graphic of Free Speech in State Legislatures

Federal judge strikes down Kansas anti-boycott law – January 2018

Wichita, KS

A public school teacher in Wichita, Kansas, was not allowed to join a Kansas State Department of Education (KSDE) program because she refused to certify that she was not participating in a boycott against Israel. With the support of the American Civil Liberties Union (ACLU), she filed suit against the Kansas Commissioner of Education, alleging her First Amendment rights had been infringed upon. A federal judge ruled in her favor, declaring the Kansas law that had allowed this to occur unconstitutional.

Key Players

Esther Koontz is a public school math teacher and curriculum coach in Wichita, Kansas. She is also a member of the Mennonite church. In the early 2000s, Koontz traveled to the Israel/Palestine region. After witnessing what she considered unjust Israeli treatment of Palestinians, she considered taking part in a boycott of Israel. Then, in July 2017, the Mennonite church passed a resolution encouraging members to remedy injustices against Palestinians and Israelis, in part by boycotting goods produced in Israel. Koontz chose to participate in this boycott of Israeli goods and of companies that allegedly “profit from the violation of Palestinians’ rights.”

The Kansas State Legislature, in June 2017, passed HB 2409, which prohibited the state from doing business with individuals or companies that are “engaged in a boycott of Israel.” The bill also required all individuals and companies with which the state of Kansas does business to sign a written certification that they are not engaged in a boycott of Israel. Dozens of similar laws have popped up in state legislatures across the country over the last few years in response to the recent growth of the Boycott, Divestment, and Sanctions (BDS) movement.

Further Details

In 2017, Koontz — who has worked as a teacher for over a decade — was selected by a KSDE program that allows veteran teachers to train other public school teachers throughout the state. She had completed the necessary training and scheduled her first sessions as a teacher trainer when she was contacted by a state employee who informed her that, in order to work in this capacity as a state contractor, she would need to sign a statement certifying she was not boycotting Israel. Koontz refused to sign the certification and thus was prevented from working in the KSDE teacher-trainer program.

In October 2017, the ACLU filed a suit against Kansas Commissioner of Education Randall D. Watson on Koontz’s behalf in United States District Court for the District of Kansas, alleging her First Amendment rights had been violated. The ACLU cited the 1982 Supreme Court decision NAACP v. Claiborne Hardware Co., which ruled that the government cannot prohibit peaceful, politically-motivated boycotts.

In an article on the ACLU’s website, Koontz wrote, “I am challenging this law because I believe that the First Amendment protects my right, and the right of all Americans, to make consumer spending decisions based on their political beliefs.”

However, proponents of the bill argued its importance for Kansas’ economic well-being. “It’s in the best interest of Kansas to continue our strong partnership with Israel,” said State Representative William Sutton, a Republican.

Outcome

Federal judge rules Kansas anti-boycott law unconstitutional

In January 2018, a federal judge in Kansas ruled HB 2409 unconstitutional, as it infringed upon the First Amendment Free Speech rights of those who choose to boycott Israel. The decision reaffirmed the Supreme Court’s decision in NAACP v. Claiborne Hardware Co., noting that “the Supreme Court has held that the First Amendment protects the right to participate in a boycott like the one punished by the Kansas law.”

External References

Kansas House votes to block contracting with Israel boycotters, The Wichita Eagle

The Constitutional Right to Boycott, The Atlantic

Kansas Is Punishing A Teacher for Following Her Church’s Guidance to Boycott Israel, The Intercept

In a Major Free Speech Victory, a Federal Court Strikes Down a Law that Punishes Supporters of Israel Boycott, The Intercept

Kansas Won’t Let Me Train Math Teachers Because I Boycott Israel, ACLU

Kansas State Legislature, HB 2409

KOONTZ V. WATSON — OPINION, ACLU

Prepared by Maya Gandhi ’20

Uploaded May 29, 2018

graphic of Free Speech in State Legislatures

Arizona governor signs law imposing consequences on students who impede speech – 2018

Phoenix, AZ

Despite concerns raised by the Foundation for Individual Rights in Education (FIRE), Arizona’s legislature passed a law aimed at protecting Free Speech on college campuses. Meanwhile, the president of Arizona’s largest public university claims that the state’s lawmakers themselves constitute the greatest threat to Free Speech.

Key Players

Governor Doug Ducey, a Republican, signed HB 2563 into law on April 26, 2018. In his signing letter, Ducey acknowledged a lack of Free Speech controversies at Arizona’s public colleges and universities. “On our state’s… campuses, free speech is protected and diversity of thought is valued,” he wrote. However, Ducey’s letter called attention to Free Speech incidents “across the country, from Berkeley to Harvard, from Missouri to Middlebury [where] protests and violence have attempted to silence speech that some people just don’t want to hear.”

