Campus ‘Free Speech’ Bill Is A Litigation Nightmare in the Making

By Nancy Smith

Talk about a misnomer. The inappropriately named “Campus Free Expression Act,” approved Tuesday by a 7-4 vote of the Florida Senate Education Committee, would offer students about as much freedom as a prison yard.

Exactly what the bill is trying to prevent. 

Senate Bill 1234 has good intentions. It aims to punish those who would shut down free speech, particularly by creating “free speech zones.”

As bill sponsor Sen. Dennis Baxley, R-Ocala, said in his opening remarks, “This bill is to address a flourishing of the limitation of free speech” on campuses, not just in Florida, but throughout the nation.

Though Baxley made a point of saying October’s Richard Spencer fiasco at the University of Florida had nothing to do with the bill’s creation, certainly the incident got the attention of legislators and their concern over the increasing number of attacks on campus free speech.

The fact is, SB 1234 would have punished UF if they had initially attempted to block Spencer’s appearance.

That’s the problem. The bill has a built-in backfire. 

It specifically states that anyone whose free speech rights are violated can go to court to seek damages of $500, plus $50 a day for continuing violations, up to $100,000. And attorney fees are included.

Huge temptation, don’t you think, for lawyers to stake out campuses for business and for students to recoup some of their college loans? 

Even the American Civil Liberties Union, a generally lawyer-huggy group, dumps on the bill for the chilling effect litigation would have on free speech.

In essence, if passed, the legislation will make Florida public colleges and universities legally liable for disruptions caused by student protesters, the ACLU said in a written statement after the committee meeting.

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The “Campus Free Expression Act” is nowhere near ready for prime time.

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“SB 1234 holds colleges and universities liable for when students ‘materially disrupt’ a scheduled event, but because ‘materially disrupts’ is broad and not defined, anyone could bring a lawsuit against the college or university alleging they were ‘materially disrupted.’”

“Because it would be up to our state’s institutions of higher learning to expend significant resources in defending against such frivolous lawsuits,” the ACLU points out, “this bill incentivizes those institutions to restrict students’ speech and peaceful assembly out of concern that someone might boo too loudly.”

Colleges and universities are damned if they do and damned if they don’t. This law, if it becomes one as is, is going to add to Florida education’s bottom line. On the other hand, allowing for a volatile issue like Richard Spencer’s alt-right message, even when free-speech zones were established, didn’t come cheap either — UF had to foot an eye-popping $3 million bill for security.

The one senator who really got it was Wilton Simpson, R-Trilby, who said during Tuesday’s meeting SB 1234 is “not just protecting free speech in outdoor areas on campus, but it’s incentivizing litigation.” He wants the bill revised to remove the attorney fees — by the way, paid only to plaintiffs’ lawyers if their side wins against the institution.

The “Campus Free Expression Act” is nowhere near ready for prime time.

Concluded the ACLU’s policy counsel Kara Gross, “While we absolutely support the part of the bill eliminating ‘free speech zones,’ we have serious concerns with creating a separate cause of action against universities for students expressing their protected speech rights.”

I couldn’t agree more. The legislation implies that demonstrations, picketing, speeches, the distribution of literature and discussion of controversial political positions should be able to take place anywhere on campus, as long as it’s not disrupting class. That part is how it should be. That’s how I remember it was back in the day.

This bill is likely to happen in some form or other. It has a companion alive and well in the House.

But if it has to go any further than eliminating free-speech zones on college campuses, if its creators insist on dragging colleges and universities into court every emotional time there’s a free-speech faux pas, hopefully the scalpels will fix this gaping oversight before we see it again.

Nancy Smith is the editor of Sunshine State News. She started her career at the Daily Mirror and The Observer in London before spending 28 years at The Stuart News/Port St. Lucie News as managing editor and associate editor. She was president of the Florida Society of Newspaper Editors in the mid-1990s. Reach her by email here, or follow her on twitter at @NancyLBSmith.