HB 498

This bill would require state two-year and four-year colleges and universities to protect and uphold free speech rights for students and faculty, and would provide a cause of action for violations

Relating to freedoms of expression; to require state two-year and four-year colleges and universities to protect and uphold free speech rights for students and faculty; and to provide a cause of action for violations.

Section 1

The Legislature makes the following findings: (1) Article I, Section 4 of the Constitution of Alabama of 1901, recognizes that all persons may speak, write, and publish their sentiments on all subjects, and that "no law shall ever be passed to curtail or restrain the liberty of speech." (2) Alabama's public institutions of higher education have historically embraced a commitment to freedom of speech and expression. (3) The United States Supreme Court has called public universities "peculiarly the marketplace of ideas," Healy v. James, 408 U.S. 169, 180 (1972), where young adults learn to exercise those constitutional rights necessary to participate in our system of government and to tolerate the exercise of those rights by others, and there is "no room for the view that First Amendment protections should apply with less force on college campuses than in the community at large." Healy, 408 U.S. at 180. (4) The United States Supreme Court has warned that if state-supported institutions of higher education stifle student speech and prevent the open exchange of ideas on campus, "our civilization will stagnate and die." Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957). (5) A significant amount of taxpayer dollars is appropriated to public institutions of higher education each year, and all public institutions of higher education should strive to ensure the fullest degree of intellectual and academic freedom and free expression and recognize that it is not their proper role to shield individuals from speech that is protected by the First Amendment to the United States Constitution, including ideas and opinions the individuals may find unwelcome, disagreeable, or offensive. (6) Freedom of expression is critically important during the education experience of students, and each public institution of higher education should ensure free, robust, and uninhibited debate and deliberation by students. (7) The 1974 Woodward Report, published by the Committee on Free Expression at Yale, the 2015 report issued by the Committee on Freedom of Expression at the University of Chicago, and the 1967 Kalven Committee Report of the University of Chicago articulate well the essential role of free expression and the importance of neutrality at public institutions of higher education to preserve freedom of thought, speech, and expression on campus. (8) It is a matter of statewide concern that all public institutions of higher education provide adequate safeguards for the First Amendment rights of students, and promote, protect, and uphold these important Constitutional freedoms through the re-examination, clarification, and re-publication of their policies to ensure the fullest degree possible of intellectual and academic freedom and free expression.

Section 2

For the purposes of this act, the following words have the following meanings: (1) BENEFIT. Recognition, registration, the use of facilities of a public institution of higher education for meetings or speaking purposes, the use of channels of communications, and funding sources that are available to student organizations at the public institution of higher education. (2) CAMPUS COMMUNITY. A public institution of higher education's students, administrators, faculty, and staff, as well as their invited guests. (3) FREE SPEECH ZONE. An area on campus of a public institution of higher education that is designated for the purpose of engaging in an expressive activity. (4) HARASSMENT. Expression that is so severe, pervasive, and subjectively and objectively offensive that it effectively denies access to an educational opportunity or benefit provided by the public institution of higher education. (5) MATERIALLY AND SUBSTANTIALLY DISRUPTS. Means a disruption that occurs when a person a. significantly hinders the protected expressive activity of another person or group, prevents the communication of a message of another person or group, or prevents the transaction of the business of a lawful meeting, gathering, or procession by engaging in fighting, violence, or other unlawful behavior; or b. physically blocks or uses threats of violence to prevent any person from attending, listening to, viewing, or otherwise participating in an expressive activity. (6) OUTDOOR AREAS OF CAMPUS. The generally accessible outside areas of the campus of a public institution of higher education where members of the campus community are commonly allowed including, without limitation, grassy areas, walkways, and other similar common areas. (7) PROTECTED EXPRESSIVE ACTIVITY. Speech and other conduct protected by the First Amendment to the United States Constitution, to the extent that the activity is lawful and does not significantly and substantially disrupt the functioning of the institution or materially and substantially disrupt the rights of others to engage in or listen to expressive activity, including all of the following: a. Communication through any lawful verbal, written, or electronic means. b. Participating in peaceful assembly. c. Protesting. d. Making speeches. e. Distributing literature. f. Making comments to the media. g. Carrying signs or hanging posters. h. Circulating petitions. (8) PUBLIC INSTITUTIONS OF HIGHER EDUCATION. As defined in Section 16-5-1, Code of Alabama 1975. (9) STUDENT. Any person who is enrolled in a class at a public institution of higher education. (10) STUDENT ORGANIZATION. An officially recognized group at a public institution of higher education or a group seeking official recognition, composed of admitted students that receive or are seeking to receive benefits through the institution.