State Representative Paul Boyer, a Republican who represents northern Phoenix, sponsored the law. According to AZ Central, Boyer expressed concern about the University of Arizona’s attempt to hire social justice advocates in 2017. These employees would report incidents of bias, a responsibility that some conservative legislators denounced as “speech police.” Boyer told AZ Central that the mission of his bill was to ensure that any restriction on speech is content-neutral. “If you’re a Bernie bro or a fan of Milo Yiannopoulos, you have a right to have your speech protected,” he said.

Further Details

The new law requires public colleges and universities to establish 15-member committees to monitor and report infringements on Free Speech, according to AZ Central. The law also allows individuals to sue colleges and universities in the event that their Free Speech rights are violated. In an effort to fight against the “heckler’s veto,” a phenomenon in which protesting students sometimes shut down speakers they object to, the law imposes minimum damages of $1,000 for such incidents. Finally, the law notes that “if a student has repeatedly been determined to have materially and substantially infringed on the expressive rights of another person, a punishment of suspension or expulsion from the university or community college may be appropriate.”

FIRE strongly opposed the law, writing in a blog post that it would “have a profound impact on student expression on campuses across Arizona,” and that the legislative “language would allow student speech rights to be routinely violated.” Specifically, FIRE objected to a provision that permits universities and colleges torestrict a student’s right to speak, including verbal speech, holding a sign or distributing fliers or other materials, in a public forum.”

HB 2563 was authored by the Goldwater Institute, a conservative think tank located in Phoenix. Additionally, two conservative Christian organizations, the Alliance Defending Freedom and the Center for Arizona Policy, participted in drafting the law.

In April 2018, Eileen Klein, then-president of the Arizona Board of Regents, warned that legislation aimed at protecting Free Speech on campus often curtails it instead. She noted that university officials helped get the bill in “as good of shape as possible,” reported AZ Central.

Despite the intention of legislators to protect First Amendment freedoms, the head of the state’s largest university claims that lawmakers themselves constitute the biggest threat to Free Speech on Arizona campuses. Arizona State University (ASU) President Michael Crow told AZ Central that he plans to comply with the new law by reporting any attempts of lawmakers to interfere with Free Speech. “The most troublesome area is the interference of the Legislature in who might speak on campus,” he said. Lawmakers reportedly complained about a course called “The Problem of Whiteness,” according to ASU officials. Last year, a Republican legislator sponsored a bill that would prohibit events, activities, or courses that promoted either the overthrow of the government or division among races. Boyer did not support this legislation.

Outcome

Governor Signs Bill

On April 26, 2018, Governor Ducey signed HB 2563 into law.

External References

HB 2563

‘Campus free-speech crisis’ is focus of new law – despite lack of Arizona incidents, AZ Central

Problematic Arizona campus free speech bill would allow colleges to restrict students’ rights, FIRE

University of Arizona reconsiders plan to hire ‘social justice advocates’, Arizona Capitol Times

Governor Ducey’s Signing Letter

Prepared by Will Haskell ‘18

Uploaded May 7, 2018

Florida: Legislature Considered Requiring Schools to Display “In God We Trust” – 2018

Bill requiring public schools to display state’s motto “in a conspicuous place” died in State Senate

Tallahassee, FL

A law that would have required public schools to display prominently Florida’s motto, “In God We Trust,” earned bipartisan support in the state’s House of Representatives before dying in the state Senate’s Committee on Education in March.

Key Players

Rep. Kimberly Daniels, a pastor and Democrat representing Duval County, sponsored the bill in the House of Representatives. Lawmakers approved it on February 21, 2018, the same day that students gathered in the state capitol to demand stricter gun laws in the wake of a mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida. Daniels drew criticism for remarking on the House floor, “it is not a secret that we have some gun issues that need to be addressed, but the real thing that needs to be addressed are issues of the heart,” reported NPR. She also claimed that the legislation was inspired by a message she received from God. “I believe it was God, and I heard a voice say, ‘Do not politicize what has happened in Florida and do not make this a thing of division,’” she told fellow lawmakers.

Further Details

Motivated by animosity toward the Soviet Union, federal lawmakers adopted “In God We Trust” as the official motto of the United States in 1956. Though the phrase first appeared on Florida’s flag as part of the state seal in 1868, it became the official state motto in 2006, according to the Tampa Bay Times.

Sue Woltanski, a Monroe County parent and public schools advocate, testified before the House PreK-12 Innovation Subcommittee that the bill was unnecessary, reported the Times. “Current statute satisfies the requirement to display the state motto which is, of course, on the state flag,” she said. She suggested the committee focus on “real education issues.” However, the subcommittee unanimously approved the bill, which was then passed by the full House of Representatives on a vote of 97-10, reported NPR.

Atheists of Florida, an organization of non-religious citizens, offered to provide signs to Florida’s public schools if the measure was approved, the Times reported. These signs would have also included the line “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” a clause in the First Amendment to the US Constitution. “We want to help educate about the First Amendment and the establishment clause, as well as about the diversity in our country,” the group’s executive director told the Times.

Outcome

Bill Fails in Senate Committee

Though the bill earned bipartisan approval in the House of Representatives, it died in the Senate Committee on Education on March 10, 2018.

