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University Gazette

The University of North Carolina at Chapel Hill

Employee Forum, Faculty Council review proposed BOG free speech policy

Eric Muller

A proposed system-wide campus free speech policy is raising questions and concerns from faculty and staff members alike. Delegates of the Employee Forum spent nearly an hour on Nov. 1 detailing their concerns and on Nov. 10 Faculty Council members posed several questions to law professor Eric Muller when he provided an overview of the policy.

The discussions were organized so that faculty and staff comments could be forwarded to the UNC Board of Governors before it considers the policy at its Dec. 15 meeting.

The BOG must develop a policy as part of the “campus free speech act” that the N.C. General Assembly passed this summer. With this law, the National Review reported, North Carolina became the first state to enact model legislation on campus free speech proposed by the Goldwater Institute, an Arizona-based conservative and libertarian public policy think tank.

The policy is still a work in progress, Muller told Faculty Council, and some of the language in it continues to change even after the BOG’s university governance committee voted unanimously Nov. 2 to approve the policy. The most recent draft came to the Faculty Executive Committee Nov. 6, and “because the target is still moving, and time is very short, the FEC decided to inform Faculty Council rather than attempt a resolution,” Muller said. At the Employee Forum, delegates posed their questions and concerns to a panel of campus leaders that included Employee Forum Chair Shayna Hill, Faculty Chair Leslie Parise, Associate Vice Chancellor for Human Resources Linc Butler and Vice Chancellor and General Counsel Mark W. Merritt.

Delegate Claire Counihan, program coordinator at the Carolina Women’s Center, expressed concern about a “three strikes” provision in the law and how the threat of punishment could impede rights of free speech.

This section on the “consequences of substantial disruption” also concerned faculty members. For a second offense, students or employees could be suspended and for a third offense, students could be expelled or employees dismissed. It’s unclear, Muller said, if these punishments could be made instead of or in addition to the disruption’s legal consequences.

Mark Merritt

“What the policy tries to carve out for potential discipline is speech that would not be protected by the First Amendment,” Merritt said.

Merritt said the concern the General Assembly attempted to address with the new law is the “heckler’s veto” – a form of speech not protected by the First Amendment – in which an individual or group acts in such a way as to interfere with the speaker’s right to speak and the audience’s right to hear.

But, as Muller pointed out to the Faculty Council, a protester engaged in an “acceptable form of dissent” would be protected by the policy.

Midway through the Employee Forum discussion, Delegate Ricky Roach of Energy Services raised his hand to speak. “As is often the case,” he said, “we are overcomplicating this. I learned as a kid that, when you are speaking, I listen, and when you are done speaking, I can talk.”

The same rule should apply in a public forum. Shouting down a speaker demonstrates fear and intolerance, Roach said.

“If you think a person is a fool, you let them speak and let them demonstrate they are a fool. … I laugh at this notion of tolerance and co-existence if it means you can’t stand to hear an opinion that is different than your own.”

“That is incredibly well stated,” Merritt said in response. “The Supreme Court has repeatedly said the antidote to hate speech is good speech.”

Faculty Council members and administrators voiced concerns about “any speaker” being allowed to come on campus. Muller pointed out that the speaker would have to be invited to campus by a students or faculty and that the University can exclude people from campus to prevent disruption to “instruction and research functions.” The University can also “restrict types of expression that are not protected under the First Amendment,” he said.

In many cases, speakers who have been shouted down on college campuses have used the protests to generate publicity for their ideas and bigger audiences to hear them. As hard as it may be to do, Merritt suggested, “the thing to do with hate speech is you turn your back to it, or you listen to it and you counter it with good speech.”