The passage last week of the Charlie Kirk Act in Tennessee has sparked conflicting claims about its impact on free speech. The Foundation for Individual Rights and Expression called the law “a significant win for free expression at Tennessee’s public universities.” I’m skeptical of this cheerleading. The original version of the Charlie Kirk Act in Tennessee was a severe threat to free speech, but these dangerous provisions were largely fixed in the end, as FIRE noted: “The amended version also dropped both the mandatory discipline section and the private civil enforcement section, including an exception to Tennessee’s anti-SLAPP law.”
But I think some of the law’s harshest critics are also off target. Tennessee state Rep. Justin Jones argued that the law “should terrify us all” because “it mandates suspensions for coordinated walkouts by students and banners they might display in protest of a speaker.” That’s not quite accurate. The law (which removed the mandated penalties in the final wording) says that people can be punished for “staging walk-outs during an event or in the middle of an invited speaker’s remarks that result in material and substantial disruption.” It is almost impossible for someone merely walking out of a speech to cause a “substantial disruption” of an event; that raises questions about whether this law could be abused to suppress legitimate protests, including walkouts. But it’s not terrifying.
Still, there are potentially disturbing aspects of the new law. One provision under the law is very concerning: “Using signs or objects in a way to block or impede an audience member’s view of an invited speaker …” Unlike other rules, this has no restriction requiring intent to censor and a substantial disruption. It’s possible that this law could be abused to punish any protester with a sign who for a brief moment slightly impedes someone’s view of a speaker. This would be an unconstitutional misuse of the law, but the poor wording of the legislation creates that possibility.
Another dangerous provision in the new law is this: “A public institution of higher education or a faculty member or agent of the institution shall not retaliate in any way or discriminate in any manner against a faculty member on account of the viewpoints expressed in the faculty member’s scholarly work, or on account of any speech or writing protected by the First Amendment of the United States Constitution.”
This is a badly written rule. Faculty members routinely discriminate against other faculty based on their viewpoints all the time, as they should. When faculty judge that another professor’s ideas constitute lousy research, they discriminate against their viewpoints by voting against a tenure or promotion application. Suppose a professor thinks that a colleague is dumb and intolerant and recommends that a student should avoid taking a class with that colleague. Could that be interpreted as retaliation or discrimination “in any manner”? Could mere criticism of a professor be regarded in this same way?
It’s one thing to say that professors cannot be silenced or punished by a university merely for the expression of their views; it’s quite another to say that other faculty cannot judge their academic work, and the failure to include an exemption for legitimate academic judgments of scholarly merit is a serious flaw in the law.
The Charlie Kirk Act also requires colleges to adopt the Chicago principles, including this statement: “The University may restrict expression that violates the law, that falsely defames a specific individual, that constitutes a genuine threat or harassment, that unjustifiably invades substantial privacy or confidentiality interests, or that is otherwise directly incompatible with the functioning of the University.”
I criticized the Chicago principles when they were originally written for being too restrictive of free speech precisely because of this provision. Universities should not punish defamation (which is a matter of civil litigation often used to suppress speech), and vague restrictive provisions about “privacy” interests and “the functioning of the University” are too broad. These words were intended as a report about free speech, not as language used to punish people for violating. Hopefully, Tennessee colleges will protect free speech by adopting the Chicago principles as a thoughtful statement of values rather than as a specific code of conduct that limits speech.
The same applies to the law’s requirement for colleges to substantially adopt the University of Chicago’s Kalven report. The Kalven report was intended as a voluntary restraint on the central administration. I’ve argued that the Kalven report is often misunderstood and misinterpreted and has been abused at the University of Chicago to silence faculty speech rather than protect it.
FIRE wrote, “If Tennessee’s state universities implement this properly—as a restraint on the institution itself and not as a restraint on students or faculty, as we’ve seen elsewhere—this will further bolster the free flow of ideas on campus.” The problem here is the “if.”
Tennessee colleges need to adopt the Kalven report with all of its protections–ensuring that it is a voluntary guide rather than an enforceable rule, maintaining exceptions for the corporate activities and core values of a college, and including the report’s provision that a faculty committee should interpret what it means rather than administrators or politicians.
Despite all its remaining flaws, the last-minute amendments made the Charlie Kirk Act a not-terrible law for free speech, and that’s a victory nowadays considering the kind of outright repression Republicans in other states have enacted. Whether the Tennessee law in the end restricts more free speech than it protects is a close question and depends a lot on how it is interpreted and enforced. Colleges (with the guidance of students, faculty and free speech advocates) need to adopt policies under this law that clearly protect free expression and clarify the ambiguous language in this law that has the potential to restrict campus liberty rather than protect it.
