House Bill 1073 purports to protect free speech on South Dakota’s public universities and vo-techs. However, the roster of arch-conservative sponsors suggests HB 1073 is really yet another right-wing slap at higher education.
HB 1073 piles a lot of new words into statute for purposes that already appear to be covered by the First Amendment, Board of Regents policies on free speech on campus, and case law. Section 3 rather boldly deems any outdoor area of a public campus to be a “public forum,” which would appear to annul Board of Regents Policy 6:13, which says its facilities and grounds are “not open to the public for assembly, speech, or other activities as are the public streets, sidewalks, parks or seats of government*.” But Sections 3 and 4 then reauthorize the time, place, and manner restrictions and distinctions between the general public and “campus community” that current law and policies impose. HB 1073 defines “campus community” to include “invited guests” of students or staff, which suggests that HB 1073 is trying to make it easier for members of the public to stage protests on campus. However, the language of HB 1073 is sufficiently vague that we could see all sorts of lawsuits trying to sort out the extent to which our public institutions can govern their own campi.
And maybe a legal morass for universities and vo-techs is what HB 1073’s sponsors want. Section 8 authorizes any person or student group to sue a public university or vo-tech for violations of this new act and to use this act as a defense or counterclaim against any disciplinary action.
The bill also imposes new and I would contend superfluous reporting requirements on the schools. Section 5 requires new pages in the schools handbooks, websites, and student orientation programs on their free expression policies. Section 6 requires the schools to develop new staff training materials on free expression. Section 7 requires schools submit lengthy reports to the Governor, the Senate and House Education committees, and, strangely, the Joint Committee on Appropriations detailing “any barriers to or incidents of disruption of free expression… actions the institution is taking to promote and ensure intellectual diversity and the free exchange of ideas… alleged violation[s] of any person’s rights under the First Amendment…” and other information the school thinks relates to this act. The schools also need to post all of that information online and rejigger their websites to ensure each report can be accessed “by use of not more than three links.”
I’m not sure what problem HB 1073 is trying to solve that can’t already be solved by normal First Amendment recourse. But the right-wing sponsorship of this bill—all Republicans and mostly yahoos: leads Rep. Michael Clark and ALECky Senator Jim Stalzer, co-sponsors DiSanto, Frye-Mueller, Haugaard, Monroe, Nelson, Netherton…—makes me think HB 1073 is more intended to tie campus administration in knots and provide cover for racist punks like Identity Evropa to pollute our campi with their anonymous hate speech. Anytime people like Michael Clark and Lynne DiSanto say they are promoting diversity (see Sections 1 and 7), you can be sure they are playing some kind of trick.
That said, if HB 1073 means I can carry nominating and ballot question petitions on campus without getting Northern’s approval (and Section 2 does mention circulating petitions) and if the next great pipeline protest can demonstrate on Sylvan Green and in front of Old Main without the Regents calling the cops, then hey, let’s make our campi public fora. (I’ll definitely support this bill if someone in committee will amend it to include both of those plurals in one sentence!) But Sections 5–8 are needless bureaucracy meant to punish our universities, and the other sections should be viewed with keen suspicion not as pro-First Amendment measures but as anti-intellectual sneak attacks.
*Hey, that reminds me, Rep. Clark: how about an amendment declaring the galleries of the House and Senate as free speech zones where citizens may freely counter-demonstrate? What about the Governor’s mansion, or city parks, or high school, or outdoor stadiums?