In the realm of political odd couples, state Sen. Jim Nielsen of Gerber and aspiring public interest lawyer Nicolas Tomas may be among the oddest. Tomas, a 26-year-old Democrat, is a promoter of the vegan lifestyle. Nielsen, a 72-year-old Republican, is a cattleman and dairyman by trade.
The unlikely duo found common cause in pushing back against what they see as a climate of restricted free speech on college campuses. Two years ago, Tomas sued Cal Poly Pomona for preventing him from distributing pro-vegan leaflets outside of the “free speech zone”— a 144-square-foot area designated for such activities. Now, Nielsen is carrying a bill to dismantle the use of these zones on public campuses.
The growing number of lawsuits aimed at knocking down speech limits on campus — along with recent high-profile cancellations of controversial speakers such as Ann Coulter at UC Berkeley because of safety concerns — has sparked a raucous public debate over how the 1st Amendment is practiced at colleges and universities.
And California legislators, particularly Republicans, have responded with proposals to hem in the ability of schools to regulate where and how students share their views.
“The motivation is just to ensure there truly is free speech on our campuses in California,” Nielsen said.
Nielsen said it was a “great irony” that California, the birthplace of the free speech movement at UC Berkeley in the 1960s, is now facing scrutiny over how students can express themselves on campus.
But today’s debate is a natural product of our polarized political landscape, said Kevin Baker, legislative director for the American Civil Liberties Union of Northern California.
“It’s understandable that people react very strongly to ideas and speech that they find offensive — frankly, that a lot of people find offensive,” Baker said.
Still, he added, “we’ve learned through history that the best response to speech that we don't agree with is more speech and more education.”
The proposed measures tackle the issue of campus speech in different ways. Nielsen’s bill would reaffirm that outdoor spaces on campus are public forums. Institutions would only be able to impose reasonable restrictions on the time, place and manner of speech, such as barring demonstrations with bullhorns in front of the library during finals week. School policies would also need to allow for spontaneous assembly and distribution of literature, so students can react to breaking news events.
Assemblywoman Melissa Melendez (R-Lake Elsinore) is carrying the Campus Free Speech Act, which would bar school administrators from disinviting speakers and establish disciplinary action for anyone who infringes on the free speech right of others.
Under the proposal, “you’re not allowed to just disinvite people because they’re controversial,” Melendez said. “You can’t have mob rule.”
Recent incidents have primarily been focused on figures from the political right — Coulter at UC Berkeley or former Breitbart editor Milo Yiannopolous at UC Davis — but Melendez said the cause should not be seen exclusively as a conservative one.
“Today it's one type of speaker who is getting pushback from college campuses,” she said. “But 10 years from now, it could be quite the opposite. That's the danger of not dealing with this right now.”
Joe Cohn, legislative director at the Philadelphia-based Foundation for Individual Rights in Education, said the Coulter and Yiannopolous incidents “brought attention publicly in a way that both legislators and the general public can no longer ignore that something is happening on college campuses with regard to how free speech is valued — and it isn’t positive.”
But proponents of Nielsen’s bill recognize that Coulter and Yiannopolous may not be the most sympathetic figures for free speech to the largely liberal California Legislature.
“Democrats view it as bigoted speech,” Tomas said. In his conversations with lawmakers, he said he tries to make a distinction between those controversial examples and less high-profile forms of speech restrictions, such as the clampdown on his distribution of pamphlets.
Scenarios such as the Coulter and Yiannopolous brouhahas are also more difficult to address in legislation. The prospect of large counter-demonstrations, with the potential for violence, presents knotty considerations for officials who must balance civil liberties with maintaining campus safety.
Instead of tackling the thorny question of regulating controversial invited speakers, Cohn’s nonprofit group has focused on college policies that limit expressive activities such as protests or pamphleteering to certain geographic zones on campus — areas that can sometimes be small or hard to access. Other policies require students to get advance permission or permits.
“Free speech zones would be the lowest hanging fruit that would have huge impact on students free speech rights across the board,” Cohn said.
Such zones have prompted a spate of lawsuits. Tomas’ suit against Cal Poly Pomona was settled for $35,000. Earlier this month, the Alliance Defending Freedom, a conservative Christian group, sued on behalf of an anti-abortion group at Fresno State, after a teacher said the students’ chalk messages ran afoul of the school’s speech zone policy.
The university’s president, Joseph Castro, said that policy had been overturned two years ago.
“The university’s policy is clear: free speech on campus is not limited to a ‘free speech zone’ or any other narrowly tailored area,” Castro said in a statement.
But with individual UC, CSU and community college campuses determining their own policies, Cohn said there was a need for legislators to send a message to administrators that overly restrictive policies run afoul of the 1st Amendment.
After successfully pushing bills in Colorado, Virginia and several other states, the Foundation for Individual Rights in Education is now sponsoring Nielsen’s bill.
The legislation would effectively put an end to the practice of free speech zones. UC and the chancellor of California Community Colleges haven’t taken positions on the measure; CSU is working with Nielsen on wording tweaks.
The bill, SB 472, sailed through two policy committees with unanimous support. But a possible hitch looms: UC has estimated that enforcing the measure could add millions of dollars of costs for administrative, security and legal fees.
The potentially high price qualifies the measure for the “suspense file,” in which the fates of all bills pegged with a fiscal impact are decided in one hearing — scheduled in the Senate Appropriations Committee on Thursday — without the typical roll call vote. The bill’s backers worry its suspense file status could enable lawmakers to quietly kill the proposal.
“There's a natural impulse to vote for motherhood and apple pie and free speech,” said Baker of the ACLU. “Bills can die without a vote against them on the suspense [file].”
Cohn scoffed at UC’s cost estimates, noting that many courts have ruled against campus free speech zones as violating the 1st Amendment.
“The idea that the bill will add costs to the state is silly on its face,” he said. “They already have this same liability and same legal obligation, regardless or not if the bill passes.”
If the bill advances, Tomas said, he plans to continue traveling to Sacramento to lobby for Nielsen’s measure.
“I find it really great to team up with the cattle rancher,” he said. “It really symbolizes the issue. Free speech at its finest is two people disagreeing with each other and saying, ‘Let's discuss it.’”
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