House Bill 1401, a bill aimed at promoting Free Speech on college campuses, passed both chambers of the Virginia General Assembly and was signed into law by the governor in March 2017. This legislation inserted the following sentence into the Code of Virginia: “Except as otherwise permitted by the First Amendment to the United States Constitution, no public institution of higher education shall abridge the constitutional freedom of any individual, including enrolled students, faculty and other employees, and invited guests, to speak on campus.”
Delegate Steve Landes, a Republican representing a district in central Virginia, was the bill’s chief sponsor. He believes that the legislation will enhance Free Speech rights for university employees and speakers on campus. “I think it will allow universities to be able to point to the law and say it’s our goal and the state’s goal to promote free speech and to make sure we’re actively trying to do that,” Landes told The Cavalier Daily, a student-run publication at the University of Virginia and the oldest daily newspaper in Charlottesville. Landes continued, “I think universities can comply with this pretty easily. A couple other statutes already on the books promote free speech for faculty and students, so it would be just a restatement of that policy but also expanding it to include the groups of employees and invited guests.” Referencing recent protests concerning controversial speakers on campuses across the country, Landes said, “There have been some issues, not in Virginia but on other campuses, where faculty or speakers that have been invited onto campus are not allowed to speak by groups infringing on their First Amendment rights.”
Delegate David Tuscano, a Democrat representing Charlottesville and minority leader in the House of Delegates, voted for the legislation. However, he called on his Republican colleagues to defend the First Amendment against alleged threats from President Donald Trump. “Free speech is a core value on which this nation was founded, yet it is indeed under threat by a new president who bullies his critics and threatens to jail his political opponents,” he said, according to The Cavalier Daily. “While the First Amendment protects campus speech, we hope the Republican caucus will join us in fighting to protect the First Amendment under President Trump.”
Delegate John Bell, a Democrat, voted against this legislation, calling the bill “a solution looking for a problem.” He believed the legislation was unnecessary, telling The Cavalier Daily, “The Constitution guarantees free speech, I don’t know why we would need to guarantee it a second time.” In explaining his opposition, Bell also cited concerns about protecting hate speech. Referencing unspecified hateful remarks, he said “I don’t want to encourage that and this bill in some ways could” do so, according to The Cavalier Daily.
Democratic Governor Terry McAuliffe signed the bill into law without releasing a statement.
HB 1401 amended Article 1 of Chapter 9 of Title 23 in the Code of Virginia to include a sentence about First Amendment rights at public colleges and universities. The legislative language was amended in the Senate to include the word “constitutional.” The final version of the bill passed the Senate by a margin of 36-4 and the House of Delegates by a margin of 79-16. While the bill earned votes from both Republican and Democratic lawmakers, every legislator who voted against it was a Democrat.
Claire Guthrie Gastañaga, executive director of the American Civil Liberties Union of Virginia, called the legislation “unnecessary.” She told RVA Magazine, “The First Amendment already limits the ability of public universities to ‘abridge’ free speech by anyone on campus.”
In an editorial for The Daily Progress, a student at the University of Virginia School of Law, Erich Reimer, also acknowledged the bill’s redundancy, but underscored its symbolic importance. “HB 1401, while a symbolic bill with no material legal impact, demonstrates firmly the united front that the commonwealth is stepping forward in defense of our fundamental constitutional values. While today it might be conservative speech that is being silenced, tomorrow when the scales have turned it might be liberal speech,” he wrote.
However, Joe Cohn, legislative and policy director for the Foundation for Individual Rights in Education (FIRE), believes that the bill could impact university policies and increase compliance with the First Amendment. “One way to read this bill is that it’s simply a statement of what is already in the law,” he told RVA Magazine. “But if you’re in the compliance office of a public university of Virginia, not all of them are looking up common law, but they sure as heck know what the legislature said to them next term.” Cohn also predicted that the law’s implementation would be non-partisan. “Censorship is not a partisan action,” he told The Cavalier Daily. “People censor who they disagree with on both sides of the political spectrum.”
Governor Signed Legislation Into Law
Governor Terry McAuliffe signed this legislation without a statement on March 16, 2017. The bill went into effect on July 1, 2017.
Prepared by Will Haskell ‘18
October 4, 2017