DENVER – A bill that would prohibit Colorado colleges from restricting the free speech of its students cleared the Senate Education Committee Thursday.
The unanimous vote on SB17-005 came after nearly three hours of discussion.
Denise Maes, the public policy director for the ACLU of Colorado, testified to what most everyone in the room already agreed on; the most hurtful speech, the most disliked speech, the speech hardest to listen to, is the speech that needs to be protected the most.
“Hurt feelings is not an exception to the First Amendment,” said Sen. Kevin Priola, (R-Brighton). “That’s the phrase I live by when thinking about these kinds of issues. I appreciate (this bill coming) forward and pushing for free speech.”
But not everyone in the room agreed on how it should be handled on college campuses, and what – if any – regulations college officials can put in place.
Senators heard testimony about how college campuses across the county are limiting speech to certain areas (aka “free speech zones”), which in most cases is a very small part of the overall campus, certain days and certain content. Opponents say being confined to specific areas where college administration deems least offensive limits students’ rights to free speech.
“Peaceful protest ought to occur at the place where it has the most impact,” said Robert Corry, Jr., who as a third-year law student successfully sued Stanford University over free speech issues.
“As long as protestors are peaceful, I don’t see why they should be relegated to free speech zones,” Corry said. “The entire campus should be free speech zones. Campuses are engaged in the exchange of ideas. And sometimes we’re going to be offended.”
WHAT DOES THE BILL SAY?
Senate Bill 5 would ban Colorado’s public colleges from implementing certain time, space and content regulations.
The bill “prohibits public institutions of higher education from restricting a student’s constitutional right to speak in any way in a public forum, including speaking verbally, holding a sign, or distributing flyers or materials. Additionally, a public institution of higher education shall not impose unreasonable restrictions on the time, place, and manner of student speech that occurs in a public forum and is protected by the First Amendment. Court actions for violations of the provisions of the bill are allowed and include recovery of reasonable court costs and attorney fees. Public institutions of higher education are prohibited from designating any area on campus as a free speech zone.”
It initially appeared it would come down to a 4-3 vote along party lines. For most of the hearing the three Democrats on the committee were leaning in a “no” direction. They all initially said they didn’t understand why a bill was needed to enforce something that is in the U. S. Constitution.
THE GREAT DEBATE
Sen. Michael Merrifield, (D-Colorado Springs), who is considering a run for governor, said he believes in politically correct speech and was concerned with the bill for fear it would support speech similar to Nazi Germany.
“Would Adolph Hitler be allowed to speak on CU’s campus?” Merrifield asked. “How would his free speech be treated?”
Patrick O’Rourke, attorney for the University of Colorado Board of Regents said CU has discussed that example and defends its policies – including the “spontaneous speech” zone because some speech is not politically correct and can be disruptive
“Sometimes free speech is more than just hurt feelings,” O’Rourke said. “But the constitution grants a very broad realm of constitutional protection. It’s only when free speech is inciting violence that it becomes unprotected. We view our obligation as not to silence anybody … but to make sure if somebody is going to speak, even if it is controversial, even if some would say the speech is hateful, that it gets to exist, but we want to make sure we’re maintaining the safety and integrity of the environment.”
The bill’s sponsor, Republican Sen. Tim Neville, who represents parts of Boulder, Denver, Gilpin and Jefferson counties, said the problem with “zones,” whether they are labeled free speech or spontaneous speech, is protests shouldn’t be asked to occur far away from where an event is occuring so they can’t be seen. Or, if a student wants to protest something that is timely, they shouldn’t be asked to wait 10 days or schedule the event.
“What happens when that speech is not presented in a forum?” Neville said. “What happens with those feelings and they basically fester? When you have this discourse we have the opportunity for people to talk to each other. I think that is much healthier than the alternative.”
Sen. Rachel Zenzinger, (D-Arvada) said in her own experience working a landscaping job while in college, she understood that at times colleges might need to keep students off of turf or away from certain areas for completely innocent reasons. She was also worried that it would cross the line and allow hate speech.
Neville pointed out a part of the bill that allows for colleges to exempt areas for those types of reasonable situations. He also reiterated that hate speech and speech that incites violence, is not a protected speech under federal law; therefore, it would not be protected under this bill.
Sen. Nancy Todd, (D-Aurora) said she doesn’t understand what the problem is that the bill is trying to fix. She gave her approval conditionally, saying she needed to hear more before she could vote yes when it reaches the Senate floor.
After the hearing, Todd said she wants to hear from more college administrators and students.
“I want to hear what actually is happening because I’m not convinced that student speech is being thwarted in Colorado,” Todd said. “Does it really require a two week wait time? Are there areas designated such that it is not open? So it troubles me to say this bill is about freedom of speech, when I think it’s more about mechanics – the where, the when, the how.”
WHERE IT’S OCCURING
One such Colorado university where free speech issues drew national attention was the University of Northern Colorado in Greeley and its Bias Response Team.
The Bias Response Team was created to address discrimination, harassment, retaliation, and sexual misconduct on UNC’s campus, but became more about stifling free speech, including directing faculty members to cease discussing controversial topics in order to avoid offending students.
