Maybe you went to a candidate rally on a Colorado university campus this campaign season and spotted a sign with an arrow directing you to a designated “free speech area.”
As of the fall semester, on Colorado’s public university campuses, those areas roping off the First Amendment will be no more.
Colorado’s Democratic governor, John Hickenlooper, just signed a bipartisan law granting free speech rights across all campuses— not restricted to particular areas, which has been the current practice.
What does the new law do?
The law defines freedom of expression as speaking, picketing, carrying a sign, or distributing material, and allows people the right to do so freely throughout public university campuses. Voter registration drives also count as free speech. Speech for commercial purposes, like trying to sell stuff, doesn’t.
Universities are still allowed to set some limitations, though. The law says, for instance, they can determine “reasonable time, place, and manner restrictions” for pickets, protests or demonstrations so they don’t interfere with classes.
The new law also does something else: It allows students the right to sue someone for attorneys’ fees and damages if they believe their free speech rights were violated on campus.
What sparked an effort for more free speech on Colorado campuses now?
In Colorado, the right and the left came together with unanimous bipartisan support around an issue that, depending on the narrative you prefer, might benefit one side more than other— or just everybody.
In the past few years, college campuses have become high-profile battlegrounds over issues like race, guns, gender identity— and free speech. Around this time last year, news of a Mizzou professor trying to block student journalists from covering a student demonstration, and her subsequent firing, roiled an already busy news cycle about safe spaces on college campuses.
Then, the 2016 presidential campaigns tore across the country, often using college campuses as a backdrop, and bringing with them a residual trail of controversy— and proposed laws. For instance, after the openly gay conservative provocateur Milo Yiannopoulos, who once wrote for Breitbart, embarked on a tour of colleges that drew robust protests, lawmakers in Tennessee proposed a campus free speech law called the “Milo Bill.”
Here in Colorado, Donald Trump’s campaign took him to at least one college in Colorado where protests raged outside. More than 100 professors signed a petition in protest of Trump’s “rhetoric of exclusion.”
At a rally for Libertarian Gary Johnson at the University of Colorado’s South Denver campus, a sign directed attendees to a designated “free speech area,” which was mocked by young Libertarians at the event.
“I think it reached a boiling point where people were very familiar with the issue inside and outside the state,” says Republican Tim Neville of Littleton who led the bill’s effort in the Senate. He joked that he calls such areas “quarantine zones” for speech.
“We’re almost treating it like a disease that might spread,” he told The Colorado Independent. “I don’t think people should be quarantined for free speech.”
Neville and other Republicans received Democratic support for the new law. They started work on it in October and made concessions to the higher education community along the way to get the University of Colorado on board.
“What we were concerned about was opening it up to where there were no limits on speech on campus,” says University of Colorado spokesman Ken McConnellogue. The university system was happy with provisions about time, place, and manner restrictions, though, and limiting commercial speech.
“They were concerned someone could set up a soapbox outside a classroom and start ranting about whatever the issue may be,” he says, but the university’s representatives were able to blend some of their existing policies with what lawmakers wanted to do.
“It was a good example of what happens when we work together on these things,” McConnellogue says.
Democratic Rep. Jeff Bridges of Greenwood Village, who led the effort in the House, has his own take for why the law is needed in Colorado, but it’s a view that also hit on current themes.
“To counter misinformation and alternative facts we need more speech, not less,” he says, adding that in the age of Facebook people are comfortable getting their news from those they agree with and tuning out those with whom they don’t.
“If this bill means more people will face challenges to their preconceived notions, that’s a good thing for Colorado students and good for our democracy,” he says.
Denise Maes, who directs public policy for the American Civil Liberties Union of Colorado, says while free speech zones on Colorado campuses have been around for a while, the group only started getting phone calls about them within the past year. For whatever reason, until now, Maes says, “It certainly didn’t rise up to the level of needing legislation.”
The Colorado law was initially pushed by Republicans, but ended up counting on Democratic support to pass quickly through the House and Senate. Hickenlooper signed the bill into law last week.
“What’s interesting about that is that I think the Democratic caucus was skeptical of the bill and was suspicious of it because it was being initiated by what are viewed as very right-wing Republicans,” Maes says. “We were contacted by a lot of members of the Democratic caucus and other quote-unquote liberal or progressive groups about what we thought about the bill because of that … and I think they were looking to the ACLU to give them the OK. So it was very interesting that way.”
Maes doesn’t believe there is a liberal or conservative view on the First Amendment, and the ACLU long has taken the position of protecting free speech, including offensive speech. Indeed, the answer to offensive speech, she says, is merely more speech.
The Colorado Press Association supported the new law, too, and sent someone to testify in its favor at a committee hearing, which was weighted heavily by testimony from religious liberty and pro-life groups.
“We believe all elements of the First Amendment are important, not just freedom of the press,” says Press Association CEO Jerry Raehal. “As this bill spoke to both speech and assembly, we felt it was worthwhile to support.”
Why did campuses have free speech zones to begin with?
During the middle of the last century, the U.S. Supreme Court began developing a body of First Amendment law that said government agencies could impose reasonable time, place and manner restrictions on speech, but could not regulate its content.
Free speech zones were first featured on campuses in the 1960s because of widespread protests against the Vietnam War, says Zachary Greenberg, the Justice Robert H. Jackson Legal Fellow for the Foundation for Individual Rights in Education. Legal challenges to them started at a Texas university in 1970, and after that courts across the country started striking down challenges to campus free speech zones on constitutional grounds when they arose.
Now, we’re at the point where state legislatures are starting to try and pass laws.
In recent months, the ACLU of Colorado filed open records requests to multiple state universities about their individual policies and found they were all over the map.
The Foundation for Individual Rights in Education, or FIRE, a national group, has made eliminating campus free speech zones a priority. The group has singled out two universities in Colorado in particular as trouble spots.
According to FIRE, “Colorado State University–Pueblo requires demonstrators to apply for permission to gather three days in advance, without publishing the criteria by which those applications will be evaluated. And the University of Colorado Boulder designates only one location on campus where students can assemble to exercise their free speech rights without obtaining advance permission, and requires 10 days’ notice for all other outdoor areas on campus.”
FIRE allied with the ACLU of Colorado to lobby for the new law here.
How are other states faring with similar laws?
Similar legislation passed in Virginia, Missouri and Arizona, according to FIRE.
But, as The Colorado Statesman noted, as Hickenlooper was signing Colorado’s new law, “news came from North Dakota that the state Senate voted down a campus free speech bill.” Elsewhere, debate over nomenclature likely doomed a measure
More from The Statesman:
Lawmakers in Tennessee named their version of the legislation the “Milo Bill” after Milo Yiannopoulos, the provocative former Breitbart News editor. Later, after Yiannopoulos fell out of favor with conservatives for exercising free speech in support of pedophilia, Knoxville state Rep. Martin Daniel began calling his bill the “Thomas Jefferson Student Freedom of Expression Act.” The name change may not have worked. The last noted action on the bill saw it removed from an education committee calendar.
“I do know that there has a been a concerted effort to try and push back against what is perceived as a less tolerant climate on college campuses for speech,” Frank LoMonte, director of the Washington, D.C.-based Student Press Law Center, told The Colorado Independent. “The common narrative has been that is has been people on the left that have been disrupting speakers on the right, and I think that’s why you’re seeing conservatives and libertarians as the driving force behind these bills.”
When does the new law go into effect?
You can start your free speeching on public campuses across Colorado as of Nov. 9. Until then, though, you must remain in the zone.