External References

SB 1158

HB 839

Florida lawmakers consider requiring schools to post “In God we trust”, Tampa Bay Times

Florida vote to post ‘In God we Trust’ in schools prompts a question: Whose God? Penn Live

Atheist group says it will offer alternative ‘In God We Trust’ signs to Florida schools, The Hill

Florida Lawmakers Advance Bill Requiring Schools To Display ‘In God We Trust’, NPR

Prepared by Will Haskell ‘18

Uploaded April 9, 2018

 

State Judiciary Committee prohibits citizens from wearing shirts, buttons, or stickers with political messages at hearings – 2018

Connecticut: Judiciary Committee Bans Political Messages at Hearings (2018)

Hartford, CT

Lawmakers in Connecticut decided to prohibit members of the public from wearing shirts, buttons, or stickers that express political messages inside the hearing room. This decision drew sharp criticism from the American Civil Liberties Union (ACLU).

Key Players

David McGuire serves as the executive director of the ACLU of Connecticut. The organization released a statement in which McGuire expressed concern about the committee’s decision. “The Connecticut capitol is supposed to be the people’s house. When people walk into that house to lobby their legislators, they don’t leave their First Amendment rights at the door,” he said.

Further Details

In February 2018, the Connecticut Judiciary Committee, a committee on which state Senators and Representatives jointly serve, announced during a hearing that political messaging on shirts, buttons, or stickers would not be permitted inside the hearing room. On March 23, 2018, the committee heard testimony regarding House Bills 5540 and 5542, which would ban ghost guns and bump stocks, respectively, in an effort to reduce gun violence in Connecticut. The hearing attracted a large crowd of both supporters and opponents of gun control, including members of Moms Demand Action, Connecticut Against Gun Violence, Newtown Action Alliance, and Connecticut Citizens Defense League. Many members of these organizations wore shirts or buttons that expressed their opinion on gun control. Committee members asked that attendees turn their shirts inside out and refrain from displaying their signs in the room.

The ACLU of Connecticut strongly criticized this decision, noting that “wearing a shirt, button, or sticker at a legislative hearing is a basic component of today’s political discourse. Buttons, shirts, and stickers do not interfere with other people’s abilities to lobby, testify, or otherwise participate in democracy. Buttons, shirts, and stickers with political messages help people to make their views known—something that legislators should encourage, not dismiss.”

In a related but separate matter, the United States Supreme Court heard arguments in Minnesota Voters Alliance v. Mansky on February 28, 2018. This case examined whether or not states may prohibit clothing with ideological messaging inside polling places. According to the petitioner’s brief, there are nine states in addition to Connecticut that have similar laws in place regarding political messaging at voting locations. The Court’s decision is pending.

Outcome

Political Messages Banned From Judiciary Committee Hearings

Since February 2018, shirts, buttons, and stickers with political messages have not been permitted in Connecticut’s judiciary hearings.

External References

ACLU Statement

Lawmakers receive mixed message on bump stocks, ghost guns, CT Post

Minnesota Voters Alliance v. Mansky, SCOTUS Blog

Prepared by Will Haskell ‘18

Uploaded April 9, 2018

State Senate rejects Free Speech bill due to its lack of protections against harassment – 2018

Kansas: Senate Bill 340 (2018)

Topeka, KS

In March 2018, lawmakers in the Kansas Senate narrowly rejected Senate Bill 340, also known as the Campus Free Speech Protection Act. This bill would have prohibited the use of Free Speech zones at public colleges and universities. It also would have required universities to pay all security costs related to campus events, including those that feature student-sponsored guest speakers. Critics of the bill claimed it weakened a public university’s ability to protect LGBT individuals from student-on-student harassment.

Key Players

Senator Ty Masterson, a Republican who represents the suburbs of Wichita, introduced the bill. While there has not yet been a major Free Speech incident at a public college or university in Kansas, Masterson told the Associated Press (AP) that his bill was intended to prevent a “political arms race” on campus.

Further Details

In addition to prohibiting the use of Free Speech zones, SB 340 would have prevented public colleges and universities from disinviting guest speakers. According to The Kansas City Star, only one speaker has been disinvited from a college campus in Kansas. In 2016, Kansas Supreme Court Justice Carol Beier was disinvited from Newman University, a private Catholic college located in Wichita, after anti-abortion activists launched a social media campaign opposing her invitation. SB 340 applied only to public colleges and universities and therefore would not have affected this incident if it had been in place at the time.

SB 340 also would have prohibited universities from requiring student organizations to pay security costs that stem from a guest speaker’s appearance on campus. Mark Johnson, a lecturer at the University of Kansas, noted that the law would operate as a “cost-shifting mechanism.” He told The University Daily Kansan that “Right now, the University could impose the cost of security, like hiring off duty cops … on the sponsoring organization.”

Though the Kansas Board of Regents did not take a position on this legislation, Director of Communications Matt Keith said that SB 340 would not alter any state university politics. “It primarily reiterates that universities must abide by the first amendment, which they already do,” he told the Daily Kansan. “Generally speaking, no additional measures will likely need to be taken to ensure students’ right to freedom of speech, as state universities already respect and value that right.”