It prompted Sen. John Cooke, (R-Greeley) and a graduate of UNC to write a scathing letter to UNC President Kay Norton condemning the idea. The team has since been dissolved, but problems continue at the university in large part because of it, including students calling for Norton’s resignation.
“Where were they today?” Todd said. “Here’s my thing. If this is such a big issue, why are we not hearing more about it.”
She did say she does also see the proactive side of voting for the bill.
“I do respect what Sen. Neville is doing and saying,” Todd said. “I know he is a strong believer in civil liberties. I am a strong believer in civil liberties. I do not want students to feel like they do not have free thought. That’s the most dangerous thing you can do.”
On the other side of the political spectrum, the Republican coalition was on board with the bill from the beginning, with Sen. Bob Gardner – (R-Colorado Springs) saying he was saddened society has gotten to this point.
“If this bill would have come around 10 years ago when I was in the Legislature, I wouldn’t have voted for the bill,” said Gardner. “I would have said this is the constitutional law, why would I pass a bill that restates the law. What I have seen in the last decade is a lot of confusion. I have heard the horror stories. So this does create a new cause of action.
“If people go (to a public college) and they expect always to be comfortable every day because everyone around them believes as they do or will never say anything offensive, I’m sorry. I tell my children to grow up. I used to relish as an instructor (at the Air Force Academy) having my students become uncomfortable at 18, 19 and 20 years old. I find this bill in the year 2017 to be necessary, and that’s regrettable, but it is fact.”
Several people testified, mostly on behalf of the bill, but the University of Colorado was the only higher education institution that showed up to speak. O’Rourke said CU was remaining neutral on it, but said they did have several concerns.
O’Rourke said CU’s biggest concern was with the idea that colleges don’t already allow free speech anywhere at any time. He said that CU has always allowed free speech and does not have a “free speech zone.” However, CU does have a “spontaneous speech” area, O’Rourke said. It is an area by the fountain where free speech that can’t be scheduled or approved by the college can occur.
“That is an area where there is not any type of content restriction,” O’Rourke said. “Some of the language that has been used around free speech zones is confusing. We need to be clear that it is not a restriction of free speech that it is a place where spontaneous speech can occur.”
After the hearing, Neville addressed the idea of a difference between free speech and “spontaneous speech.”
“Free speech is free speech,” Neville said. “Most of the time our speech is spontaneous.”
THE STUDENT VOICE
Perhaps the most passionate testimony of the day came from the college students whom the bill aims to protect.
Emily Faulkner from Colorado State University, who is currently involved in a law suit against CSU for its refusal to use grant money for a speaker because the speaker’s ideals were biased, said she refuses to be silenced by anyone.
“I ask that even if you have your own opinion on abortion that you look deeper into the real issue at hand – a flagrant violation of my First Amendment rights perpetrated by my university, a university that is supposed to be a champion of free speech and a marketplace of ideas,” Faulkner said. “Public institutions should provoke and challenge differing opinions, instead we’re being metaphorically surrounded by bubble wrap and being told to shut up.”
The group that offers the grants advertises it as being for diverse ideas, Faulkner said. The speaker was a pro-life speaker.
Another CSU student Juan Caro said students are becoming more restricted with how, when and where they can express themselves.
“Investigations, whether they are dropped or not create this type of self-censure environment,” Caro said. “Where students fear expressing their constitutional rights. They fear expressing their views because of the shame, the ridicule and the pressure the administration and (other) students attack them with.
“College campuses are supposed to be the epitome of free speech. But instead of encouraging the free flow of ideas, what we’re doing is we’re limiting them to a certain area and a certain audience. And when we start accepting this type of behavior today, we’ll only expect for this to be reflected in society tomorrow.”
Colorado School of Mines student James DeBartolomeis said after his group held a voter registration drive, they were informed that if they wanted to hold any type of public speech activity again, they would have to contact the school at least one week – preferably two – in advance to confirm a location and get approval.
“By setting a free speech zone, the institution is remitigating (its) risk on neutrality within the student body,” DeBartolomeis said. “The institution is infringing on our right to learn by putting limitations on students and revoking our freedom of speech.”
Joseph Cohn, legislative and policy director for the Foundation for Individual Rights in Education said this is an issue that is spreading rapidly across America and his group is working to make others understand why the where, what and when isn’t right.
Cohn said by making “zones,” colleges are keeping students from protesting where it might be most visible to the event they are protesting. By limiting the when, it puts an undue burden on students who may want to protest something that was just announced today, and by limiting the what, they are violating the Constitution in its essence.
“Today’s story becomes tomorrow’s news fairly quickly,” Cohn said. “What would have happened if those that protested the President’s executive order on a travel ban would have had to wait three days? What good would it have done?”
Although the vote ended 7-0 to move the bill to the Senate Floor, it will not be by consent, there will be more debate, but Faulkner and the other students celebrated getting past the first hurdle. She said she is proud her generation is not afraid to stand up for its rights.
“We will defend until our very last breath our right to speak our minds, pass our fliers, hold signs and assemble peacefully,” she said. “We will defend until our very last breath the First Amendment. We will defend until our very last breath the Constitution of the United States of America.”