by Jim Manley

America’s campus free speech crisis shows no signs of stopping, with hecklers continuing shout downs and administrators continuing to do nothing. Yet there is a new ray of hope from Arizona. The Arizona Senate just voted to send a bill protecting campus free speech to Governor Ducey, but some confusion over the language has caused unnecessary controversy.

The venerable campus free speech group FIRE published a blog post by Tyler Coward that selectively quotes from HB 2563, creating the impression that the bill allows colleges to restrict student speech. Nothing could be further from the truth.

Coward claims that HB 2563 says “A university or community college may restrict a student’s right to speak.” If that were true, it should send up alarm bells—but that is a gross misreading of the bill.

The quoted subsection drops important context, which changes the meaning of the bill. The bill allows universities to regulate speech (the quoted subsection), but only in certain limited circumstances (the missing context).

Here is what the bill really says:

A. A university or community college shall not MAY restrict a student’s right to speak, including verbal speech, holding a sign or distributing fliers or other materials, in a public forum. 

B. A university or community college shall not impose restrictions on the time, place and manner of student speech that occurs in a public forum AND Is protected by the first amendment to the United States Constitution unless the restrictions:

1. Are reasonable.
2. 
Are justified without reference to the content of the regulated speech. 
3. Are narrowly tailored to serveNECESSARY TO ACHIEVE a 
significant COMPELLING governmental interest. 
4. ARE THE LEAST RESTRICTIVE MEANS TO FURTHER THAT COMPELLING GOVERNMENT INTEREST. 
5. Leave open ample alternative channels for communication of the information. 

6.  ALLOW SPONTANEOUS ASSEMBLY AND DISTRIBUTION OF LITERATURE.

The reason for the change from “shall not” to “may” is that the text of the current statute is incoherent. It first says in subsection (A) that “A university or community college shall not restrict a student’s right to speak … in a public forum” but then it explains in subsection (B) that “restrictions on the time, place and manner of student speech in a public forum” are allowed under certain conditions. In other words, the “shall not” in (A) was contradicted by the “unless” in (B). HB 2563 harmonizes the two subsections by changing the “shall not” in (A) to “may.” But the restrictions on university authority in (B) are stronger than ever.

Read out of context, as FIRE’s Coward did, the change to “may” seems bad for free speech. But read in context, the change makes the statute more clear. It amounts to a semantic clarification; “shall not restrict unless” is functionally the same as “may restrict only if.” The new text makes the two subsection coherent and clearly links university authority with strong limits on that authority. The additions HB 2563 makes to subsection (B) ensure that universities can regulate speech in only the narrowest circumstances

Jim Manley is an attorney with Pacific Legal Foundation and senior fellow at the Goldwater Institute.