Seconding this opinion, the editorial board of The Kansas City Star noted that SB 340 “does seem like another solution in search of a problem,” while maintaining that “it’s vital that university speech codes not limit student speech.”

The Kansas National Education Association raised concerns about potential unintended consequences of the law. One representative told the Star that SB 340 could limit an administration’s ability to protect students. The bill expressly prioritized the free exchange of ideas over civility on campus. Specifically, it asserted that “although an institution should greatly value civility and mutual respect, concerns about civility and mutual respect shall never be used by an institution as a justification for closing off the discussion of ideas, however offensive, unwise, immoral, indecent, disagreeable, conservative, liberal, traditional, radical or wrong-headed those ideas may be to some.”

If it had been signed into law, SB 340 would have prohibited universities from enacting anti-harassment policies that go beyond federal, state and local protections. While schools are expected to implement a policy regarding student-on-student harassment, the bill defined such harassment as conduct that is unwelcome and “discriminatory on a basis prohibited by federal, state or local law.” According to the Eagle, “the federal government and Kansas have no law barring harassment on the basis of sexual orientation or gender identity.”

Concerns about the ability of school administrators to protect LGBT students from harassment inspired much of the opposition to the bill. Democratic Senator Anthony Hensley, minority leader in the Kansas Senate, told the Eagle that under the bill’s provisions, schools “can’t effectively discipline students who would harass others because of their gender identity or sexual orientation and I think that is a real big problem.” In turn, Masterson defended his bill, arguing, “until the state recognizes that as a class, why would you allow public institutions to expand beyond what the state would allow?” reported the Eagle.

Davis Hammet, the founder of Loud Light, a Kansas-based organization dedicated to fostering civic participation among young people and minorities, called SB 340 a “pro-discrimination bill.” He told the Eagle that this legislation would create “a really toxic campus climate, a dangerous campus climate.”

While the bill was recommended for passage by the Committee on Federal and State Affairs, it was eventually defeated by a tie vote. Democrats unanimously opposed the bill, while the Senate’s Republican caucus was divided.

Outcome

Tie Vote in Senate Kills Free Speech Bill

Concerns about the bill’s impact on student-on-student harassment policies inspired a 20-20 vote in the Kansas Senate, which effectively killed it. Lawmakers critical of SB 340 noted that the bill would not protect LGBT students from harassment by their peers.

External References

SB 340

Campus free speech bill advances in Kansas Senate, The University Daily Kansan

Do Kansas college campuses really need free-speech zones? The Kansas City Star

Kansas Lawmakers Consider Bill to Protect Speech on Campus, U.S. News and World Report

This bill limited college anti-harassment policies. Kansas senators just killed it, The Wichita Eagle

Newman cancels talk by Supreme Court justice after anti-abortion backlash, The Wichita Eagle

Prepared by Will Haskell ‘18

Uploaded April 2, 2018

State Senate approves bill that prohibits public colleges and universities from disinviting speakers – 2018

Kentucky: Senate Bill 237 (2018)

Frankfort, KY

Lawmakers in Kentucky are considering a bill aimed at promoting Free Speech on the campuses of public colleges and universities. The bill was approved by the state’s Senate and is now under consideration by the Committee on Education in Kentucky’s House of Representatives.

Key Players

Senator Will Schroder, a Republican, is the lead sponsor of SB 237. He told WKMS that this legislation is partially inspired by a conversation he had with a student at Northern Kentucky University. The student reportedly told Schroder that pro-life speech was being suppressed on campus, citing an incident in which crosses and a sign associated with a pro-life demonstration were destroyed. While answering his colleagues’ questions about SB 237, Schroder acknowledged that name-calling and hate speech would be protected under the bill, reported WKMS.

Further Details

This bill would prohibit the use of Free Speech zones on campus and declare all “generally accessible, open, outdoor areas of the campus” to be traditional public forums. Moreover, the bill would bar public colleges and universities from disinviting speakers on the grounds that their “anticipated speech may be considered offensive, unwise, immoral, indecent, disagreeable, conservative, liberal, traditional, or radical….”

Critics of SB 237 have argued that the bill would weaken a school administration’s ability to police campus activity. Senator Ray Jones, a Democrat, opposed the bill. “You know free speech is important, but there is a public safety concern,” he told WKMS.

Senator Reggie Thomas, also a Democrat, raised concerns about the bill’s prohibition on disinviting divisive speakers. “If you read that language literally, that invites hate speech to come on campuses and be spewed and spoken,” he said, according to WMKY. Specifically, Thomas cited a 2014 incident involving former U.S. Senate candidate Robert Ransdell, a neo-Nazi, at the University of Kentucky. Ransdell was “removed from the stage after uttering racially-inflammatory remarks,” reported WMKY. Thomas raised the concern that such action by university administrations would not be permitted if SB 237 became law. Schroder responded to this concern by noting that administrators have “protections . . . if they anticipate something extreme that is going to place the listening audience in danger,” reported WMKY.

