South Dakota: House Bill 1073/Senate Bill 198 (2018)
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).
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.”
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.
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.
Prepared by Will Haskell ’18
Uploaded March 21, 2018