In 2019, the Alabama Campus Free Speech (ACFS) bill was proposed and passed by the Alabama Legislature. Then-State Representative Matt Fridy’s bill was developed by Eagle Forum of Alabama (EFA), endorsed by state and national organizations, and was widely praised by many defenders of the First Amendment.
The ACFS bill not only contained strong protections for free speech at Alabama’s public colleges and universities but also included measures to ensure protections by giving the Governor oversight and the Attorney General enforceability. In addition, the act created a private right of action for students and faculty against a college or university in the case of a violation of free speech policies.
Recently, the Alabama Supreme Court heard a case involving violations of a student’s right to free speech at the University of Alabama at Huntsville (UAH). However, UAH is only one of dozens and dozens of Alabama institutions of higher education that have openly failed to comply with the 2019 law. The ACFS Act required schools to publish their policies, provide a description of free speech policies at student/faculty orientations, disseminate policies to all members of the campus community, include the policies in student instructional handbooks and publish their policies to the general public on institutional websites.
Due to the importance of protecting free speech on Alabama college and university campuses, the legislation gave the Governor multiple levels of oversight. The law delineated clear parameters and an implementation schedule. The ACFS Act required all boards of trustees of institutions of higher education to submit implementation plans to the Governor’s office by September 29, 2020 (they didn’t). In addition, schools were supposed to adopt new free speech policies consistent with the law by January 1, 2021 (they didn’t do that either). Due to the fact that our Governor serves as president of the boards of trustees of each of the state’s public institutions of higher education, her office was tasked with a portion of the implementation of the ACFS Act. The Governor’s office was slated to receive ongoing reports from each board regarding future changes to the implementation of their free speech policies.
It’s now the end of 2022, and Alabama schools are non-compliant.
Not one school submitted an implementation plan to the Governor or has given her updates in regard to their policies. More importantly, most boards have not even adopted free speech policies to comply with the 2019 law. Without clear policy guidelines in compliance with the ACFS Act, colleges and universities have unlawfully taken liberties in the development and maintenance of their own campus policies that fail to protect free speech. That is exactly what happened at UAH.
In June, the Alabama Commission on Higher Education (ACHE) set up a webpage for “Freedom of Speech Policies.” However, there were no free speech policies linked. In response to an email sent out by Dr. Jim Purcell in August, about a dozen universities provided annual ACFS policy violation reports to ACHE which were linked in the webpage. They reported no violations. That’s strange since most universities haven’t updated their policies to comply with the law. The UAH lawsuit wasn’t even noted on a violation report. The University of Alabama System linked copies to university policies as evidence of compliance. Unfortunately, those campus policies contain provisions that actually violate free speech protections as delineated in the ACFS Act by instituting “free speech zones” and registration requirements. It is a farce to report that there are no violations without published written policy standards and it is misleading, at best, to label a website as “Free Speech Policies” when there aren’t any compliant free speech policies linked, noted or being implemented.
In September of this year, EFA called attention to this situation and requested the Governor ask each board of trustees to adopt and widely publish a clearly written policy that conforms to the requirements of the Act. Further, EFA asked that institutions be required to re-examine, clarify and republish their free speech policies in conformity with the law. EFA requested that policies be made easily accessible to the Governor’s office, the Alabama Legislature, the public, on each campus webpage, and to the campus community through dissemination procedures in accordance with the requirements of the legislation.
Governor Ivey and her office responded affirmatively to EFA’s request by letter in October. Under her signature, Ivey expressed that she was proud to sign the Campus Free Speech Act in 2019 and shared EFA’s view of the importance of protecting free speech at public universities and colleges. She rightfully asserted that even unpopular and/or dissenting voices shouldn’t be silenced, and expressed an understanding that some public colleges and universities are not completing the requirements. By copy of her response to EFA, Governor Ivey requested that ACHE make every reasonable effort to achieve full compliance with the Act’s reporting requirements.