A spokesman from the University of Kentucky said that this bill would not impact its existing practices related to Free Speech, according to WMKY.

Outcome

After approval by the Senate, bill awaits consideration by House of Representatives

On March 13, 2018, SB 237 was approved in the Senate by a vote of 27-11. Nine Democrats and two Republicans voted against the bill, while 25 Republicans and two Democrats approved it. The bill will now be considered by the House Standing Committee on Education.

External References

SB 237

Does Free Speech Need More Safeguarding On Campus? GOP Lawmaker Says Yes, WMKY

Kentucky Senate Approves Free Speech Measure, KPR

Prepared by Will Haskell ‘18

Uploaded April 2, 2018

State senate considers Free Speech bill killed by state’s House of Representatives – 2018

South Dakota: House Bill 1073/Senate Bill 198 (2018)

Pierre, SD

Lawmakers in the South Dakota House of Representatives killed a bill that aims to protect freedom of speech on college campuses. However, identical legislation remains under consideration in the state senate. The pair of bills, proposed in January 2018, would eliminate Free Speech Zones on campuses and require public colleges and universities to publish annual reports that detail the steps taken to foster intellectual diversity. The bills’ sponsors were inspired to introduce the legislation after a 2015 incident involving the cancellation of a film that was to be shown at the University of South Dakota (USD).

Key Figures

Representative Michael Clark, a Republican, is the lead sponsor of HB 1073. “The first amendment belongs to everybody, regardless of their station in life,” Clark told The Argus Leader. “I swore an oath to protect these rights with my very life if I must … with House Bill 1073, I honor that oath.” Concerned by recent protests on college campuses across the country, Clark hopes that the bill’s public reporting component will allow lawmakers, as well as the general public, to scrutinize the behavior of university officials. “Students need to be able to question assumptions and debate ideas,” he told Campus Reform. “There are many concerns with how politically one-sided campuses have become; we simply are asking colleges to report on what they are doing to promote intellectual diversity on campus and create a marketplace of ideas, which is what we all should be striving for.”

Further Details

Both HB 1073 and SB 198 would eliminate Free Speech Zones by declaring “any outdoor area of a campus of a public institution of higher education” to be a public forum. While the bills would permit certain time, place, and manner restrictions on speech, students would be permitted to “spontaneously and contemporaneously assemble and distribute literature.” However, the right of counter-demonstrators to “materially and substantially prohibit the free expression rights of others on campus” would not be protected under this legislation.

HB 1073 was co-sponsored by 15 lawmakers in the House of Representatives and 15 state senators, all Republican. The bills were endorsed by the South Dakota College Republicans, as well as the state’s Republican Party, The Argus Leader reported.

Much of the debate concerning Free Speech at South Dakota’s public institutions of higher education is focused on an incident involving the film “Honor Diaries,” a 2013 documentary that explores human rights abuses in Middle Eastern countries. In March 2015, USD administrators cancelled a planned screening of the film, which had drawn criticism from Muslim advocacy groups, reported the Leader. University officials maintained that the cancellation was not an infringement on Free Speech. The showing “was cancelled because the format and setting did not allow for appropriate discussion following the screening,” USD Provost Jim Moran told the Leader. “Whenever USD hosts speakers or films that are controversial the goal is to promote education and better understanding of the people and issues involved.”

Unlike state legislators, university officials in South Dakota oppose the bill, which they feel could spark unnecessary and costly litigation. “The bill is redundant and unnecessary,” the president of USD’s student government association told the Leader. “It is an attempt at a solution to a problem that does not exist. There is no great student issue with the current policies and practices of free speech at USD.”

Moreover, USD officials contend that the legislation is premised on an outdated university policy. While the university did previously utilize Free Speech Zones, it has changed its policy and expanded Free Speech protections to all outdoor areas on campus already. “I think it’s very noble to support free speech by all sides of an issue,” USD Director of Communications Tena Haraldson told the Leader. “I just think that already happens.”

The American Civil Liberties Union of South Dakota also regards the bill as unnecessary. “It’s already the law. It’s already what the Constitution requires,” a policy advisor for the organization told the Leader.

While outgoing Governor Dennis Daugaard (who must step down because of term limits in the state) has not yet decided whether to support the bill, Representative Kristi Noem, a Republican candidate to succeed him, has endorsed the legislation. “Given the rising level of censorship and the concerning limits placed on students’ exposure to differing perspectives, it’s important the Legislature act to permanently protect intellectual diversity on taxpayer-funded campuses,” Noem told the Leader.

Outcome

Killed in House, bill remains under consideration in South Dakota Senate

On February 2, HB 1073 was killed by South Dakota’s House Judiciary Committee. The bill divided Republican committee members, with some voting to support the bill and others to keep it from being taken up on the house floor. SB 198 was referred to the Committee on Education.

