Monday, February 15th, 2016
By Eileen Klein
We've all read accounts of higher education institutions across the United States seeking to corral free speech on campus, to rein it in purportedly to protect students and promote community and civility. In some cases, students themselves have sought refuge from ideas, thoughts, expressions and teachings that cause them discomfort - ironically, from the very place one goes to become exposed to the largest collection of knowledge, scholarship, ideas and culture of humankind: the public university.
As universities around the country wordsmith new policies and share best practices in the name of redefining free speech, we're sticking to just one guide: the U.S. Constitution. Under the First Amendment, the United States offers some of the broadest legal protection for freedom of speech.
The Arizona Constitution also provides for extensive safeguard of speech rights. In Article 2, Section 6, "Freedom of speech and press," the Constitution states, "Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right."
We interpret this in the context of federal jurisprudence, which allows reasonable time, place and manner restrictions but our emphasis is on allowing speech.
At Arizona's public universities, free speech isn't relegated to a special campus location or zone: the entire campus is a free speech zone.
Just like our country.
That is not to say that anything goes in our university policies. We impose restrictions to limit interference with teaching and learning, including restrictions on amplification (close to classrooms or where other student services are provided, such as testing accommodations) and to protect physical safety (not crowding too many people in a small space with limited exits, not blocking walkways, passage by people with disabilities and allowing for movement of emergency vehicles).
We do not tolerate threats of harm, or disruption (shouting down a speaker), discrimination or harassment (directed at individuals) or speech intended to incite lawless action (that is both imminent and likely). And we impose some additional restrictions on purely commercial speech, such as credit card sales on campus. Penalties against violators are sought and enforced.
Having said that, there is no safe harbor from rudeness or incivility or sanctuary from expressions that make one uncomfortable, either in macro- or micro-fashion. We cannot impose any restrictions based on the content or viewpoint of the speech offered by an individual, no matter how unfortunate or misguided. In fact, personal expressive and political speech enjoys the greatest protections. We can't - and don't - stop individuals from handing out pamphlets or distributing literature, but it's perfectly fine for students to refuse them or simply say "no thanks" in response.
While other institutions have been busy banning movies and meanies, over the past year our regents and university presidents have met with faculty and students alike to promote campus dialogues that are inclusive of all thoughts and viewpoints. Importantly, we've also worked to welcome to our campuses students from every background. Today our universities enjoy record student diversity and benefit from the broad range of thoughts and beliefs that they bring to our campuses.
So where don't these First Amendment rights apply? At private universities. Given the continued blurring of private and public financing of higher education, it seems all schools benefitting from U.S. taxpayer dollars should be subject to the same responsibilities and privileges afforded under the U.S. Constitution.
On campus and off, free speech always needs to be safeguarded, so we welcome the public review and discussion with lawmakers like Representatives Paul Boyer and Anthony Kern who are rightly concerned about the continued protection of individual rights at institutions of higher education.
Protecting individual rights is serious business. But just as the U.S. Constitution doesn't need a comeback plan, free speech doesn't need a comeback plan at Arizona's public universities.
It's already there.