percent of professors and 29 percent of students who identify as Democrats." But nearly all students (96%) believed that "their instructors promote respectful classroom environments."

Nevertheless, the University "created a visiting scholar program that brought decidedly conservative thought leaders to campus for stints." While some of the right-wing professors have proven popular, the program has run into issues. In January, the University of Colorado stripped visiting conservative scholar John Eastman of his public duties after Eastman spread "conspiracy theories about voter fraud at the Trump rally in Washington, D.C., that preceded the storming of the U.S. Capitol." Chancellor Phil DiStefano called Eastman's behavior "repugnant" but did not fire him. Eastman's contract expires in May.