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Testimony, Shelby Emmett, Director Center to Protect Free Speech

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Testimony, Shelby Emmett, Director Center to Protect Free Speech Testimony, Shelby Emmett, Director Center to Protect Free Speech My name is Shelby Emmett. I am the Director of the ALEC Center to Protect Free Speech. I am also a Michigan native, and a proud graduate of James Madison College at Michigan State University. I received dual bachelors in Political Theory & Constitutional Democracy and Social Relations in 2006. JMC gave me a first-hand experience in “the marketplace of ideas” debating everything from gay marriage and affirmative action, to the racial elements of hurricane Katrina and whether nation states or a “citizen of the world” approach is the best public policy for the 21st century. I can tell you I was routinely offended and made uncomfortable in the classroom—and likely offended quite a few of my peers and professors along the way. And although I hate to admit it at times, often I found myself changing my mind on what I thought were established truths. James Madison College forced me out of my safe space and helped me to develop the critical thinking skills necessary to flesh out and counter arguments instead of simply ignoring or attempting to shut down opinions I disagreed with. I am forever grateful for the quality education I received from MSU and I want future graduates of James Madison College and all of Michigan’s public colleges and universities to have the same opportunity to confront ideas as I did. With that said, I want to spend my testimony talking about two very important aspects of this bill: the need to ensure all members of the community, not just students, understand the rules of the game; and the importance of ensuring any legislation passed to protect speech on campus does not unintentionally chill speech or make students or student groups fear whether an administrator will unlawfully haul them into a campus disciplinary hearing. Free Speech and the First Amendment The First Amendment applies to the states via the 14th amendment. All public colleges and universities are required under the U.S. Constitution and the Michigan Constitution to uphold and protect free speech rights on campus. This is not open for discussion. University officials at public universities do not get to pick and choose when to protect these rights, they have a duty to do so. Unfortunately, some Michigan public colleges and universities continue to operate as if there is an asterisk next to the First Amendment. Whether it be unconstitutional or vague speech codes, or the creation of “free speech zones” Michigan universities have faced multiple lawsuits, bad PR, letters from U.S. Congress, and even reduced donations from alumni who are embarrassed by the campus culture and the disdain for free speech—myself included. Education of Members of the Campus Community It is becoming increasingly clear that an education on free speech is sorely needed for all members of the campus community, not just students. Unlike other bills I’ve seen introduced across the country on this issue, this legislation actually requires administrators, faculty, and even police officers to understand the law too. Why is this important? This is important because leadership starts at the top. We can’t expect the freshman student to respect free speech rights on campus if his professors or Dean do not respect free speech rights. Although in recent months the nation has focused its attention on universities like Berkeley, sadly Michigan also has its own free speech problems occurring as well. And the problem isn’t just the students. Free Speech Violations at Michigan Public Colleges and Universities In 1989, the University of Michigan had a speech code struck down that banned speech that “stigmatized” others on the basis of certain characteristics if it created a “hostile” or “demeaning” environment. Ironically, the code was put in place in an attempt to create a better environment for minority students but the minority students were the ones targeted and punished. After that code was struck down you would think this would have alerted all the other public universities in Michigan to reform their codes and ensure compliance with the First Amendment. Unfortunately, it did not and lawsuits continue. In 1995 Central Michigan University had a speech code struck down that prohibited “demeaning or slurring individuals” and using “symbols” or “slogans” with “negative connotations.” In 2015, Western Michigan University settled a lawsuit over its demand that a registered student organization pay a hefty security fee before hosting rapper and social activist Boots Riley. This of course, is very similar to the heightened “security fees” I’ve seen administrators attempt to apply to any speaker who may spark tantrums on campus. But with a new century comes more direct evidence of a desire by some administrators to protect the free speech rights of only some students on campus. For instance, in 2016 the President of the UofM was caught on video encouraging students to tear down flyers they do not like after a series of alleged racists incidents on campus. On the video, the president makes clear he understands he can’t personally tear down signs—he’ll be sued or fired—but encourages the students to tear down the flyers instead. It wasn’t until the video was made public that the UofM President released a statement clarifying the university’s commitment to free expression on campus. Unfortunately, it seems UofM is still using instances of racism to justify when to uphold free speech rights on campus. This is why simply banning things one does not like does not solve the problem. In March of this year, Grand Valley State University (GVSU) settled a free speech lawsuit with the student group "Turning Point USA at Grand Valley State University." GVSU had free speech zones on campus and required students to gain prior permission from university officials before participating in free speech activities within the zone. Under the settlement agreement announced on March 1, the university adopted a revised policy and agreed to pay the legal fees and costs of the plaintiffs. What is sad about this example is GVSU, like every public institution in the country, was contacted by numerous groups to revise the unconstitutional policies but refused. It took a lawsuit and over $11,000 in the settlement to finally convince GVSU that the First Amendment applies to it as well. Or, take the example of Kellogg Community College. Kellogg is in the middle of a free speech lawsuit right now. In this incident, a student was allegedly outside of the “free speech zone” doing the unconscionable—passing out the Constitution. She was arrested for trespassing as a result. Yes, you heard that right. An American college student was arrested by campus police because administrators decided a student can only pass out constitutions in a specific geographical location. I encourage all of you to go online and watch the video of the young woman’s arrest. It is clear that if any campus police officer or administrator thinks it is okay to arrest a student for passing out a constitution, there is a major problem on campus that begins well before a freshman arrives for orientation. These examples highlight why it is incredibly important to hold public officials accountable and ensure they understand the rules and how to enforce them fairly and objectively. If the Michigan legislature is going to pass legislation to protect speech on campus, it must ensure those charged with enforcing the rules understand them as well. This is especially important in any bill that requires mandatory discipline of students and expulsion after two free speech incidents. Upholding the Law without Chilling Speech The First Amendment restricts the government, not the people. In legal terms, this basically means the state can only restrict speech if it has a compelling interest, it does it in the least restrictive means possible, and it leaves room for alternative forms of expression. I am glad to see this bill makes clear that a counter protest in and of itself does not infringe on the free speech rights of others. Why is this important? Well, let’s look at a hypothetical example. Let’s say a student group decides to host a guest speaker from Planned Parenthood. Other bills I’ve seen introduced across the country simply state a student must be punished for “infringing” on a free speech event. Under those bills, a pro- life student group that holds a counter protest may be hauled into a disciplinary hearing and punished because the administration defined “infringe” as any counter protest. And believe me, any counter demonstration or protest is going to lead to at least one report to the thought police, especially on Michigan campuses that have decided to implement “Bias reporting systems.” This bill makes clear that the university must prove there was an actual material and substantial infringement on the protest before the student or student groups could be punished. It is important to make clear that no student will face a disciplinary panel or punishment for simply exercising their free speech rights. Free speech is more than theory. It is more than open-ended talking points about “the free exchange of ideas.” Free speech is messy. Free speech isn’t always polite and it isn’t always civil—and that’s okay. As I close, let’s also remember the hundreds of thousands of students who are doing things the right way: the students who are working behind the scenes to reform their campus speech codes; the students who are reaching out to other student groups to stand together against administrators who want speech restricted to tiny areas of campus; and the students who march to the administration building to demand changes to curricula and who are engaged in peaceful demonstrations.
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