Kansas House bill honoring Charlie Kirk seeks to liberate campus voices, but it’s complicated

Founder and executive director of Turning Point USA Charlie Kirk speaks at the opening of the Turning Point Action conference on July 15, 2023, in West Palm Beach, Florida. (Photo by Joe Raedle/Getty Images)

A bill introduced in the Kansas House this week, one that its Republican sponsor hopes will embolden free speech in honor of Charlie Kirk, might indeed prevent censorship and nudge student voices, as he intends.

However, it might also frustrate many Kansans (including fellow Republicans) who won’t enjoy the unfettered expression — from students and faculty, on campus and online — that this bill protects. We can nitpick other likely consequences of the bill after we cover the basics.

Rep. Brett Fairchild, R-St. John, introduced a bill Tuesday that would, generally speaking, enlarge the free speech rights of people on Kansas university and postsecondary education campuses. The bill’s acronym? The FORUM Act, for “forming open and robust university minds.”

In the other chamber, Kansas Senate President Ty Masterson, R-Andover, announced this week that additional legislation “is being drafted to safeguard free speech for students across Kansas education, from K-12 to public colleges.”

Fairchild and Masterson paid homage to Kirk, a slain conservative activist and free speech advocate who was shot and killed in September while speaking at a Utah college campus.

“Charlie Kirk was martyred for bringing truth and wisdom to college campuses, where the free exchange of ideas must remain central to their mission. He built a legacy of respectful yet passionate discourse and warned of the dangers when we stop talking to one another,” a statement from Masterson said, calling the bill a “top priority.”

Fairchild called Kirk “a great champion of free speech on college campuses.”

While Kirk’s views on many issues struck me as wrongheaded and offensive, his advocacy for free speech was different. The open debates he created, particularly for college students, pivoted campus norms about free speech.

I worry that this bill — or ones like it — won’t do nearly as much.

As we wait for the Senate bill, let’s review the House bill from Fairchild. Or, to be more accurate, the piece of legislation that Fairchild said came from someone connected to the libertarian group Young Americans For Liberty. Fairchild credited the words in the bill to a person who “knocked on doors when it was 100 degrees outside” and “helped me get elected a few years ago.”

“I’m a big fan of free speech and the First Amendment and I didn’t have any reason to say no,” Fairchild said during my interview with him this week.

He also expressed a loose commitment to the current language of the bill, House Bill 2472.

“I’m not necessarily 100% locked in to keep the bill exactly how it is,” Fairchild said. “As it is currently written, I’m open to amendments if universities come and testify.”

My former University of Kansas colleague Harrison Rosenthal helped me rake through the bill’s legalese. Rosenthal now works as a managing associate at the Dentons law firm and focuses on media and constitutional litigation.

Many of the bill’s provisions would duplicate protections provided by the First Amendment, and in that way the bill seems to me like political stagecraft — feting Kirk without making meaningful changes on college campuses.

However, Rosenthal said, “the bill’s novel moves are significant.” For example, the bill instructs universities to make all outdoor areas on campus into “public forums.” Another provision bars institutions from providing preference to groups or speakers affiliated with the university over unaffiliated groups or speakers.

The bill also protects off-campus and online expression by students. This is where I believe the bill proposes more than many Kansans actually want.

Section 9 of the bill says, “No postsecondary educational institution shall discipline, penalize or otherwise retaliate against a student, student organization, faculty member or staff for expressive activity conducted online, whether on social media, in email, on websites or other digital platforms, if such activity is protected under the first amendment to the constitution of the United States and section 11 of the bill of rights of the constitution of the state of Kansas and conducted in person.”

No discipline, penalty or retaliation at all? For students, organizations, faculty and staff? Would that be a popular outcome?

While I personally believe that universities should not be in the business of regulating a freshman’s Instagram post, is that what Fairchild believes?

In our interview, he said that he doesn’t want “speech constrained unless the speech is basically violent or racist speech.” It’s unclear, in my reading of the bill, what would trigger constraints on racist speech — and those guardrails have existed in the past.

Apart from racist speech, many fellow Republicans, including national political figures, have worked to punish students and faculty for speech recently. In fact, some of that speech was in response to Kirk’s shooting. 

Last year, a KU staff member posted that Kirk was “better in the ground as worm food than up here preaching that murdered children are a necessary sacrifice for 2A rights,” referencing the second amendment.

The backlash was understandably fierce from conservatives, including Masterson, who called for the university to fire the staff member. (KU did not.)

If Fairchild’s bill — or one similar in the Senate — passes, employees and students would be emboldened to speak in that same way.

Similarly, the New York Times published previously sealed court documents this week that showed the only evidence used by the Trump administration to seek deportation of university students was constitutionally protected speech. The judge in the case unsealed the documents to showcase how free expression about Israel and Palestine was being weaponized.

The judge in that case chided two Trump cabinet members for their role in an “unconstitutional conspiracy.” The administration’s actions were, in the judge’s view,  “violating” expressive rights of students studying in the United States.

“These cabinet secretaries have failed in their sworn duty to uphold the Constitution,” Judge William G. Young said last week in an emotional denunciation of the government from the bench.

The bill also requires that each institution “submit a report to the legislature and the governor” detailing the restrictions it enforced, speech disruptions or censorship and more. Asking for more annual reports is a curious pose from a political party that seeks to make our state government leaner and reduce funding for state universities. (It also smacks of a fishing expedition to provide fodder for screaming headlines in partisan media outlets.)

My biggest concern with this bill and others like it: Conservatives envision such laws as potentially liberating conservative speech on campus while somehow constraining contrary messages.

What will conservatives think if the law allows unfettered speech for their political foes?

For his part, Fairchild said he wants all speech protected.

“I don’t think it’s promoting a certain political view over any other type of political view,” Fairchild said. “I think it would protect speech from students who are on the left side of the political spectrum just as much as it would those on the right.”

As a free speech advocate, I support most of the bill’s language. Campuses could improve by fostering more open and risky debate among everyone on campus.

However, I worry that Kansas state law has little to do with the reticence that most students have. I have never heard a student bemoan the lack of statutory protection for what they want to say in class or on social media.

Rather than being a legal problem, student hesitation about being honest and open is a problem of social psychology.

Undergraduate students between 18 and 22 have grown up with the specter of digital retribution for their expression: Is someone going to post a recording of what I say in class to Instagram? Will I be canceled by friends if I post this video on TikTok? Will I be tossed out of contention for a dream job because of something I wrote on Twitter in high school?

These are the worries that they reported to me in class this week as we started a new semester. We reviewed recent research showing how college students see First Amendment protections as being damaged — more and more each year.

At the end of the presentation, I stood at the front of the auditorium and said, “So, this is the time to let me know what you think — how you feel.”

More than 150 undergraduate students looked back at me silently, some doodling nervously in their notebooks. Only the hum of computer projectors filled the classroom. Someone coughed.

“I’m really good at these awkward silences that encourage students to speak up,” I said.

I paused again.

Veteran teachers know that if you make eye contact and provide a kind smile, students will often take that as a cue.

“Still nothing?” I said.

Their nervous stares answered: nothing.

While I don’t see much objectionable in the House bill introduced this week, I don’t think it will break that silence in my classroom or at the state’s other university campuses.

Eric Thomas teaches visual journalism and photojournalism at the William Allen White School of Journalism and Mass Communication at the University of Kansas in Lawrence. Through its opinion section, Kansas Reflector works to amplify the voices of people who are affected by public policies or excluded from public debate. Find information, including how to submit your own commentary, here.