State law aims to broaden free speech protections for college students

David Floyd • Jun 17, 2017 at 2:29 PM

The state of free speech at East Tennessee State University and college campuses across Tennessee will be in for some changes when a new state law goes into effect on Jan. 1.

ETSU will redraft some of its university policies after the passage of the Campus Free Speech Protection Act, which reinforces First Amendment protections for students, student organizations and faculty members while also potentially increasing access to campus by third-party speakers — people who are not affiliated with the university — who are invited to campus by students or student organizations. 

The law prevents universities from charging students and student organizations higher fees for security based on the speaker and disinviting speakers who have been invited by a student, student organization or faculty member because people consider them “offensive, immoral, indecent, disagreeable, conservative, liberal, traditional, radical or wrong-headed.” 

According to the New York Times, conservative firebrand Ann Coulter canceled a planned speech in April at the University of California, Berkeley after she lost the support of the Young America’s Foundation, a conservative group that sponsored her appearance. The university previously canceled her scheduled appearance citing security risks, but before eventually canceling herself, Coulter had said she still intended to speak. Berkeley previously canceled a speech by Milo Yiannopoulos in February after violent protests.

The law attempts to ensure universities remain “marketplaces of ideas,” where unpopular ideas are not suppressed and are instead discussed in an open way. The law says students cannot be restricted to certain areas designated for free speech by the university, oftentimes called free speech zones.

“It is important that we ensure that students on our university campuses are free to engage in serious discussions without fear of reprisal,” said Johnson City Sen. Rusty Crowe, who co-sponsored the bill, in an email on Friday. “This bill pursues that crucial balance between liberal and conservative speech and honors our very important constitutional rights and freedoms that actions not be taken to suppress or seek retributions with regard to free speech.”

Up to this point, unaffiliated speakers such as pastors could sign up for time in one of ETSU’s designated free speech zones, like Borchuck Plaza and the amphitheater outside the D.P. Culp University Center.

Starting Jan. 1, if they are invited to campus by a student or student organization, third party speakers will have more access to campus. 

"(The law) says ... the outdoor open spaces of campus are to be treated as traditional public forums," said Troy Perdue, deputy university counsel at ETSU. Traditional public forums are places like streets, sidewalks or parks that have historically been platforms for free expressions.

"So at least for students and student affiliated groups and other members, like faculty, of the institutional community, the entire campus is to be treated like those areas. So, to the extent a student or student group or faculty member invites a third party to come speak in those spaces … then the institution cannot restrict those speakers except in very limited ways — time, place, and manner restrictions."

Time, place and manner restrictions are content-neutral restrictions on free expression. For example, Perdue said the university could place a limit on a speaker who comes to campus with an air horn during the middle of the night. 

Perdue said the university does not know what changes could be made to the university policy governing where uninvited third party speakers can demonstrate — if any changes are made at all.

“I would certainly say that no speakers — third party or members of the campus community — will have less protection for their speech,” Perdue said. “The university is fully committed to protecting all constitutional speech and speech protected by the new state law.”

There are still details of the law, however, that officials at ETSU are interpreting. “At this point, we simply do not know how the implementation of the new law will function on campus as a practical matter,” Perdue said.

In the past, unaffiliated speakers like the Center for Bio-Ethical Reform, a group that has put up large, graphic images of aborted fetuses in Borchuck Plaza, have stirred debate among members of the ETSU community. Students are, however, sometimes the source of controversial speech.

In September 2016, ETSU freshman Tristan Rettke dressed up in a gorilla mask and overalls and confronted students who were conducting a Black Lives Matter rally in Borchuck Plaza. He dangled bananas in front of their faces from a rope and held up a sign that said “Lives Matter.” Rettke was arrested by campus police and charged with civil rights intimidation. He is no longer enrolled at ETSU. 

The law affirms that universities should give students “the broadest possible latitude to speak, write, listen, challenge, learn, and discuss any issue,” but it does say universities should adopt a policy on student-on-student harassment, which is defined in the law as “unwelcome conduct directed toward a person that is discriminatory on a basis prohibited by federal, state or local law, and that is so severe, pervasive and objectively offensive that it effectively bars the victims access to an educational opportunity or benefit.”

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