FLORIDA’S 2018 CAMPUS FREE EXPRESSION ACT ELIMINATES “FREE SPEECH ZONES” ON PUBLIC UNIVERSITY CAMPUSES

May 18, 2018

    A new Florida law, effective March 11, 2018, creates the “Campus Free Expression Act.”  Section 6 of Chapter 2018-4, Laws of Florida, enacts Section 1004.097 of the Florida Statutes.

    The new law declares that outdoor areas of a public college or university campus which are generally accessible, such as walkways, grassy areas and similar common areas, are considered Traditional Public Forums where individuals, organizations and guest speakers may freely engage in expressive activities, so long as their conduct is lawful and does not disrupt the functioning of the school or infringe the rights of others to engage in expressive activities.  The right to free speech under the First Amendment receives the greatest protection in a Traditional Public Forum, where the Government’s authority to restrict or prohibit protected speech is severely limited.

Under the new law, a public institution of higher learning may not designate an area of campus as a “Free Speech Zone” and exclude expressive activities from other areas of campus, except in limited circumstances.  In addition, students, faculty and staff of the school are prohibited from disrupting scheduled or reserved activities. The new law creates a cause of action for a person whose expressive rights have been violated to bring a lawsuit for declaratory and injunctive relief, reasonable court costs and attorney fees against the public college or university for violations of the new law.

    This bill was approved by Governor Scott and became law on March 11, 2018.

Here is the full text of the Campus Free Expression Act:

Section 1004.097, Florida Statutes, is created to read:

1004.097 Free expression on campus.—

(1) SHORT TITLE.—This section may be cited as the “Campus Free Expression Act.”

(2) DEFINITIONS.—As used in this section, the term:

(a) “Commercial speech” means speech in which the individual is engaged in commerce, the intended audience is commercial or actual or potential consumers, and the content of the message is commercial.

(b) “Free-speech zone” means an area on a campus of a public institution of higher education which is designated for the purpose of engaging in expressive activities.

(c) “Material and substantial disruption” means any conduct that intentionally and significantly hinders another person’s or group’s expressive rights. The term does not include conduct that is protected under the First Amendment to the United States Constitution and Art. I of the State Constitution, including, but not limited to, lawful protests and counterprotests in the outdoor areas of campus or minor, brief, or fleeting nonviolent disruptions that are isolated or brief in duration.

(d) “Outdoor areas of campus” means generally accessible areas of a campus of a public institution of higher education in which members of the campus community are commonly allowed, including grassy areas, walkways, or other similar common areas. The term does not include outdoor areas of campus to which access is restricted. Ch. 2018-4 LAWS OF FLORIDA Ch. 2018-4 7 CODING: Words stricken are deletions; words underlined are additions.

(e) “Public institution of higher education” means any public technical center, state college, state university, law school, medical school, dental school, or other Florida College System institution as defined in s. 1000.21.

(3) RIGHT TO FREE-SPEECH ACTIVITIES.—

(a) Expressive activities protected under the First Amendment to the United States Constitution and Art. I of the State Constitution include, but are not limited to, any lawful oral or written communication of ideas, including all forms of peaceful assembly, protests, and speeches; distributing literature; carrying signs; circulating petitions; and the recording and publication, including the Internet publication, of video or audio recorded in outdoor areas of campus. Expressive activities protected by this section do not include commercial speech.

(b) 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.

(c) Outdoor areas of campus are considered traditional public forums for individuals, organizations, and guest speakers. 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.

(d) 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, except as provided in paragraph (c).

(e) Students, faculty, or staff of a public institution of higher education may not materially disrupt previously scheduled or reserved activities on campus occurring at the same time.

(4) 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.

Click on the following link for the full text of 2018-4 Laws of Florida: http://laws.flrules.org/2018/4

Attorney Richard “Jake” Jackson has been in private practice in Volusia County serving the legal needs of the Central Florida community since 1985.  Call us at (386) 738-1111 to schedule a consultation in our DeLand office.

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