On March 15, the Kansas Senate rejected SB 340 which would protect college students’ first amendment rights. Provisions of the bill would prevent Kansas universities from limiting free speech to specific zones, would allow students to distribute literature such as the U.S. Constitution and would prevent interfering with those who have differing points of view. The bill also would prevent universities from charging fees to campus organizations which invite speakers whose views may, according to some, incite violence.
Twenty Republicans voted for it. Twelve Democrats, seven Republicans and one independent voted against it. The bill failed because of the 20-20 tie.
Those who opposed SB 340 argued that the bill infringes on the rights of the faculty to free speech. Section 2 (3) specifically stipulates, however, that the rights of the faculty to freely exchange ideas are “not to be suppressed.”
Amendment I to the U.S. Constitution and Section 11 of the Kansas Bill of Rights guarantee our right to free speech.
Many of the latest controversies have come over free speech zones on public campuses that restrict where students may demonstrate or speak on any topic. Some universities have created zones that can accommodate only a few people. Since 1969, such zones have continually been struck down by the courts as infringing upon a first amendment right.
Courts have also ruled that universities may not prohibit students from distributing literature, such as in the case of a student who was not allowed to distribute copies of the Constitution on campus. SB 340 would prohibit Kansas universities from creating free speech zones while maintaining the right of the universities to enact time, place and manner restrictions that do not abridge Kansas or U.S. constitutional rights and are “narrowly tailored.”
Some of the limitations on speech at university campuses contain such words as “offensive speech” or “verbal abuse,” both being ambiguous terms that are subject to the whim of someone who feels offended. Some speech codes amount to censorship.
Limitations on free speech have been codified by the Department of Education’s Office for Civil Rights when such speech creates a “hostile educational environment.” The genesis of the 1994 ruling was a college bulletin board that included “anatomically explicit and sexually derogatory terms” against two women. Probably most of us would agree that such “speech” cannot be tolerated.
Generally, courts have upheld speech codes that limit speech that leads to physical altercations, defamation and intimidation. One test of such speech would be whether the speaker’s intent is to commit violence, usually of an imminent nature. Courts have ruled that speech that is controversial or offensive, but not conveying any threat, is protected. That someone may be offended is not a valid reason to censor the speech. When university speech codes carry the definition of hostile speech too far, courts have struck down those codes.
Even though we may abhor it, profanity is protected speech. Universities may not censor speech because it conflicts with societal norms of civility. If such speech involves the legal definition of harassment or threats, then it is not protected.
Attorney General Sessions, in a speech at Georgetown University, warned that the encroachment of university policies on the first amendment belie the long-held belief that universities should be sites of “robust debate” not “an echo chamber of political correctness and homogeneous thought, a shelter for fragile egos.”
Unfortunately, 20 members of the Kansas Senate seem to fear that robust debate and controversial ideas will destroy the fragile egos of students at Kansas universities. Sen. Steve Fitzgerald supported the bill in favor of robust debate. Sen. Tom Holland opposed the bill in favor of fragile egos.
Rich Kiper is a Leavenworth Times columnist.