External References

HB 1073

SB 198

Lawmakers table campus free speech bill, its twin lives on in S.D. Legislature, The Argus Leader

University of South Dakota movie incident looms large in campus free speech debate, The Argus Leader

SD rep wants colleges to come clean about campus free speech, Campus Reform

Campus free speech bill based on outdated policy, USD spokeswoman says, The Argus Leader

Prepared by Will Haskell ’18

Uploaded March 21, 2018

 

Responding to pipeline demonstrations, North Dakota governor signs four bills that restrict protest – 2017

North Dakota legislature – House Bills 1304, 1293, and 1426, and Senate Bill 2302 (2017)

Bismarck, ND

In the wake of protests concerning the Dakota Access Pipeline (DAP), North Dakota Governor Doug Burgum signed four bills that aim to protect private property and infrastructure. These bills addressed a variety of issues, including the use of masks in public forums and the penalties for trespassing on private property.

Key Figures

Governor Doug Burgum signed the four bills into law on February 23, 2017. His office announced that the bills were “designed to protect landowner rights, deter criminal activity and expand the ability to appoint outside law enforcement officers to assist North Dakota agencies.” Burgum is a Republican.

Further Details

In 2016, environmental activists and Native American tribes, most notably the Standing Rock Sioux Tribe, clashed with law enforcement officials over the construction of the DAP. The pipeline, which transports oil from North Dakota to Illinois, drew criticism for crossing the Missouri River at a point that allegedly threatened ancient burial grounds and clean water supplies. In the spring of 2016, protesters established a camp to block construction of the pipeline in the contested area. Throughout that summer, the number of protesters climbed into the thousands, reported Time. In August, private security forces hired by a Dallas-based energy company used pepper spray and guard dogs to remove protesters who had trespassed onto private land, NPR reported. According to US News, the protests resulted in nearly 770 arrests.

North Dakota legislators reacted to the DAP demonstrations by introducing a series of bills that restricted the right to protest. Representative Terry Jones, a Republican member of the House Judiciary Committee, told The Bismarck Tribune that “the Judiciary Committee is working really hard to balance the rights of North Dakota citizens to protest and the rights of North Dakota citizens to live under rule of law and conduct their day-to-day activities.”

Some legislators opposed the wave of bills, noting that they were hastily introduced as a reaction to the pipeline protests. “I am opposed to knee-jerk legislation because it’s almost always bad legislation,” Representative Rick Becker, a Republican, told the Tribune.

Four bills were approved by both legislative chambers. HB 1304 prohibits individuals from wearing a mask or hood that covers part or all of the face when in a public area, reported the Tribune. Representative Al Carlson, a Republican, was inspired by masked environmental protesters to introduce the bill. “That’s not a peaceful protest,” he remarked to the Tribune about the demonstrations against the pipeline. “It might be legal in Baghdad but not in Bismarck.” The American Civil Liberties Union (ACLU) of North Dakota opposed this legislation on First Amendment grounds.

HB 1293 allows law enforcement officials to issue a $250 citation for trespassing on private property. Proponents of the law noted that the bill is modeled on speeding ticket violations, reported the Tribune.

HB 1426 increases the potential penalty for rioting to one year in jail and a $3,000 fine. Moreover, the penalty for inciting a riot that involves 100 people or more was increased to 10 years in jail and a $20,000 fine. The ACLU of North Dakota argued that this bill would “likely chill First Amendment speech, criminalize legitimate protest activity, and encumber the criminal justice system.”

Finally, SB 2302 permits North Dakota’s attorney general to respond to a large protest by appointing out-of-state law enforcement officers as “ad-hoc special agents,” according to the ACLU of North Dakota.

Many protesters who were involved in the DAP demonstrations believed that this legislative trend violated the First Amendment. “These [bills] are meant to criminalize the protests with no real concern for constitutional law,” a Native American environmental activist told NBC News.

Though four bills ultimately passed the legislature and were signed by the governor, others were rejected by lawmakers. House Bill 1383, for example, would have made loitering “in an unusual manner that warrants justifiable and reasonable alarm” a Class B misdemeanor. This legislation was rejected for being too broad, reported the Tribune. Another failed bill, HB 1203, would have cleared drivers who hit protesters of any liability, so long as the collision was “unintentional,” reported the LA Times.

Outcome

Bills Signed After Protest Camps Cleared

On the afternoon of February 23, 2017, Governor Burgum signed the four bills into law. Earlier that day, the main pipeline protest camps had been cleared by law enforcement officials, according to the Tribune. Each bill contained an emergency clause that rendered it effective immediately.

External References

HB 1304

HB 1293

HB 1426

SB 2302

House approves most DAPL protest bills, The Bismarck Tribune

In North Dakota, it could become legal to hit a protester with your car, Los Angeles Times

Dakota Access Pipeline Protests In North Dakota Turn Violent, NPR

Burgum Signs Bills Aimed at North Dakota Pipeline Protesters, US News

Burgum signs protest bills after main camp is cleared, The Bismarck Tribune

Pipeline Protesters Decry North Dakota Bills That ‘Criminalize’ Protests, NBC News

Bill would ban protesters from using face masks, The Bismarck Tribune

2017 Legislative Recap Part One: First Amendment Bills, ACLU of North Dakota

Prepared by Will Haskell ‘18

Uploaded March 19, 2018

 

Ohio legislature considers anti-mask bill – 2018

Columbus, OH

Republican lawmakers in the Ohio House of Representative proposed legislation that would make it a crime to wear a mask with the intent of obstructing the law, the rights of others, or a person’s “legal duty.” The bill has drawn criticism from liberal protest groups and Democratic lawmakers.

