ALEC-Influenced Free Speech Legislation Becomes Law in Louisiana

Louisiana recently took a step in the right direction to protect the First Amendment rights of individuals on public university and college campuses. Democrat Governor John Bel Edwards signed SB364 into law, legislation that passed the Louisiana legislature with bipartisan support. Introduced on February 3, 2018 by Louisiana Senator Rick Ward, the Bill effectively eliminates free-speech zones, designates Louisiana postsecondary institutions as traditional public forums, and implements measures that ensure institutions are held accountable for protecting free speech. Legislators wishing to follow in Louisiana’s footsteps can find a positive starting point in the American Legislative Exchange Council’s model policy: the Forming Open and Robust University Minds (FORUM) Act.

Like the FORUM Act, the Louisiana law eliminates free-speech zones by establishing that any person who wishes to express themselves on a public postsecondary institution campus is permitted to do so. The outdoor spaces of Louisiana’s public colleges are now designated as public forums – a designation every public college should embrace. Further, the law provides narrow guidelines for a college’s ability to restrict free speech; parts of the guidelines however, divert from FORUM’s language, resulting in legal ambiguity.

As pointed out by the Foundation for Individual Rights in Education’s (FIRE) Tyler Coward, the Louisiana law provides two separate standards for time, place, and manner restrictions on campus speech. The first standard permits time, place, and manner restrictions when they are “narrowly tailored in service of a significant institutional interest only when such restrictions employ clear, published, and content-and viewpoint-neutral criteria and provide for ample alternative means of expression.” The statute later sets the time, place, and manner standard where such restrictions are “necessary to achieve a significant institutional interest.”

The ALEC model policy includes one clear standard for time, place, and manner restrictions. Under the FORUM Act, institutions may enforce restrictions that are “narrowly tailored in service of a significant institutional interest only when such restrictions employ clear, published, content, and viewpoint-neutral criteria, and provide ample alternative means of expression.” To avoid vagueness and uncertainty, the FORUM Act has been vetted by a coalition of experts in campus litigation.

While there may be language technicalities the legislature should clarify, the Louisiana law will serve to hold public educational institutions accountable for protecting campus free speech. Institutions included in the law must report to the governor and legislature their progress in implementing the law’s provisions by January 1, 2019. In addition, the institutions must submit an annual report to the governor and legislature detailing barriers or incidents against free speech on their campus and what actions the institution is taking to overcome those challenges. But in respect for these institutions’ academic freedom, like FORUM, there is no mandated creation of an outside committee. Universities can determine for themselves the best means of providing this information to the legislature. A supplemental annual report is also required of institutions that are sued for alleged First Amendment violations.

These positive steps towards sharing information are part of the FORUM Act and play a free market-style role in upholding free speech rights. The public will be able to freely access these reports, which are required to be posted on each school’s website. When students and parents have more information about a school’s free speech reputation, their decision to attend is better informed.

This act is a positive step towards protecting free speech on college campuses in Louisiana. Eliminating free speech zones, ensuring all students, regardless of ideology, can freely express themselves on campus, and holding public institutions of higher learning accountable are all necessary for fostering an educational environment where college students can learn, grow, and develop without fear of retribution for their viewpoints.

The ALEC model policy, Forming Open and Robust University Minds (FORUM) Act, contains many provisions similar to the ones included in the Louisiana law. Accordingly, the FORUM Act can help other states who wish to follow suit and take steps to protect students’ First Amendment rights.

If you are interested in learning more about campus speech or the Forming Open and Robust University Minds (FORUM) Act, please contact Shelby Emmett, Director of the ALEC Center to Protect Free Speech.