To: UNC Board of Governors

From: UNC Faculty Assembly

Re: BOG Draft Free Speech Policy
Date: October 16, 2017

Introduction

As faculty of the University of North Carolina, we affirm that the education of our students is our
highest priority. With this in mind, it is imperative that the draft policy be viewed in terms of the
impact it will have on our students and our ability to foster the knowledge, intellectual curiosity,
civic and community engagement that we strive to nourish through our institutions. The policy
seemingly places an emphasis on the freedom of those who visit the campuses of the system over
the students and the faculty.

Free speech is uncomfortable at times but tolerance must be afforded to all viewpoints. While
certain behaviors are excessive and have no place on our university campuses, the draft policy is
not specific enough to provide fairness and clarity about what behavior will be deemed excessive.
Two of the primary functions of the University of North Carolina and each of its constituent
institutions are discussion and debate.1 This policy undermines those functions by stifling
discussion and debate that is in opposition to presentations on system campuses. We agree with
the section of the draft policy that states: It is not the proper role of any constituent institution to
shield individuals from speech protected by the First Amendment, including, without limitation,
ideas and opinions they find unwelcome, disagreeable, or even deeply offensive.2 This should
also apply to invited speakers as well. Our faculty and students should not receive less protection
than presenters and guests that present on the campuses.

Recommendations

1. Eliminate the use of N.C.G.S. 14-288.4 to define a material and substantial disruption.

2. Modify Section V. Speech and Expression Not Protected by the Policy; Subsection E. An
action that substantially disrupts or substantially interferes with the function of the
constituent institutions. The language of the statute in this section does not include
substantial interference and is this not required in this section.

3. Modify Section VII. Consequences for Violation of Policy. Eliminate:

A substantial disruption or substantial interference is any action that qualifies
under Section IV of this policy. Such actions include protests and demonstrations
that materially infringe upon the rights of others to engage in and listen to
expressive activity when the expressive activity (1) has been scheduled pursuant to
this policy or other relevant institutional policy, and (2) is located in a nonpublic
forum.

1
Free Speech and Free Expression Within the University of North Carolina System, Section II, paragraph 3
2
Free Speech and Free Expression Within the University of North Carolina System, Section II, paragraph 3
 Though identified on the draft as required by the legislation, subsection 7 of the legislation
includes the following language:

The constituent institution shall implement a range of disciplinary sanctions for

anyone under the jurisdiction of a constituent institution who substantially
disrupts the functioning of the constituent institution or substantially interferes
with the protected free expression rights of others, including protests and
demonstrations that infringe upon the rights of others to engage in and listen to
expressive activity when the expressive activity has been scheduled pursuant to
this policy or is located in a nonpublic forum.

The addition of the reference to the defining of substantially disrupts or substantially

interferes was added in the draft policy and is not included in the legislation. For the
reasons described below, specifically, the ambiguous nature of how this section could be
applied to limit free speech, this section should be excluded from the Section A.
Disciplinary Sanctions.

Discussion and Analysis

There is wide latitude for interpretation of laws. This should be considered when drafting a policy
that limits a fundamental right protected by the U.S. Constitution. A particularly troubling aspect
of this draft is the use of N.C.G.S. 14-288.4 as a way to define material and substantial
disruption. The use of this statute to determine if a permitted assembly or spontaneous
expressive activity triggers the punishments outlined in this policy may be used to effectively
prohibit all forms of unwelcome speech. The relevant portions N.C.G.S. 14-288.4 which most
affect all forms of discussion and debate are listed below.

Defining Material and Substantial Disruption Using the 14-288.4 Policy Severely Limits Free
Speech

14-288.4. Disorderly conduct.3

(a) Disorderly conduct is a public disturbance intentionally caused by any person who does
any of the following:

(1) Engages in fighting or other violent conduct or in conduct creating the threat
of imminent fighting or other violence. Creating the threat of imminent fighting
or other violence is very subjective. If there are two groups on campus with
opposing viewpoints, and one is deemed threatening and the other is not,
students or faculty creating the supposed threat will be punished based on the
policy. This limits free speech.