Key Figures

Butler County Sheriff Richard Jones approached legislators about strengthening Ohio’s anti-mask laws in the wake of protests in Berkeley, California, and Charlottesville, Virginia. “I fully support freedom of speech, but when you start concealing your identity, that is a precursor for criminal activity,” Jones wrote in a Facebook post, according to WCPO Cincinnati. “I think enacting this law will be a deterrent to those contemplating committing a crime.” While it is already illegal to wear a mask while committing a crime in Ohio, Jones argues that enacting a broader anti-mask law would help law enforcement officers keep communities safe. “I believe that it’s not good when people throw rocks and they assault people and you can’t film or take pictures of who they are,” Jones told the Portsmouth Daily Times. “So I asked, could we get some legislation introduced that would at least start with the masked people that come to these demonstrations.”

Representative Bernadine Kennedy Kent is a Democratic member of the Ohio House of Representatives and a member of its Criminal Justice Committee. Kennedy Kent opposes this legislation and believes that an individual has a right to wear a mask. “For a number of reasons, people don’t want people to see their faces,” she told the Daily Times. “I mean, maybe it’s a job they have, maybe they don’t want their mom or dad to see what they’re doing… maybe they don’t want the police to know their identity to be maybe put on a list or something.”

Further Details

HB 423 would criminalize wearing a mask with the intent to “obstruct the execution of the law,” to “intimidate, hinder, or interrupt a person in the performance of the person’s legal duty,” or to “prevent a person from exercising the rights granted to them by the constitution or the laws of this state.” Violating the law would be considered a first-degree misdemeanor, punishable by up to 180 days in prison.

The bill’s two primary sponsors and five co-sponsors are all Republicans. Liberal protest groups view the legislation as a partisan attack and a violation of the First Amendment. Lee Thompson, a member of the the liberal Refuse Fascism group, believes this law was proposed to target protesters opposed to President Trump’s agenda. “I’ve never seen anybody in the Klan or Nazis or any of these fascists get arrested for wearing a mask,” he told the Daily TImes. “That’s just a lame, very well-used excuse. Who did they arrest? They arrest people who are progressive, who are on the left, who are fighting for something better than this … that we live under right now. That’s who gets arrested for this stuff, for real.”

Brian Taylor, an organizer of Black Lives Matter Cincinnati, similarly thinks that this bill is aimed at silencing advocates of social justice. “There is a climate in this country as more and more people take to the streets to demand justice on number of different front [sic] there is an attempt by those who represent the state to limit and curtail democratic rights and it’s on every level,” he told Fox 19.

Representative Bill Seitz, a primary sponsor of the bill, believes that HB 423 does not interfere with the freedoms guaranteed by the First Amendment. He told Fox 19 that “The aim of the bill is to give police one more de-escalation tool to use in these cases while preserving freedom to protest, masked or unmasked.”

Outcome

Legislation Referred to Ohio House Criminal Justice Committee

The first hearing concerning HB 423 took place on December 12, 2017.

External References

HB 423

Should Ohio have broader ‘anti-mask’ law? WCPO Cincinnati

States push to criminalize wearing masks, Fox News

Ohio Bill Takes Aim at Masked Protesters, Portsmouth Daily Times

Sheriff, GOP lawmakers want to unmask protesters, Fox 19

Prepared by Will Haskell ‘18

February 23, 2018

 

Nebraska: Legislative Bill 718 (2018)

Nebraska unicameral legislature considers Free Speech bill

Lincoln, NE

The “Higher Education Free Speech Accountability Act” was introduced on the first day of the Nebraska legislature’s 2018 session. This bill would protect “spontaneous expressive activity” on public college and university campuses and impose sanctions on protesters who disrupt speakers on campus. It is inspired by the Goldwater Institute’s legislative model. Similar legislation was enacted in North Carolina and remains under consideration in numerous other states.

Key Figures

Senator Steve Halloran, a Republican, introduced this legislation. “I think there needs to be some clarity when it comes to higher education institutions,” he told the Omaha World-Herald. At a January hearing, Halloran argued that “we need to restore the public trust that the rights students, faculty and guests have to free expression will be protected within institutions of higher learning,” reported the World-Herald. LB 718 is co-sponsored by Senators Tom Brewer and Steve Erdman, both of whom are also Republicans.

