Civil liberties advocates wary of campus free speech bill under consideration by UNC Board of Governors

As the UNC Board of Governors moves toward creation of a policy to “restore and preserve free speech” on public campuses, civil liberties advocates are worried it may have the exact opposite effect.

“We worry about things that are overly broad, vague and open to interpretation,” said Susanna Birdsong, policy counsel for the American Civil Liberties Union of North Carolina.

The concern stems from a working draft of the policy discussed earlier this month at a board subcommittee meeting. The work-in-progress policy is the result of a bill, which initially stalled in the House before changes allowed it to become law in July.

The bill calls for the creation of a uniform system for punishing any student, faculty or staff member who “substantially disrupts the functioning of the constituent institution or substantially interferes with the protected free expression rights of others, including protests and demonstrations that infringe upon the rights of others to engage in and listen to expressive activity when the expressive activity has been scheduled pursuant to this policy or is located in a nonpublic forum.”

“As it is written right now, anything that is interpreted as a ‘substantial and material disruption’ could be a violation,” Birdsong said. “That interpretation can be very different if you’re a protester, a university official or a law enforcement official.”

The bill is part of a wave of such bills in reaction to protests and violence on campuses like the University of California at Berkeley and The University of Virginia. The movement has been largely driven by conservative lawmakers in reaction to protests against conservative speakers and organizations demonstrating on campuses.

And that, Birdsong said, is where interpretation becomes dangerous.

“Let’s say there’s an event that is indoors and there are counter-protesters outside,” Birdsong said. “They’re not blocking people from entering the space – but their protest can be heard as the speech is going on indoors. As this is written right now, that could be a violation – a substantial and material disruption. And that’s not constitutionally sound. This policy could go outside the bounds of what is constitutionally permissible.”

UNC Board of Governors member William Webb, a former judge from the U.S. District Court for the Eastern District of North Carolina, has stressed that he wants to protect dissenting speech – but deal firmly with speech he said keeps others from exercising their right to expression.

“You can’t assert your free expression rights as a shield – or a sword – against others’ rights,” Webb said in a subcommittee meeting on the policy earlier this month.

Webb suggested following the lead of the University of Wisconsin, where students found to have engaged in violence or other disorderly conduct disrupting others’ free speech would be suspended after two incidents. A third offense would lead to expulsion.

The committee members were less clear on how to deal with faculty, but said they would like to see presidents and chancellors take the offenses seriously and use a “full range of options” for disciplining them.

UNC Board of Governors Governance Committee Chairman Steve Long said he’s been frustrated with the results of campus administrators deciding for themselves how to handle disruptive speech.

“College presidents have not been very good about ensuring anybody sees discipline,” Chairman Steven Long said. “We have one UNC professor who has done it three times and nothing’s ever happened to them.”

Ironically, the Foundation for Individual Rights in Education (FIRE), a non-profit that has supported free speech bills for public campuses, gave UNC-Chapel Hill a “Green Light” its highest rating for protecting speech rights. This year UNC-Greensboro and ECU also earned green lights, according to FIRE.

The bill passed by the North Carolina General Assembly deals with punishing disruptive speech but does nothing to address other items FIRE considers threats to free speech – such as the formation of “free speech zones” that constrain where on campus students can demonstrate.

A number of faculty members say they’re concerned about the chilling effect a broad-ranging policy designed to punish certain types of protest but which essentially ignores more substantive threats to free speech.

“What I would call ‘free speech absolutism’ is a red herring in this case,’ said Michael Palm, an associate professor of Communications at UNC-Chapel Hill.

Palm pointed to instances wherein the UNC Board of Governors have been happy to punish programs, campuses and faculty for expression with which they disagree.

They include the board barring the UNC Chapel Hill School of Law’s Center for Civil Rights from litigating, closing the UNC Center for Work and Poverty and targeting other centers and programs whose whose work bothers the political sensibilities of the board’s conservative majority.

More recently Mark Dorosin, managing attorney for the Center for Civil Rights and frequent critic of the board, was fired. No reason was given in a letter informing Dorosin his at-will employment had been ended, but Long – the chairman of the board’s governance committee – wasted no time in disparaging Dorosin in an interview with the conservative Carolina Journal shortly thereafter.

“He is a political hack who has abused university resources for years to further his liberal political agenda and not education,” Long said to the Carolina Journal. “He is an intolerant partisan who demeans people who have honest disagreements with him on policy.”

With that sort of naked political aggression and score-keeping, numerous faculty members said, it’s clear the Board of Governors intends to protect free speech very selectively and to single out for retribution those who express positions with which they disagree.

“When you see these kinds of things happening, there is a good chance of a chilling effect,” Palm said.

Birdsong said that can often be the unfortunate consequence of such policies.

“It’s ironic that when we’re talking about a bill to preserve and protect free speech…what is potentially happening is that there can be a chilling effect on speech,” Birdsong said. “Students and faculty will no longer feel safe expressing themselves.”

The ACLU will continue watching to see how the final policy comes together, Birdsong said.

The board’s full committee on University Governance will meet Wednesday at 2 p.m. in the Executive Conference Room of the Spangler Building. No agenda has been made publicly available ahead of the meeting, but the committee will weigh in on the speech policy’s language before the full meeting of the board early next month.