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