Wisconsin lawmakers continue heated debate on campus free speech bill

By Yvonne Kim, The Cap Times

Seven speakers testified Thursday at a public hearing on a Wisconsin Assembly bill that more strictly defines and sets mandatory punishments for free speech disruptions on the state’s college campuses.

Representatives on the Assembly Committee on Colleges and Universities engaged in nearly four hours of back-and-forth about Assembly Bill 444, which requires University of Wisconsin schools to declare protection of free speech rights and establish disciplinary sanctions for “violent or other disorderly conduct that materially and substantially disrupts the free speech of others.” Six people, three formally for and two against, spoke at the public hearing at the University of Wisconsin-Oshkosh.

Bill cosponsors Rep. Cody Horlacher, R-Mukwonago, and Sen. Chris Kapenga, R-Delafield, were present to discuss the bill. Since its original introduction in September, Horlacher and committee chair Rep. Dave Murphy, R-Greenville, have introduced an amendment that extends the bill to the technical college system and defines “materially and substantially disrupts.”

Kapenga said that universities in Wisconsin and across the country have seen free speech “targeted and suppressed.”

“Part of this growing trend teaches young people that disrupting a speech or acting with violence can shut down anyone from having their voice heard or censor speech you do not agree with,” Kapenga said. “Our bill will address these concerns, as well as strengthen our First Amendment rights on university campuses and technical colleges.”

The Foundation for Individual Rights in Education, which ranks hundreds of free speech policies across the country, has given no green light ratings to any Wisconsin institution. A red or yellow light means the school’s policy is blatantly or at risk of being unconstitutional.

FIRE legislative and policy director Joe Cohn did not speak for or against the bill, but called it “a mixed bag” and urged legislators, if they have the time, to continue working on it.

“There are major parts of this bill that get things exactly right and do it really well,” he said. “(Other parts) really don’t cut the mustard.”

AB444 is a reintroduction of a nearly identical bill that died in the Senate in 2017, although the UW Board of Regents passed similar policies later the same year. In October, the board voted to make punishments for free speech violations not optional, but mandatory. Students are to be suspended after two violations and expelled after three.

AB444 would codify the regulations into state law, although Gov. Tony Evers has said he would veto the legislation.

Discussion of the bill, which would require schools to explicitly cite their commitment to defending free speech, included reference to a University of Chicago welcome letter in 2016 that opposed trigger warnings and safe spaces. When Kapenga said University of Chicago policies have not resulted in any threats to free speech, Rep. Katrina Shankland, D-Stevens Point, called it a logical fallacy.

“You can’t measure speech that doesn’t exist due to the chilling of free speech,” Shankland said. “You can’t measure who didn’t say what because of fear of intimidation in Chicago ... You can’t measure if it was effective, because you don’t know who it silenced.”

Shankland added concerns that the bill would allow anyone to anonymously report violations without reasonable cause. She called it a “guise” of free speech protection that will ultimately take conversations off the table or harm people with the threat of anonymous reporting. 

Former Regent Tim Higgins, however, testified that the bill “doesn’t go far enough.” Not only should it require penalties for convicted students, but it should also establish a separate committee to review reports.

“My complaint is going to be heard by students, faculty and staff of the university that has every reason in the world not to embarrass itself by putting one of its students on the carpet for having created a disruption and violated my rights,” Higgins said. “We have the fox guarding the hen house."

Though the bill has roiled students, faculty and staff across campuses, much of the discussion is largely abstract and syntactical. Still, Victor Forberger of the State Bar of Wisconsin's Civil Rights and Liberties section spoke against the legislation, saying any attempt at free speech regulation will be subject to “strict scrutiny by the courts” and must be “narrowly tailored.”

“I understand the purpose of this bill. I understand the heckler’s veto, which this bill is essentially trying to regulate, is a real problem,” Forberger said. “But it’s also one of the most difficult things in First Amendment law to deal with ... Trying to do a one-size-fits-all on the heckler’s veto is going to be extremely problematic.”

Forberger said he thinks the bill could simply encourage universities and professors not to engage in potentially risky activities or invite speakers altogether.

At a university committee meeting Monday, UW-Madison Police Chief Kristen Roman said “we’ve not even come close” to seeing students potentially affected by sanctions.

“We’re not seeing that there has been a chilling effect, but that’s something that we’ve heard concerns about,” Roman said. “We understand that to be the case, so we’re really open to hearing if that’s an experience that people have been seeing.”