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The Right Take on Campus

Florida law bans free speech zones, but will it be enforced?

Free Speech Rally
A free speech rally at the University of California, Berkeley.

Florida Governor Rick Scott signed the Excellence in Higher Education Act on Sunday which reinforces college students’ rights to free speech at public colleges and universities. Multiple schools within Florida will need to change their campus policies in order to be in compliance.

According the Foundation for Individual Rights in Education, the Sunshine State joins Virginia, Missouri, Arizona, Kentucky, Colorado, Utah, North Carolina, and Tennessee in passing legislation to ban public colleges and universities from relegating student expression to free speech zones.

Dr. Marshall DeRosa, a professor of Political Science at Florida Atlantic University, says he is supportive of the new law for several reasons.

“It removes ‘free speech zones’ which quarantined free speech as if it were some sort of contagion needed to be monitored and contained by university administrators. This devalued First Amendment free speech rights,” DeRosa told Red Alert Politics.

“A person who wishes to engage in an expressive activity in outdoor areas of campus may do so freely, spontaneously, and contemporaneously as long as the person’s conduct is lawful and does not materially and substantially disrupt the functioning of the public institution of higher education or infringe upon the rights of other individuals or organizations to engage in expressive activities,” the provision states.

“A public institution of higher education may not designate any area of campus as a free-speech zone or otherwise create policies restricting expressive activities to a particular outdoor area of campus,” the provision continues.

The section of legislation dealing with speech on campus, referred to as the “Campus Free Expression Act,” specifically defines both free speech zones and outdoor areas. A free-speech zone is defined as “an area on a campus of a public institution of higher education which is designated for the purpose of engaging in expressive activities” and outdoor areas are defined as “traditional public forums for individuals, organizations, and guest speakers.”

At the time of the legislation’s signing, several Florida universities were in possible violation.

Florida State University, for example, currently limits the distribution of literature to a small stretch of campus. Similar policies are on the books at Florida Atlantic University, where students are required to submit materials to the Office of Student Development and Activities for approval before they can be displayed or distributed, and at the University of West Florida, where speech is restricted to one area of campus.

“Requiring advance notice and permitting for exercising free speech rights to use a ‘designated public forum’ is a form of prior restraint on several levels, including providing opportunities to stifle speech that administrators and staff disapprove,” DeRosa says.

It is unclear whether the universities currently in violation of the new law will actively seek to change their codes of conduct to fit the new free speech allowances. Florida State University and Florida Atlantic University failed to respond to Red Alert Politics request for comment on potential policy changes. The University of West Florida told Red Alert Politics that the school is reviewing their current regulations and will “amend regulations impacted by this new law as soon as possible.”

One glaring problem with Florida’s new law is that the legislation still leaves a caveat for administrators to block rallies, protests, and other expressive events as long as they can justify it as content-neutral and provide “ample alternative means of expression.”

The clause states: “A public institution of higher education may create and enforce restrictions that are reasonable and content-neutral on time, place, and manner of expression and that are narrowly tailored to a significant institutional interest. Restrictions must be clear and published and must and provide for ample alternative means of expression.”

While this leeway given to administrators to keep order on campus may seem reasonable, these are the exact justifications administrators have used to shut down free speech on campus in the past, despite students’ expressive activities already being protected under the First Amendment to the United States Constitution and Article I of the Florida State Constitution. Administrators who arbitrarily hold power over students on campus can easily cite this clause as a means to maintain campus policies as they currently exist on the books.

However, the new Florida statute gives students an additional recourse to fight speech suppression. According to a House Message Summary analysis, “The act authorizes action against a public institution of higher education to obtain declaratory and injunctive relief, reasonable court costs, and attorney fees.”

“Under the new law when a university limits free speech under the pretense of a legitimate government interest, e.g., the Heckler’s veto, it is subject to lawsuits and fines. This will incentivize administrators to proceed with caution when limiting free speech on public safety and/or other grounds,” DeRosa told Red Alert Politics.

The legislation text states: “CAUSE OF ACTION.—A person whose expressive rights are violated by an action prohibited under this section may bring an action against a public institution of higher education in a court of competent jurisdiction to obtain declaratory and injunctive relief, reasonable court costs, and attorney fees.”

While the Excellence in Higher Education Act takes major steps in the right direction to better the state of free speech in Florida’s institutions of higher education, the law should not be seen as the final solution. Florida students still face significant administrative biases from the disproportionate funding of campus groups, overburdensome requirements for groups to officially exist on campus, and the distinct limiting of access to speakers who are deemed "too controversial” under the guise of safety.

If the state of Florida is truly looking to bring excellence to higher education, as the overall bill was named, additional steps will need to be made next legislative session.

Read More: Florida is about to eliminate so-called 'free speech zones' on campus