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Nonpartisan Group Introduces Legislation to Protect Free Speech on College Campuses

Conservative political commentator Ben Shapiro speaks at Zellerbach Hall on the UC Berkeley campus in Berkeley, Calif., on Thursday, September 14, 2017. Carlos Avila Gonzalez/The Chronicle
Conservative political commentator Ben Shapiro speaks at Zellerbach Hall on the UC Berkeley campus in Berkeley, Calif., on Thursday, September 14, 2017. Carlos Avila Gonzalez/The Chronicle

Following a recent study conducted by the Knight Foundation on college students’ dissatisfaction with the current state of free expression at colleges and universities growing exponentially, the American Legislative Exchange Council (ALEC) released several pieces of model legislation last week to protect American students' First Amendment rights.

According to reports, these new model legislation measures are available for state politicians to utilize in their legislatures. The latest model legislation comes as ALEC finalized its Free Speech in Higher Education Act last year, a piece of model legislation banning public universities or colleges from implementing "bias response teams."

According to the organization, bias reporting systems are the "formal or explicit processes for or solicitation of bias incidents from students, faculty, staff, or the community concerning 'offensive' or 'unwanted' speech, including satire or speech labeled as a 'microaggression,' regardless of whether such speech occurred on or off campus."

"For several years now, bias response teams (BRTs) have been used on college campuses in a manner that chills and sometimes even punishes protected speech," said Joe Cohn, Legislative & Policy Director of the Foundation for Individual Rights and Expression (FIRE).

"We agree with ALEC that it is appropriate for legislatures to address censorship resulting from BRTs, provided they do so thoughtfully, and note that the model bill's definition of bias reporting systems closely tracks FIRE's definition we set forth in our 2017 Bias Response Team Report," Cohn told The Foreign Desk.

Should the new model legislation be passed in state legislatures, it would prevent public colleges or universities from charging security fees for "the content of the student or student organization's expression," "the content of an invited guest's expression," or "the anticipated reaction to an invited guest's expression."

The newest ALEC model legislation builds on the previous "Forming Open and Robust University Minds (FORUM) Act," which eliminates "free speech zones," "protects the rights of all people to engage in lawful expression," protects students and student groups from disciplinary action because of their lawful expression, including belief-based organizations," requires "students to be educated regarding their free speech rights/responsibilities," and requires administrators and campus police to understand their duties regarding free expression on campus."

The FORUM Act also allows legislators to "hold universities accountable by requiring each institution to report on free speech issues before the legislature's appropriations process" and "allows alleged victims to bring a cause of action for violation of their free speech rights."

"We agree with the model bill's provision regarding security fees for speaking events. We have a similar provision in our model campus free speech bill, the Campus Free Expression Act (CAFE)," Cohn said.

He explained that while public institutions may charge security fees on content and viewpoint-neutral basis, including charging fees for events where alcohol is served, it is "unconstitutional for them to charge speakers security fees based on the anticipated reaction to the speakers."

In the past decade, the issue of free speech continues to plague academic institutions in America, with many left-leaning progressive students, student groups, and administrators opting in favor of banning speech that they deem "offensive." As a result, many Americans on college campuses say they are afraid to speak their minds in front of their peers and professors on issues related to abortion, LGBTQ issues, economics, and many other hot-button political issues.

In 2021, the Knight Foundation found 65% of college students in America felt that their campus climate was hostile to free speech. The study also found that students "believe colleges should allow them to be exposed to all types of speech, including political speech that is offensive or biased, rather than prohibiting speech they may find offensive."

Researchers found that students who considered themselves politically independent express concerns about the fundamental security of free speech in America today, highlighting the wariness of colleges limiting speech on campus. According to the survey, half of all independents felt that free speech is secure today, down from three out of four who felt this way in 2016.

The research found that Democrat students believe freedom of speech is secure in America today. Republican students, however, felt that freedom of speech is under threat, with a quarter believing it is firm today, down from two-thirds in 2016.

"If institutions could charge student organizations or speakers more to account for opposition to events, ideological adversaries would be able to drive the costs of holding those events up by threatening to protest," Cohn told The Foreign Desk."

According to Cohn and many others, legislatures should enact "language to prevent schools from using viewpoint-based security fees to price unpopular views out of the marketplace of ideas."

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