News: CJ Exclusives

Federal campus free-speech bill bears resemblance to N.C.’s state protections

Measure sponsored by Utah Sen. Hatch would protect students' free-expression rights and expand ability to sue when schools suppress freedom

Lt. Gov. Dan Forest. (CJ file photo)
Lt. Gov. Dan Forest. (CJ file photo)

RALEIGH — Campus free speech — a major topic of conversation in North Carolina — has federal lawmakers talking.

On Feb. 7, U.S. Sen. Orrin Hatch, R-Utah, introduced a bill requiring public universities to dissolve free speech zones and ditch policies that squelch the First Amendment. The bill would reinforce and strengthen students’ ability to file speech violation lawsuits in federal court.

“Students on campus should know that any regulation of speech remains content-neutral, apolitical, and narrowly tailored. They should be able to trust that their campuses will foster free speech, not stifle it,” Hatch said in a press release.

The Free Right to Expression in Education Act is a “take notice” signal to universities with questionable or oppressive speech rules, said Joe Cohn, legislative and policy director at the Foundation for Individual Rights in Education. FIRE, a policy and advocacy nonprofit, specializes in defending First Amendment rights at public universities.

Hatch’s bill is loosely designed around model legislation created by FIRE. North Carolina passed a similar free speech law in 2017, reinforcing First Amendment rights across the University of North Carolina’s 17 campuses.

Initial drafts of N.C. House Bill 527, Restore/Preserve Campus Free Speech, included a cause of action to file lawsuits in state courts. UNC leaders persuaded legislators to cut that portion of the law. If passed, the cause of action would have led to unproductive, costly court battles, said Tom Shanahan, UNC’s general counsel.

The university was making a classic argument to scare off legislators, Cohn said.

“[UNC leaders] were not forthright with the N.C. legislators that a cause of action already existed in federal court. They were kind of making a ‘chicken little, sky will fall’ argument,” Cohn said.

Hatch’s FREE Act, while not applicable to state courts, is a statutory reinforcement for First Amendment lawsuits.

Ultimately, the bill is designed to incentivize respect for the First Amendment, and to protect speech for all, including those with conservative opinions, Cohn said.

“The hope is that most schools will just see that Congress has told them to ‘knock it off,’ and do just that.”

The effort should get approval from Democrats and Republicans, he said.

“This is the kind of thing that should not get a lot of opposition, but it’s a little too early to say at this stage. In several states, similar bills have passed with almost unanimous support.”

Virginia, Missouri, Arizona, Colorado, and Utah hold laws similar to the FREE Act. A controversial religious freedom law in Kentucky includes one free speech provision. Tennessee and North Carolina passed broader campus speech bills last year.

H.B. 527 law received split support down party lines. N.C. Lt. Gov. Dan Forest — a Republican and the main backer of the project — called the law a sign “the marketplace of ideas is back open on campus” in North Carolina.

Democrats called the bill “a solution in search of a problem.” The legislation became law without Gov. Roy Cooper’s signature.  

Partisan conflicts may arise on Capitol Hill, but it’s more likely the FREE Act will remain captive to other priorities. At the very least, Hatch’s bill shows federal lawmakers are paying attention, Cohn concluded.

Policies that undercut free speech or discriminate against specific viewpoints are unacceptable, said Daniel Keylin, a spokesman for North Carolina U.S. Sen. Thom Tillis. Tillis hasn’t fully reviewed the bill, but is a strong supporter of First Amendment rights, he added.

U.S. Sen. Richard Burr’s office did not respond to a request for comment.

Sooner rather than later, Congress will take steps to protect free speech, Cohn said.

“The passage of this bill would be a fantastic move in that direction.”