In the meantime, the Alabama Supreme Court heard and issued its opinion on the UAH Campus Free Speech case and sent the case back to the trial court. In the lawsuit, Young Americans for Liberty chapter and UAH student Joshua Greer challenged the university’s policy that limits most student speech to small “speech zones” and requires students to obtain a permit three business days in advance to speak on campus about most topics. Both of those requirements are in violation of the Alabama Campus Free Speech Act and the Alabama Constitution. “Alabama state law guarantees all students at public universities can freely speak outdoors on campus grounds. This is a critical measure to ensure that public universities once again become places where intellectual diversity flourishes and all students can engage in the marketplace of ideas,” said Alliance Defending Freedom (ADF) Senior Counsel Tyson Langhofer, director of the ADF Center for Academic Freedom.
The UAH policy designates 20 areas across their campus where spontaneous speech is allowed to occur. Perhaps they need a refresher on what the term spontaneous means. Speech that has to be scheduled, approved by authorities, and/or located in a specific space isn’t free at all. UAH isn’t alone in its misunderstanding of its role or authority.
The Alabama Supreme Court decision was unanimous and, according to EFA general counsel and bill author Margaret Clarke, the court went out of its way to show its intention to honor our state constitution rather than solely addressing the free speech protections afforded to us by the US Constitution. Chief Justice Tom Parker specifically asserted, “To protect individual rights, our country's unique system of federalism contains an important feature: governments are constrained by two sources of constitutional limitation -- state and federal.” Parker commended the Alabama Center for Law and Liberty for their brief regarding the role of the Alabama Constitution and used the opportunity to issue warnings, cautions and specific instructions to the lower court regarding the state’s obligation to protect the rights specifically conferred to Alabamians under the Alabama Constitution.
Parker’s opinion stated, “Further, our Alabama Constitution has a different text, history, and context from the federal constitution. It contains protections for life, liberty, and property that are not dependent on the meaning and scope of its federal counterpart. To name just a few, our State constitution protects religious freedom, Art. I, §§ 3-3.02, Ala. Const. 1901 (Off. Recomp.), the right to bear arms, § 26, the right to compensation for takings of private property, § 23, the right to trial by jury, § 11, the right to be free from unreasonable searches and seizures, § 5, and the right to due process in criminal cases, § 6. Our constitution also provides protections without any federal analog, such as for "the sanctity of unborn life and the rights of unborn children, including the right to life."
In Alabama, we dare defend our rights and our right to free speech is on solid, not previously approved ground. Our legislature, Governor and Supreme Court are in one accord on this matter; let’s give credit where credit is due. However, very little credit is due to the bureaucratic morass that has ignored their legal responsibility to manage compliance with the ACFS Act and the many public higher education institutions that are intentionally flouting state law. Their lack of commitment to free speech on their campuses and their lack of compliance with the 2019 legislation is completely unacceptable, and both must be rectified immediately.
Free speech is a value that all Alabamians should embrace. Unrestricted speech on college campuses should be a foundational educational principle. Without dissent, there is little discussion. Differences of opinion and the ability to freely express them are tantamount to the educational experience. In fact, the ability to freely express differences of opinion is fundamental to both learning and life. I believe in objective truth, but the most effective argument for universal free speech is the internalization of the understanding that opinions we find offensive deserve the exact same protections as the ones we accept. Further, there is no such thing as misinformation, only the intentional suppression of both correct and incorrect information.
You cannot put a fence around free speech: we all have the right to be wrong.
Stephanie Holden Smith is an experienced policy analyst, political commentator, and public speaker. Smith has worked and volunteered in Governmental Affairs in Alabama since 1997, including lobbying for a Fortune 500 company and serving as Deputy Director of Finance for the State of Alabama. She is currently the principal of Thatcher Coalition LLC. To contact Stephanie, please go to http://thatchercoalition.com.
The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information Commentary@1819News.com.
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