State Legislatures Have A Duty To Protect Free Speech At Public Universities

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By Thomas K. Lindsay

In the face of rising intolerance on our campuses, there is confusion in some quarters regarding not only how, but whether state lawmakers should act to protect the right to free speech at our public institutions of higher learning.

Here in Texas, as one newspaper account recently stated it, “After months of media conflagration, hand-wringing and attempts to push through new laws, [Texas state] lawmakers still can’t seem to rally around a way to boost students’ free-speech rights. . . .  A few ideas have been raised, but they’ve repeatedly been met with questions about whether a state law regulating universities’ free-speech policies is even necessary.”

This apparent confusion over state lawmakers’ duties is itself confusing: All parties apparently know that the First Amendment applies with equal force to public colleges and universities. (At the same time, there is no First Amendment protection for speech seeking to “incite” the audience to illegal actions, nor for “true threats,” “fighting words,” obscenity, harassment, defamation, or the “heckler’s veto,” through which some seek to “shout down” an invited speaker.) The Supreme Court has ruled that “State colleges and universities are not enclaves immune from the sweep of the First Amendment. . . . [T]he precedents of this Court leave no room for the view that . . . First Amendment protections should apply with less force on college campuses than in the community at large” (Healy v. James 1972).

However, too often today, the freedom required to pursue truth is impeded in and by our universities themselves.


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