About Those UW Free Speech Violations

Wisconsin state legislators are renewing their efforts to combat what appears to be a nonexistent problem: the trampling of the campus free-speech rights by hoards of angry students.

“Campuses across the country have erupted in protest, including violent riots, as the growing debate over who has the right to speak threatens our nation’s first amendment [sic],” declared state Reps. Cody Horlacher, Robin Vos and Dave Murphy, and Sen. Chris Kapenga, all Republicans, in an Aug. 13 memorandum seeking cosponsors for a bill to mandate penalties for students who disrupt speech.

The memo continued: “Invited speakers have been taunted, harassed and even assaulted, leading many universities to cancel events. This is true for campuses here in Wisconsin where several UW System institutions including UW-Madison, UW-Oshkosh, UW-Stout and UW-Stevens Point have had free speech related issues.”

No details of these “free speech-related issues” were provided in the memo or in a press release on the bill from Kapenga and Horlacher. All four of the bill’s primary sponsors declined to answer this question: “Are you aware of any occasions involving disruptions of speech at Wisconsin campuses since the November 2016 event involving Ben Shapiro?”

That event, in which students disrupted conservative provocateur Ben Shapiro’s talk at the UW-Madison, prompted legislators to introduce a nearly identical version of the campus free speech bill in 2017.

Almost as soon as Shapiro took the stage, protesters interrupted his remarks with chants of “Shame!” and “Safety!” Shapiro responded in kind, scrawling “MORONS” on the blackboard behind him and giving the protesters a double-middle-finger salute. At one point, students surrounded the stage and prevented Shapiro from speaking for ten minutes. The protesters were then ushered out, and Shapiro was able to finish his speech without further disruption.

The bill passed the Assembly in June 2017, on a mostly party-line vote of 61-36, but came to a crashing halt in the Senate after the UW System, through the Board of Regents, adopted new rules that accomplished much of what the Legislature was seeking.

The Regents are now in the process of formally promulgating these rules into the state’s administrative code.

As the Wisconsin Examiner reported, an August 13 hearing on the proposed administrative code change drew nine speakers, all opposed to the plan. No members of the Board of Regents, nearly all of whom are appointees of Gov. Scott Walker, attended the hearing.

Analiese Eicher of the liberal advocacy group One Wisconsin Now says passing the current rules as administrative rules would make them “subject to legislative oversight” and harder to change.

Mark Pitsch, a spokesperson for the UW System, says rules promulgated through the administrative code “will require gubernatorial and then legislative approval. Any subsequent change to rules would undergo the same process.” In the meantime, the rules adopted by the Regents in October 2017 remain in effect. Students who disrupt speech are subject to harsh discipline, including mandatory expulsion for a third offense.

That is, if there are any offenses to punish.

Pitsch confirms that there have been a grand total of zero transgressions of free-speech rights, by students or UW employees, at any of the UW System’s 13 universities and 13 branch campuses since the new policy was adopted.

“We know of no such violations,” Pitsch says.

Bill called ‘anti-free speech’

Gov. Tony Evers, who formerly served on the Board of Regents as the state’s superintendent of public instruction, cast the sole dissenting vote against the 2017 rule, saying “This policy will chill and suppress free speech on this campus and all campuses.”

His spokesperson, Melissa Baldauff, says in an email: “The governor’s position on this issue is unchanged. He opposed this policy as a member of the Board of Regents and he opposes it now as governor.” That creates the possibility, if not the likelihood, of an Evers’ veto of the free speech bill. He could also block the Regents’ effort to change the administrative code.

State Rep. Chris Taylor (D-Madison) says “of course” the Republicans know Evers will veto the bill, if passed. “He voted against the Regent policy. And this is worse than the Regent policy. This is more of an assault on the First Amendment because it establishes the speech police, where students can turn each other in.”

According to Taylor, Republicans led by Vos are pushing this bill knowing it will be vetoed so they can use this for political ends.

“This is a messaging bill,” Taylor says. “They’re trying, incorrectly, to label Democrats and the governor as being not for the First Amendment and free speech, when in fact this bill is anti-free speech.”

The Wisconsin bill is based on a model language drafted by the Goldwater Institute, an Arizona-based right-wing think tank whose funders have included the Bradley, Walton and Koch foundations.

In June, Tennessee became the 17th state to enact some form of campus free-speech legislation, with Goldwater-style bills pending in several more states. According to conservative columnist David French, writing that month in The National Review, “more states have passed campus free-speech bills in the past five months than in any other year in American history. Eight have been passed, seven enacted.”

One key provision of the Wisconsin bill drawn from the Goldwater model is that it directs state campuses, as institutions, to “remain neutral . . . on the public policy controversies of the day.”

“They can’t be like, ‘Nazis are bad,’ ” Eicher interprets. “Folks wouldn’t be allowed to say that.” If that sounds implausible, consider this exchange from a hearing on the first bill in May 2017. Lead sponsor Rep. Jesse Kremer, a Republican who has since retired from the Legislature, was asked whether this neutrality rule might prevent a professor from correcting a student who claimed the Earth is only 6,000 years old. Kremer replied: “The Earth is 6,000 years old. That’s a fact.”

‘Entirely political’

None of the bill’s four main sponsors responded to an email asking why it is needed.

In his testimony in favor of the first Campus Free Speech bill in May 2017, Vos asserted that “intolerance and physical aggression have replaced healthy debate and a free marketplace of ideas” on the nation’s campuses. His sole Wisconsin example of this trend was Shapiro’s talk.

“From the very beginning, I think this was entirely political,” says state Rep. Jimmy Anderson (D-Fitchburg), a prominent opponent of the bill. “It’s a way to beat up on our university system and portray [students] as some sort of radical extremists. Really, that is just not true.”

There is one substantial difference between the 2017 and 2019 bills. Whereas the 2017 bill merely allowed “a person whose expressive rights are violated” to “bring an action to enjoin a violation,” the 2019 version allows for recovery of “reasonable attorney fees and damages.” (It would also let victorious defendants recover attorney fees “if the action was frivolous or brought in bad faith.”)

One Wisconsin Now, in a press release, argues that this new language means a white nationalist who believes his or her expressive rights are violated could “bring an action to enjoin a violation and obtain reasonable attorneys fees and damages.”

The original version of Wisconsin’s 2017 bill, as drafted, went beyond what the Goldwater Institute recommended, calling for a ban on “violent, abusive, indecent, profane, boisterous, obscene, unreasonably loud, or other disorderly conduct that interferes with the free expression of others.”

As One Wisconsin Now reported at the time, this laundry list of no-nos was added by Vos, the Assembly Speaker. When the state bill drafter urged the removal of this language as overly broad and ambiguous, Vos’s office directed that it be restored, to “bring the section closer to the legislative intent.”

But Kremer subsequently conceded this language likely made the bill unconstitutional and introduced an amendment, which passed, to limit discipline to “violent or other disorderly conduct that materially and substantially disrupts”—identifying actions that are already illegal. He rejected calls to tamp down language regarding institutional neutrality and mandatory penalties for repeat offenders, both of which remain in the 2019 bill.

Reprinted with permission of Wisconsin Examiner.