3
N.C.G.S. 14-288.4
 (2) Makes or uses any utterance, gesture, display or abusive language which is
intended and plainly likely to provoke violent retaliation and thereby cause a
breach of the peace.

Depending on the group presenting and the subject matter presented, violent
retaliation could be provoked by a variety of acceptable forms of free speech.

Sections (3) and (4) omitted.

(5) Shall, after being forbidden to do so by the chief administrative officer, or the
officer's authorized representative, of any public or private educational institution:

a. Engage in any sitting, kneeling, lying down, or inclining so as to obstruct

the ingress or egress of any person entitled to the use of any building or
facility of the institution in its normal and intended use; or

b. Congregate, assemble, form groups or formations (whether organized

or not), block, or in any manner otherwise interfere with the operation or
functioning of any building or facility of the institution so as to interfere
with the customary or normal use of the building or facility.

This language is too broad to be used as a basis for determining whether protected
free speech constitutes a material and substantial disruption. If assembly in any
manner interferes with the function of the building, nearly every type of assembly
may fall under this language.

(6) Disrupts, disturbs or interferes with the teaching of students at any public or
private educational institution or engages in conduct which disturbs the peace,
order or discipline at any public or private educational institution or on the
grounds adjacent thereto.

The exercise of free speech will likely disrupt or disturb the order on the grounds
of an institution. Using this section to define material and substantial disruption
will substantially limit free speech.

Excluding Broadly Defined Speech as Unprotected Severely Limits Free Speech

V. Speech and Expression Not Protected by Policy4

Except as further limited by this policy, constituent institutions shall be allowed to restrict speech
and expression for activity not protected by the First Amendment under State or federal law,
including but not limited to all of the following:

4
Free Speech and Free Expression Within the University of North Carolina Draft Policy, Section V.,
Subsection E.
E. An action that substantially disrupts or substantially interferes with the function of the
constituent institutions.

The language of the statute in this section does not include the term substantially interferes. The
addition of this language adds more ambiguity to what forms of speech will be deemed
unprotected and serves only to further limit free speech.

Language on Disciplinary Actions Should be Limited to the Constituent Institutions

Modify Section VII. Consequences for Violation of Policy. Eliminate:

A substantial disruption or substantial interference is any action that qualifies under
Section IV of this policy. Such actions include protests and demonstrations that materially
infringe upon the rights of others to engage in and listen to expressive activity when the
expressive activity (1) has been scheduled pursuant to this policy or other relevant
institutional policy, and (2) is located in a nonpublic forum.

Though identified on the draft as required by the legislation, subsection 7 of the legislation
includes the following language:

The constituent institution shall implement a range of disciplinary sanctions for anyone
under the jurisdiction of a constituent institution who substantially disrupts the
functioning of the constituent institution or substantially interferes with the protected free
expression rights of others, including protests and demonstrations that infringe upon the
rights of others to engage in and listen to expressive activity when the expressive activity
has been scheduled pursuant to this policy or is located in a nonpublic forum.

The addition of the reference to the defining of substantially disrupts or substantially interferes
was added in the draft policy and is not included in the legislation. For the reasons described
above including the ambiguous nature of how this section could be applied to limit free speech,
this section should be excluded from the Section A. Disciplinary Sanctions. Each constituent
institution has a particular culture and uniqueness which must be considered when determining
what is acceptable on the campus and what disciplinary action should be taken. Part of what
makes the University of North Carolina such a dynamic system is the ability of each institution to
make certain decisions to further the missions and goals aligned with its specific identity. The
language included in the legislation directly indicates that the institution will implement a range of
disciplinary sanctions. There is no need for the Board of Governors to further define for the
constituent institutions the disciplinary sanctions.

Conclusion

The Faculty Assembly supports the presentation of differing viewpoints on the campuses of the
University of North Carolina. Nothing in these recommendations is intended to reject any
particular ideology or viewpoint. The Faculty Assembly, in its advisory capacity, is appreciative of
the opportunity to provide feedback on a policy that will have major implications on our
campuses. Please continue to engage us as the Board moves forward with various policies to
ensure that our students and our state have access to the best education possible. If there are
additional questions, please do not hesitate to reach out to us to provide more detailed feedback.