Further Details

LB 718 would require the Board of Regents of the University of Nebraska to adopt a statement declaring that “the primary function of each campus is the discovery, improvement, transmission, and dissemination of knowledge by means of research, teaching, discussion, and debate.” The statement would also confirm that “the campus must strive to ensure the fullest degree of intellectual freedom and free expression.” Finally, the Board of Regents must acknowledge that “it is not the proper role of the campus to shield individuals from…ideas and opinions individuals find unwelcome, disagreeable, or even deeply offensive.”

The bill also stipulates that students and faculty be permitted to assemble and engage in spontaneous expressive activity as long as it is not unlawful and does not disrupt the functioning of campus. LB 718 would eliminate the use of Free Speech Zones by declaring all public areas of campus to be “traditional public forums, open on the same terms to any speaker.” Crucially, the bill threatens sanctions against individuals engaging in protests or demonstrations “that materially and substantially infringe upon the rights of others to engage in or listen to expressive activity.”.

Halloran became concerned about the state of Free Speech on campuses after learning about an incident at the University of Nebraska-Lincoln (UNL) in August 2017. Freshman student Kaitlyn Mullen was allegedly verbally assaulted by an associate professor of English and a graduate teaching assistant. Mullen “had set up a booth, without university officials’ permission, for the organization Turning Point USA, for which she had hoped to form a chapter at UNL,” the Hastings Tribune reported. Turning Point USA promotes fiscal responsibility, free markets, and limited government. The organization compiles and publishes lists of college professors who are accused of liberal bias. The teaching assistant shouted profanities at the student as she handed out pamphlets, according to the Tribune, while nearby the professor reportedly held a sign that read “Put me on your watchlist.”

At a public hearing of the legislature’s Education Committee on January 30, Halloran noted that LB 718 was not introduced in response to this isolated incident. “The more my staff and I researched what was happening on college campuses across the nation.…it became abundantly clear that something needed to be done,” he said.

On January 25, the Nebraska University Board of Regents adopted a new policy affirming its commitment to Free Speech, reported The Daily Nebraskan. “As a result of this new policy, many have recommended that we declare victory and withdraw the bill,” Halloran said. “The major issue I have with their new policy is that it does not have a reporting component to the public, which would hold them accountable for their actions or inaction.”

LB 718 has drawn the support of the Foundation for Individual Rights in Education (FIRE). Joe Cohn, FIRE’s legislative and policy director, spoke at the January 30 hearing. “We think this bill is important to do as a legislature because policies can change,” he said. “We don’t want the forward progress that was made…to disappear when your watchful eye isn’t on it any further.” However, Cohn suggested an alteration to the bill to affirm the autonomy of the Board of Regents, reported The Daily Nebraskan. Opponents of this legislation argued that LB 718 violates a “1977 Nebraska Supreme Court case which interpreted the state’s constitution as erecting NU as an independent entity from the Legislature,” according to the Lincoln Journal Star. Rob Schager, chair of Nebraska University’s Board of Regents, had argued that LB 718 would indeed infringe upon the regents’ autonomy.

UNL law professor Eric Berger also testified at the January hearing, noting that “parts of the bill certainly violate the First Amendment,” reported The Daily Nebraskan. “The bill would invite expensive lawsuits to figure out its meaning and constitutionality,” he continued. Julia Schleck, an associate professor of English at UNL and the state conference president of the American Association of University Professors, testified that the legislation was unnecessary. LB 718 “implies Halloran considers the First Amendment to be inadequate,” she said. “Personally, I’m proud of our Constitution and the way in which the First Amendment has protected free speech in America.”

Ayat Aribi, internal vice president of the Association of Students for the University of Nebraska, also testified against the bill, alleging that “nothing has been done about the intimidation that [minority students] experience on campus,” reported The Daily Nebraskan. Aribi continued, “I haven’t had any state senators come talk to me about writing a bill in support of the football players [who kneeled during the national anthem] who received threats of lynching. We’re told to suck it up and move on with our lives.” She also claimed that conservative students “perceive critical thinking, self-critique and open discussion as attacks on their self rather than as a process of refining their ideas and arguments.”

Outcome

Legislation Remains Under Consideration

After the bill’s initial introduction, Halloran amended LB 718 to address various concerns raised by its critics, namely by erasing language that previously directed Nebraska University to set specific policies and by providing more discretion to administrators. The bill was also expanded to include all state colleges and community colleges. Finally, the amended bill would recognize a right to counter demonstrations. LB 718 remains under consideration by the Nebraska legislature.

External References

LB 718

Halloran Introduces Free Speech Measure, Hastings Tribune

Controversial Nebraska Legislative Bill May Threaten Freedom of Speech on College Campuses, The Daily Nebraskan

UNL Faculty Say Free Speech Bill An Attempt to Squash Dissenting Opinions, Lincoln Journal Star

NU Officials, Nebraska Lawmakers are Making Separate Proposals on Free Speech on Campus, Omaha World-Herald

Senator Will Move Forward on Free Speech Bill Even After NU Policy, Lincoln Journal Star

Bill’s Backers, Foes Debate Free Speech on College Campuses, Omaha World-Herald

Prepared by Will Haskell ‘18

Uploaded February 13, 2018