Section 3

(a) On or before January 1, 2020, the board of trustees of each public institution of higher education shall develop, adopt, and enforce a policy on free expression that is consistent with this act. The policy, at a minimum, shall adhere to the following provisions: (1) That the primary function of the public institution of higher education is the discovery, improvement, transmission, and dissemination of knowledge by means of research, teaching, discussion, and debate, and that, to fulfill that function, the institution will strive to ensure the fullest degree possible of intellectual freedom and free expression. (2) That it is not the proper role of the institution to shield individuals from speech protected by the First Amendment to the United States Constitution and Article I, Section 4 of the Constitution of Alabama of 1901, including without limitation, ideas and opinions they find unwelcome, disagreeable, or offensive. (3) That students and faculty are free to take positions on public controversies and to engage in protected expressive activity in outdoor areas of the campus, and to spontaneously and contemporaneously assemble, speak, and distribute literature. (4) That the outdoor areas of a public institution of higher education shall be deemed to be a public forum for members of the campus community and their invited guests, 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. (5) That the campus of the public institution of higher education shall be open to any speaker whom students, student groups, or members of the faculty have invited, and the institution will make all reasonable efforts to make available all reasonable resources to ensure the safety of the campus community and their invited guests, and that the institution will not charge security fees based on the protected expressive activity of the member of the campus community or the member's organization, or the content of the invited guest's speech, or the anticipated reaction or opposition of the listeners to the speech. (6) That the public institution of higher education shall not permit members of the campus community to engage in conduct that materially and substantially disrupts another person's expressive activity or infringes on the rights of others to engage in or listen to expressive activity and shall adopt a range of disciplinary sanctions for anyone under the jurisdiction of the institution who materially and substantially disrupts the free expression of others. (7) That the public institution of higher education may maintain and enforce reasonable constitutional time, place and manner restrictions for outdoor areas of campus only when they are narrowly tailored to serve a significant institutional interest and when such restrictions employ clear, published, content-neutral, and viewpoint-neutral criteria, and provide for ample alternative means of expression. (8) That the public institution of higher education shall support free association and shall not deny a student organization any benefit or privilege available to any other student organization or otherwise discriminate against an organization based on the expression of the organization, including any requirement of the organization that the leaders or members of the organization affirm and adhere to an organization's sincerely held beliefs or statement of principles, comply with the organization's standard of conduct, or further the organization's mission or purpose, as defined by the student organization. (9) That the institution will strive to remain neutral, as an institution, on the public policy controversies of the day, except as far as administrative decisions on the issues are essential to the day-to-day functioning of the university, and that the institution will not require students, faculty, or staff to publicly express a given view of a public controversy. (b) The policy developed pursuant to this section shall supersede and nullify any prior provisions in the policies of the institution that restrict speech on campus and are, therefore, inconsistent with this policy. The institution shall remove or revise any of these provisions in its policies to ensure compatibility with this policy. (c) Public institutions of higher education shall include in the new student, new faculty, and new staff orientation programs a section describing to all members of the campus community the policy developed pursuant to this section. In addition, public institutions of higher education shall disseminate the policy to all members of the campus community and make the policy available in their handbooks and on the institutions' websites.

Section 4

It is the sense of the Legislature that if a member of the campus community has twice been determined to have materially and substantially disrupted the expressive rights of others as provided for in this act, a minimum punishment of a one-term suspension during the regular school year will in most cases be appropriate. If a lesser punishment than a one-term suspension is issued upon a second such offense, the institution shall submit an explanation in writing to the Committee on Free Expression within two weeks of the determination to impose the lesser punishment. The Committee on Free Expression provided for in this act shall comment on this explanation in its annual report.

Section 5

The boards of trustees of each public institution of higher education shall submit to the Governor and the Legislature a report that details both of the following: (1) The course of action implemented to ensure compliance with the requirements of this act within 90 days after the effective date of this act. (2) Any changes or updates to the chosen course of action within 30 days after making the changes or updates.

Section 6

The board of trustees of each public institution of higher education shall appoint an independent Committee on Free Expression consisting of no less than five members. A minimum of 50 percent of the members of the Committee on Free Speech shall be selected from recognized alumni from each institution. On September 1 of each year, the Committee on Free Expression shall report to the board of trustees, the Governor, the Legislature, and the public, and publish on the institution's website, a report that includes the following: (1) A description of any barriers to or disruptions of free expression within the institution. (2) A description of the administrative handling and discipline relating to these disruptions or barriers. (3) A description of substantial difficulties, controversies, or successes in maintaining a posture of administrative and institutional neutrality. (4) Any assessments, criticism, commendations, or recommendations the committee sees fit to include.

Section 7

Nothing in this act shall be construed to prevent public institutions of higher education from regulating and restricting speech, expression, or expressive activity that is not protected by the United States Constitution or the Constitution of Alabama of 1901, including, but not limited to, the following: (1) Violations of state or federal law. (2) Expressions that a court has deemed unprotected defamation. (3) Harassment. (4) True threats, which are defined as statements meant by the speaker to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. (5) An unjustifiable invasion of privacy or confidentiality not involving a matter of public concern. (6) An action that unlawfully disrupts the function of the university.

Section 8

The following persons may bring an action in a court of competent jurisdiction to enjoin any violation of this act or a policy adopted pursuant to this act: (1) The Attorney General. (2) A person whose expressive rights are violated by a violation of this act or the policy adopted pursuant to this act.

Section 9

It is the intent of the Legislature that constitutionally created boards of trustees comply with the requirement of this act. Section 10. This act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law.