Tennessee state Republican Rep. Martin Daniel stirred outrage last week when he said the First Amendment should give Islamic State the right to recruit on state campuses. He’s wrong about the First Amendment, which doesn’t prevent bans on coordinated recruitment. But the bill he was defending, which would create designated zones for free speech at state-funded Tennessee universities, isn’t such a bad idea.
The law governing free speech on campuses is much more restrictive than the law that applies on a street corner or in a park. We may be approaching a time where there would be a benefit to designating safe spaces for free speech, protected from the regulatory requirements of the Department of Education and the norms of campus life.
Start with Daniel, his bill and his misstep. The bill, called the “Tennessee Student Free Speech Protection Act,” designates all outdoor spaces at Tennessee universities as “traditional public forums,” spaces where free speech would be protected to the highest degree under the First Amendment.
In defending the bill, Daniel was asked by Democratic state Rep. John DeBerry Jr. whether Islamic State should be allowed to “recruit” in those public spaces. Daniel, meaning to stand up for free speech, said the answer was yes. “So long as it doesn’t disrupt the proceedings on that campus,” he said, “they can recruit people for any other organization or any other cause. I think it’s just part of being exposed to differing viewpoints.”
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Unfortunately for Daniel, the Supreme Court ruled in the landmark 2010 case of Holder v. Humanitarian Law Project that even peaceful advocacy can be criminalized under the law banning material support for terrorism if it’s coordinated with a group on the State Department’s list of terrorist organizations. That includes Islamic State.
My own view is that the Holder precedent went too far. It undercut a 1969 holding that speech could only be criminalized if it was intended to incite imminent violence and was likely to provoke it.
But the Holder rule is the law. So Islamic State can’t recruit anywhere in the U.S. Doing so would be a felony.
Nevertheless, Daniel’s bill isn’t as crazy as his legally erroneous justification (which he’s since repeated) makes it sound.
You might think that the First Amendment applies with full force on state campuses. State universities are a branch of the government, which can’t suppress free speech under the Constitution. They’re not like elementary or high schools, where students’ free-speech rights are balanced against the school’s interest in maintaining discipline and order.
Yet the law as it now stands treats universities not like public forums, but more like workplaces, where anti-discrimination laws can restrict certain forms of speech. Pursuant to those laws, universities adopt conduct codes that can punish speech that would almost certainly be protected if uttered in public forums like streets or parks.
The Department of Education interprets federal law to require universities that receive federal money to prevent campuses from tolerating a racially or sexually hostile environment. The department mandates sex harassment codes with specific provisions, even where universities would like to design their own versions.
Here’s what this means in practice. At the University of Oklahoma last year, fraternity brothers led pledges in a horrifically racist song and, for good measure, called for lynching African-Americans. President David Boren expelled two fraternity members from the university. He was morally right to do so. He was also probably legally obligated under the Department of Education’s policy, since the song surely contributed to creating a racially hostile environment.
The expulsion was justified legally because the law considers racial discrimination a course of conduct. The law prohibiting that conduct makes some kinds of speech punishable. That’s permissible under the First Amendment, much in the way that the First Amendment permits sex harassment law to punish sexually discriminatory workplace speech. The idea is that, in a constrained environment like the workplace or a campus, the government has a strong interest in fighting discrimination and may adopt laws reasonably well-suited to achieving that end.
Under Daniel’s bill, discriminatory speech probably couldn’t be punished if it took place in an open-air campus space designated as a public forum. To ban discriminatory speech there, the Department of Education and the universities would have to show a compelling interest and a law narrowly tailored to achieve it, a standard that’s well-nigh impossible to meet unless you’re preventing terrorism.
I see no value in encouraging racist speech. But the campus rules that punish it also put lots of other political discourse at risk of being barred as discriminatory or hostile.
Could a Donald Trump rally be understood as creating a racially hostile environment? It seems more than possible. Yet that would mean campuses would have to ban his rallies while allowing others — say Hillary Clinton’s — and that seems like viewpoint discrimination barred by the First Amendment. The same would go for a rally that made white students feel uncomfortable or unsafe.
Free-speech safe zones on campus are thus an idea worth considering — not because they protect Islamic State, but because they could protect core free-speech values in the university setting.
Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard.