SILENCE IN THE SOUTH? We Banned Free Speech Zones, Lawmakers Say
Part 2 of 4: State legislators who passed the Alabama Campus Free Speech Act say university leaders and lawyers are "misreading" the intent of their law.
(This is part two of a four-part series, “Silence in the South?” covering the Young Americans for Liberty v. the University of Alabama System. Here’s part one. )
Attorneys from across Alabama have written hundreds of pages of legal briefs in the past few weeks arguing whether state law actually bans “free speech zones” at public universities, and if so, does that prohibition apply to the 16 different “spontaneous activities of expression” areas on the University of Alabama in Huntsville’s campus.
These areas “fit the statutory definition of speech zones like a glove,” which are prohibited by the Alabama Campus Free Speech Act, write the lawyers for the student who sued the university, Joshua Greer, and his student organization, Young Americans for Liberty.
Not so, say the lawyers for Chancellor Finis St. John and the University of Alabama System. They note that besides those specific locations, the school’s policy states that “spontaneous activities of expression may occur in other areas of campus” by completing an application 24-hours before the activity.
As the Alabama Supreme Court studies those briefs, it might be helpful to ask the opinion of the people who actually wrote the law — our state legislators.
Did the State Legislature intend to ban free speech zones?
“The statute,” reads the brief filed by several state representatives and state senators who voted for the law, “intended to prevent administrators from establishing speech zones to which to regulate groups or speakers and allow for unfettered access to outdoor areas on campus for spontaneous speech.”
“In other words,” the lawmakers added, “the law means what it says.”
So what did that law say? Its authors took the time to precisely define what they consider a free speech zone.
From the law:
FREE SPEECH ZONE: An area on campus of a public institution of higher education that is designated for the purpose of engaging in a protected expressive activity.
And then it said this about such places:
That the outdoor areas of a campus of a public institution of higher education shall be deemed to be a forum for members of the campus community, and the institution shall not create free speech zones or other designated outdoor areas of campus in order to limit or prohibit protected expressive activities.
“The definitions in the act are clearly stated,” said State Rep. Arnold Mooney, R-Birmingham. He voted for the act and signed-on to the brief to the Alabama Supreme Court defending its enforcement. “I don’t understand anyone who reads the act thinking that such zones are permitted.”
But was that ban intended to include the “spontaneous activities of expression” areas mentioned in the UAH policy?
“The text of the (law) is directly at odds with the university’s policy,” the lawmakers write. “Indeed, the policy is 180-degrees from the legislature’s express protection of speech to the fullest extent possible in order to promote the university’s mission of discover and dissemination of knowledge.”
The university’s action, and the lower court’s upholding of it, results from a “misreading of the act that would allow the university to establish speech zones as a time, manner, and place restriction on campus speech and require prior approval for spontaneous speech,” they write.
Here, the university seeks to use one part of the act against the other. Its lawyers justify the time, place, and manner restrictions on speech — and even their free speech zones — by referencing how the act says that the school “shall not permit members of the campus community to engage in conduct that materially and substantially disrupts another person’s protected expressive activity or infringes on the rights of others to engage … or listen to it.”
Since we don’t want one student disrupting the speech of another, the argument goes, we’re going to confine all speech to either a reserved time and place or one of these zones.
That obviously wasn’t the lawmaker’s intent, and they say so in the brief.
The act “seeks to do away with those very types of restrictions and to categorically ban Alabama colleges from interfering with spontaneous student speech in the outdoor areas of campus,” the lawmakers explain.
“The hypocrisy that surrounds this issue is mind-boggling,” said State Rep. Mike Ball, R-Madison, who both supported the campus free speech bill in the legislature and signed onto the recent brief explaining its intent. “It seems everyone supports free speech in theory, but nobody fully supports it in practice.”
Ball remembered his discussions with the bill’s sponsor, State Rep. Matt Fridy, who is now a judge on the state appeals court. “I had quite a bit of discussion with Rep. Fridy about this bill during the 2019 session, about our shared concern in the deterioration in freedom of thought, not only in our institutions of higher learning, but in our entire society,” he said.
Their concerns proved warranted. As the brief by the lawmakers points out, the university’s own actions in creating and defending their policy make the best case for why the law was not only needed, but how it now must be vigorously, and constantly, defended.
“The university’s attempt to evade the legislature’s express directives only highlights the instinct that administrators have to regulate speech and the need for (the Alabama Supreme Court) to enforce the statute as written,” they write.
In an era when our high courts often cite such tangential sources as private letters to infer the original intent of a long dead lawmaker, one hopes they’ll pay at least some attention to ones who are living and breathing and explaining, in very plain language, what their law actually means to those who seek to complicate and obfuscate the obvious.
Coming in Part 3 of 4: Chancellor Finis St. John and the system’s board of trustees argue that it actually doesn’t matter if their free speech zones violate the law … because they don’t have to obey that particular law, anyhow.
(J. Pepper Bryars is Alabama’s only reader-supported conservative journalist. You can support his writing by subscribing at https://jpepper.substack.com/subscribe.)