Why Campus Free Speech Laws Won’t Free Campus Speech

It’s a mess. Campus protests against conservative speakers have inspired conservative lawmakers across the nation to script new laws protecting controversial speech, especially conservative speech. They won’t work, and a look back into the history books can help us see why.

Across the country, from Middlebury to Madison to Berkeley, elite college campuses have witnessed a spate of tumult. Conservative speakers have been shouted down; colleges have been forced to rescind invitations; a small minority of left-leaning students has even turned to physical violence to demonstrate their anger and disgust. In Madison, for example, conservative pundit Ben Shapiro was invited to campus only to be shouted down by a small group of protesters. In response, in places like Wisconsin, conservative legislators have pushed new laws to protect campus speakers.

The reason this culture-war back-and-forth won’t get us anywhere is because it doesn’t get to the heart of the matter. The central disagreement is not about free speech. We all agree that most forms of speech should be protected and we all agree that some forms of speech should be banned. Unpopular political opinions are uniquely protected. Threats, on the other hand, are not okay and they never have been.

That’s why campus free-speech laws won’t do any good. They don’t address the central issue; they only add one more outraged shout to the outraged chorus.

The real heart of the disagreement is about the definition of threatening language. To progressive protesters, speakers such as Ben Shapiro and Milo Yiannopoulos must be shut down because their speeches threaten minority populations. As one anti-Shapirite in Wisconsin explained, Shapiro’s audience “may feel empowered by his speech to hang nooses from the balcony of a frat house, call black people names on the street, or make fun of LGBT members.”

Conservative lawmakers, in contrast, see nothing threatening in the attitude of fellow conservatives. The threats, they think, come from the side of the protesters. Conservative free-speech bills promise to clear up the issue; they promise to spell out the sorts of speech that are threatening and therefore beyond constitutional protection. And there’s the rub.

The Wisconsin free-speech bill, for instance, defines the sorts of protest it will ban. No longer will protesters be allowed to engage in “violent, abusive, indecent, profane, boisterous, obscene, unreasonably loud, or other disorderly conduct that interferes with the free expression of others.”

This list, however, doesn’t offer the kind of clarification it promises. Who decides how loud is “unreasonably” loud? And even the US Supreme Court has struggled to define the “profane.” Was Ben Shapiro “boisterous” when he flipped obscene hand gestures to the crowd and wrote “MORONS” on the board? Or were the protesters “boisterous” when they shouted “fuck white supremacy”?

In cases like this, free-speech bills won’t have any impact. They can’t define the problem … or at least they don’t.

It’s not the first time conservative lawmakers have offered this sort of vagary. Back in the 1920s, when anti-evolution laws were in their first bloom, conservatives cast their nets far and wide in their effort to clamp down. Friends and foes alike called them “anti-evolution” bills, but they often went after much bigger game.

Lawmakers in West Virginia in 1927, for example, tried to ban “any nefarious matter in our public schools.” In Florida, an “anti-evolution” bill actually banned any book “that contains vulgar, obscene, or indecent matter.” Like today’s free-speech bills, these proposed laws never explained or defined what constituted “nefarious” thinking or “indecent” science.

When legislators offer this sort of bill, they don’t really want to clarify our culture-war disputes. They promise to define the problem, but they don’t offer a clear definition at all. Rather, these bills only attempt to write a vague sense of conservative outrage into the law books. In the end, they don’t really clarify anything. Will new laws against “indecent” protests have any effect? Nope.

What we really need—and what we won’t get—is a clear definition of threatening language. Is it threatening to suggest that affirmative action is a sham? Then Shapiro really should have been banned from speaking in Madison. And protesters are right to make “unreasonably loud” attempts to stop him. If it isn’t, though, conservative lawmakers are right to insist on Shapiro’s freedom to speak.

This round of campus free-speech laws doesn’t help us figure out that dilemma at all. Just as 1920s laws against “vulgar” or “nefarious” ideas didn’t clarify the debates about evolution and creationism, so too do today’s intensely vague campus free-speech laws sidestep the most important questions.