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There are good reasons the Ohio General Assembly should prod the states public universities to update their free speech policies to guarantee free and robust discussion of ideas.
But Senate Bill 40, approved unanimously last week by the Ohio Senate, is a poorly conceived and undeserved bludgeon. The Ohio House should be more judicious.
Sponsored by Sen. Andrew Brenner, R-Powell, the bill would prohibit Ohios 14 public universities from taking any action or enforcing any policy that limits or restricts the free expression rights of its students, student groups, faculty, staff, employees, and invited guests in public areas of campus.
The legislation declares all outdoor areas of campus to be public forums and would prohibit universities from charging security fees to a student or student group based on the content of expression or the anticipated reaction to that content.
It also would require universities to keep an updated, online record of how it is complying with the bills provisions and to report any alleged infractions. And much more.
In sponsor testimony, citing no Ohio examples, Brenner said the law is needed because, In recent years, the rigor with which opposing views have been presented has lessened on college campuses. Our students are being taught what to think instead of how to think. In particular, it has been conservative ideologies that have been stifled by the administrations of colleges and universities due to bias, fear or both.
However, in an interview with The Dispatch, Brenner said the bill was inspired by the University of Californias (Berkeley) 2017 decision to cancel a speaking invitation to right-wing provocateur Milo Yiannopoulos.
In seeing what was going on in other states and other universities throughout the United States, we felt (the bill) was needed to be brought here to Ohio so we can protect the freedom of speech for students on campus, Brenner said.
Its true some of Americas colleges and universities, in adopting anti-harassment and anti-bullying policies, were overzealous and went too far in limiting speech.
Over many decades, in dozens of cases, the U.S. Supreme Court has reinterpreted the First Amendment to sometimes narrow but more often broaden free speech protections.
Not until 1939, nearly a century and a half after the birth of the First Amendment, did the Supreme Court rule public places must be open for assembly, allowing citizens to discuss public questions freely. Authorities could reasonably regulate access, but not discriminate.
In 1969, the court held authorities could limit student free speech only by showing it constituted significantly disruptive conduct that would interfere with the schools educational process.
In 1999, in an Ohio case, the court ruled speech could be prohibited only when incitement could reasonably lead to violence.
Case law on free speech will continue to evolve. For this reason alone, its unwise to embed in state law any current First Amendment understanding or practice.
The General Assembly would do far more good to enact a law giving firm but simple directives to Ohios public universities, such as:
Adopt a free speech policy consistent with updated case law on the First Amendment and regularly educate faculty, students and staff on it.
Prohibit so-called free speech zones that limit where public demonstrations and protests are permitted.
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Editorial: Ohio Senate bill on free speech goes further than it should - The Columbus Dispatch