Max Brantley’s School of Red Herrings

If you are a college student, Max Brantley of the Arkansas Times does not appear to care whether or not your free speech rights are protected. At least, that’s what I glean from his recent blog post attacking a campus free speech bill that may be considered by the legislature this year. What is unclear is exactly why Brantley is so upset with this legislation.

The legislation would ensure that public high schools and institutions of higher education do not infringe upon students’ free speech rights. As we’ve seen across the country, there are many instances of schools limiting the rights of students to speak, to organize, or to invite speakers. These outbreaks of censorship are usually based on the theory that some speaker is considered offensive by some students. This legislation would prohibit Arkansas schools from suppressing free speech or from shuffling it to some obscure place on the campus under the guise of a “free speech zone.”

The bill in question is SB 118, sponsored by Sen. Kim Hammer. That’s part of Brantley’s problem, it seems. He spends a paragraph in his blog post attacking Sen. Hammer. The essence of that argument is that Sen. Hammer is such a bad guy that anything he sponsors is automatically suspect. Nonetheless, I am certain that Brantley is aware that the substance of a bill is what legislators vote on and what is made into law. Even bad people can write good laws, and even someone with the best character in the world can support legislation that is severely flawed.

Brantley does raise some substantive issues with the bill. One of them is that “Anybody could say anything anytime anyplace, in other words. Anyone who believes they were denied access could sue and win attorney’s fees.” Admittedly, this is a substantive claim, but it is also false. Brantley’s accusation leads me to believe he has not read the bill, because it explicitly says that schools “may impose reasonable time, place, and manner restrictions” as long as they don’t interfere with the First Amendment or other aspects of the legislation. That is, schools may prohibit students from marching through dormitories and chanting during sleeping hours or from forcing professors to listen to partisan diatribes during class. These “time, place, and manner” restrictions cannot be based on the content of speech, but can impose reasonable restrictions so that speech does not disrupt other activities. That is a long-established principle of American constitutional law.

Another substantive issue Brantley raises is that the bill would “address a problem that doesn’t exist in Arkansas.” Again, this is a substantive claim, but it is also objectively false. Perhaps Brantley is genuinely unfamiliar with Ashlyn Hoggard’s suit against Arkansas State University.

(Don’t assume that I think all of Brantley’s concerns are substantive, though: his closing argument against the bill is an angry, bitter serving of word salad that criticizes legislators who favor tort reform, the regulation of abortion, and the possible impeachment of a district court judge. Notably, this has nothing to do with the bill but everything to do with Brantley’s negative feelings towards Kim Hammer.)

For other substantive objections to the bill, Brantley outsources his objections to the American Association of University Professors (AAUP). I see why he did so, since the AAUP shares Brantley’s devil theory of legislation — namely, that any piece of legislation is immediately suspect if some disfavored individual or organization backs it. The long AAUP piece on campus free speech bills spends the bulk of its argument attacking not the content of the bill but the groups that support it. Any competent university professor teaching freshman comp would give a student submitting an assignment with this kind of argument a low grade, but apparently AAUP has lower standards for political advocacy than for scholarship.

When the AAUP does begin to discuss the text of the legislation, it does something strange. First, it says that the groups pushing it are focused on the outcome of promoting conservative speech. The AAUP rightly points out that free speech protection is based on process – ensuring that government institutions and processes operate in a way that do not infringe upon speech. But then AAUP comes up against the actual text of the campus free speech bill, with the AAUP noting “its apparent reliance on procedural mechanisms (such as defining acceptable forms of protest).” So AAUP acknowledges that the campus free speech bill focuses on the process for protecting speech and does not do something like prioritize conservative speech on campus. But then it faults the bill for being focused on addressing recent incidents that affect conservative speakers. That is a nonsensical objection. Obviously if there are recent incidents that illustrate that some schools are not protecting free speech, then recent legislation will be relevant to those incidents. Absurdly, AAUP then faults the bill for “insisting on outcome rather than process,” which is in no way supported by the text of the legislation. In fact, just a few sentences previously AAUP noted that the legislation had a “reliance on procedural mechanisms.”

It is clear that AAUP is grasping at straws to oppose campus free speech bills because its dislikes who proposed them. Much like Brantley, its focus seems not to be enacting sound policy but opposing anything an ideological opponent puts forth. I will admit, though, that Brantley’s method of bill evaluation would save us all a lot of time — I guess we could all follow Brantley’s lead and make bill evaluations based on how much we like or dislike the sponsors; we don’t even have to read any of the bills!

You can dislike Sen. Hammer if you want. You can dislike the national organizations that support campus free speech bills. But that animus is not a sound basis upon which to attack SB 118. Those who do not think that Arkansas students more robust procedures to protect their free speech will have to do better than Max Brantley’s empty critique of Sen. Hammer’s legislation.

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