Higher Education

Ray Carter | May 2, 2019

Nazi fears stoked in free-speech debate

Ray Carter

This week Gov. Kevin Stitt signed legislation supporters say will augment free-speech rights on Oklahoma college campuses. Opponents argue the law’s unintended consequences will turn college campuses into recruitment centers for white supremacists and similar groups.

But Tyler Coward, legislative counsel for the Foundation for Individual Rights in Education (FIRE), notes about 15 states now have similar laws and says such claims are contradicted by real-world outcomes and the text of the law.

“In no state are we seeing this massive proliferation of white nationalism, or Nazis, or any other forms of so-called ‘hate speech,’ which is a term that is extraordinarily subjective,” Coward said.

Senate Bill 361, authored by Sen. Julie Daniels, R-Bartlesville, and Rep. Mark Lepak, R-Claremore, declares, “Any person who wishes to engage in noncommercial expressive activity on campus shall be permitted to do so freely, as long as the person’s conduct is not unlawful and does not materially and substantially disrupt the functioning of the public institutions of higher education …”

The legislation bars the creation of “free speech zones” and requires colleges to treat outdoor areas of the campus as “public forums,” subject to “reasonable time, place and manner restrictions narrowly tailored in service of a significant institutional interest.” The law requires that when restrictions are imposed by college administrators, those restrictions must “employ clear, published, content- and viewpoint-neutral criteria and provide for ample alternative means of expression.”

SB 361 passed the Senate 36-9 and the House 73-26 before being signed into law by Stitt, but drew heated opposition from some quarters, particularly during House floor debate.

Rep. John Waldron, D-Tulsa, warned that the bill “allows the advocates of the most extreme form of free speech to use that speech to destroy the civil institutions upon which our democracy rests.”

He suggested schools would have to allow speakers who endorse revolution, pedophilia, and Satanism, and cited the early 20th-century rise of fascism, Nazism, and communism as examples of speech run amok.

“In Italy, in Germany, in Russia and other societies, we saw the advocates of the most extreme forms of free speech use newspapers, rallies, radios, and advocacy of the most extreme views to destroy civil institutions,” Waldron said.

In those nations, Waldron said, “All these democracies or democratic institutions were destroyed by the Achilles’ heel of democracy: the idea that we have rights. Now these rights have to be protected. They have to be safeguarded, and nowhere more important than in our universities where students come together and explore the limits of free speech.”

Rep. Merleyn Bell, D-Norman, warned, “Free-speech advocacy has been weaponized by hate groups who cite legislation like 361 as a justification for the use of hate speech in public spaces.”

Between 2015 and 2017, she said seven states passed legislation similar to SB 361 and “reports of white nationalist incidents” on college campuses “exploded by over 75 percent” in those states.

“We know that these groups often look to colleges and campuses as fertile recruiting grounds,” Bell said.

Rep. Lepak, the House author, said the right to free speech means even those with viewpoints most people find abhorrent have the right to speak, and warned that limiting one person’s speech ultimately leads to restriction of other people’s speech.

“You and I might have a dramatic difference of opinion and might have dramatically different beliefs,” Lepak said, “and for me to expect to be able to express mine clearly, loudly and in a public way, don’t I have to allow you to do the same, even though it might offend me to the core and probably most of the people around us?”

Coward said concerns about white nationalist groups taking over Oklahoma campuses are undercut by the language of the law. SB 361 defines the outdoor areas of a campus as public forums “for the campus community.” That phrase is key, since it means the law applies to students and people employed by a school, not outside groups.

“If these protections are only extended to members of the campus community, the university would theoretically still have authority to limit speech of people that are not members of the campus community,” Coward said.

He also pointed out that many forms of speech can still be constitutionally restricted. For instance, if a speaker “was inciting imminent lawless action against a particular community of people on campus,” Coward said the speaker would be subject to legal penalty.

“There are a whole host of hateful types of speech that are not protected, but it’s not because it was hateful, but rather because it violates some other constitutionally permissible restriction on speech,” Coward said.

On its website, FIRE says its mission is “to defend and sustain the individual rights of students and faculty members at America’s colleges and universities. These rights include freedom of speech, freedom of association, due process, legal equality, religious liberty, and sanctity of conscience—the essential qualities of liberty.”

Coward said college codes that unconstitutionally restrict free speech rights have negatively impacted students from all backgrounds.

“We have left-of-center or left-leaning students that are censored,” Coward said, “and right-of-center or right-leaning students that are censored with frequency on both sides.”

He said SB 361 will reduce the likelihood that future Oklahoma college students face similar censorship.

“Overall,” Coward said, “the bill is a big win for student speech rights on campuses in Oklahoma.”

Ray Carter Director, Center for Independent Journalism

Ray Carter

Director, Center for Independent Journalism

Ray Carter is the director of OCPA’s Center for Independent Journalism. He has two decades of experience in journalism and communications. He previously served as senior Capitol reporter for The Journal Record, media director for the Oklahoma House of Representatives, and chief editorial writer at The Oklahoman. As a reporter for The Journal Record, Carter received 12 Carl Rogan Awards in four years—including awards for investigative reporting, general news reporting, feature writing, spot news reporting, business reporting, and sports reporting. While at The Oklahoman, he was the recipient of several awards, including first place in the editorial writing category of the Associated Press/Oklahoma News Executives Carl Rogan Memorial News Excellence Competition for an editorial on the history of racism in the Oklahoma legislature.

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