Louisiana swings and misses
Earlier this year, Arizona signed a bill into law that ostensibly protects free speech on public campuses.
Except it has a baffling section that explicitly authorizes public colleges to “restrict a student’s right to speak, including verbal speech, holding a sign or distributing fliers or other materials, in a public forum.”
The authors of the bill claimed that this section had to be read in the context of the following section, which imposes several restrictions on the “time, place and manner” authority of colleges.
But inserting this (last minute!) language that makes a mockery of the First Amendment was stupid and unnecessary. Administrators already seem massively confused about the scope of their authority over student speech, and state lawmakers punted on an opportunity to tell them unambiguously. (It’s not the first time the Republican governor has shown open hostility toward student speech.)
Louisiana did something less stupid but still avoidable in a new law that eliminates so-called free speech zones on public campuses and protects the ability of student groups to require leaders to affirm their beliefs, such as Christians leading Christian clubs.
The overwhelming support for SB 364 in the House (58-25) and Senate (33-0), followed by the signature of Democratic Gov. John Bel Edwards, seems to have distracted everyone from noticing there are two different legal standards included in the bill.
The legislative counsel for the Foundation for Individual Rights in Education, Tyler Coward, points this out in a blog post that says his group wants to work with lawmakers to make “technical” fixes to the law next session.
FIRE is happy to report that Louisiana has now joined the growing list of states to ban free speech zones. The bill could use some technical changes which we hope to address next year.https://t.co/b9g4jThlBb
— FIRE (@TheFIREorg) June 6, 2018
The problem lies with exactly the “time, place and manner” restrictions that Arizona botched (also initially flagged by Coward). He writes:
The first time the standard is mentioned, the bill states that a “public postsecondary education institution may maintain and enforce reasonable time, place, and manner restrictions narrowly tailored in service of a significant institutional interest . . .” [Emphasis added]. This is the standard used by the United States Supreme Court. However, the second time the standard is mentioned, the bill states that time place and manner restrictions must be “necessary to achieve a significant institutional interest.” [Emphasis added]. These conflicting standards are likely to make it difficult for students, administrators, and courts to determine the appropriateness of time, place, and manner restrictions on campuses.
Unless you adhere to the legal view that statutory construction doesn’t matter, and judges should simply invent new meanings for laws when they don’t like them, don’t pat yourself on the back before you’ve nailed down every jot and tittle of every word in legislation.
MORE: Arizona on the verge of revoking First Amendment rights for college students
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