As this is being written, a Republican bill has been passed in Florida that would allow students to record lectures without the professors’ consent. The bill also encourages students to report lectures they think are stifling “viewpoint diversity” on campuses. Republicans have claimed that this bill is intended as protection against “Marxist professors and students.”
When it comes to recording, Florida is a two-party consent state. Except in cases where the parties to communication do not have a reasonable expectation of privacy (such as public spaces), the consent of all parties is required to (legally) make such recordings. The bill thus seems to imply that classrooms are not currently considered public spaces under the existing law (otherwise that aspect of the law would be pointless)—but one could certainly contend that a classroom affords no expectation of privacy. As a side issue, there is also the interesting question of whether a lecture should be considered analogous to a commercial public performance (like a play, concert or professional sporting event). But this is another matter for another time.
Another aspect of the bill is that all of Florida’s state funded postsecondary schools are required to complete an annual survey of faculty and students. This survey is intended to determine the protection afforded to intellectual freedoms on campus. The bill is also intended to shield students from attempts to restrict their “access to, or observation of, ideas and opinions that they may find uncomfortable, unwelcome, disagreeable, or offensive.” These expressive activities include the content of lectures and “all forms of peaceful assembly, protests and speeches.” This bill raises many concerns, one of which is whether it is needed. Another is whether it is ethical.
Republicans typically claim to favor small government. I also profess to favor minimal government and have argued in other essays that the state should restrict its laws to cases in which the harm needs to be addressed by law and the good the law does meaningfully outweigh any harms or costs of the law. In terms of the existence of harms the bill is intended to address, proponents of the bill were unable to present any evidence that there is a significant problem that warrants expanding state power.
Alex Andrade, a co-sponsor of the bill, did make an appeal to (unidentified) anecdotal evidence. According to Andrade, “We have a lot of anecdotal evidence of largely conservative students feeling very uncomfortable sharing their viewpoints in university classrooms, they’re getting shut down.” Andrade also claimed that there are anecdotes about conservative students needing to shift their essays to the left to get better grades and that they are worried about action being taken against them for their conservative views. While appeal to anecdotal evidence is a fallacy, Andrade did note that the mandatory survey portion of the bill is aimed at collecting data. This seems to be an admission that they are passing a bill to address a harm for which they lack significant evidence. This seems at odds with a professed belief in limited government.
To be fair, the mandated survey might turn up significant evidence of harm—but my view is that a harm should be confirmed before bills are passed—otherwise the state could be expanding its coercive power without out justification, something conservatives are supposed to loath. I also hold to the view that new laws should be created only when the existing mechanisms of addressing an (alleged) problem are not sufficient.
Having worked in academics for decades, I can assure you that universities have policies and mechanisms that students can use to report improper behavior by professors and other university employees. This would include violating the rights of students to express their views. It could, of course, be objected that universities are biased and are covering up abuses—but one would need at least some evidence of these nefarious activities. One can, of course, say that this is why the bill is needed: there might be something going on and recording professors and surveying students are needed to expose it. One obvious concern is that this approach could be used to justify a range of bills simply by alleging unconfirmed anecdotes about harms and including provisions in the bills to look for the alleged harms. For example, every business in Florida that receives state money could be up to nefarious deeds behind closed doors—so if this bill is justified, then an analogous bill should be passed to address harms that might be occurring involving these businesses. Of course, part of the bill would include investigative aspects to root out alleged harms. This is, of course, but one example of the sort of bills this approach would justify. Now to moral concerns about the bill.
One concern about the bill is that it seems to be a weapon aimed at coercing faculty and universities. Encouraging students to record lectures with the intent of reporting faculty sends the message to faculty that they will be spied upon and thus had best behave lest they be subject to the coercive power of the state. It would, of course, be hyperbole to compare this to the Soviet style policing of ideology through spies. While the survey also purports to be aimed only at gathering information, it would create a state-owned reporting system looming over faculty and universities. That is, this bill can be seem as an effort to use the power of the state to coerce faculty and universities.
To be honest, I am not overly concerned about the recording of my lectures or students reporting on me. I have been recording my lectures for years and making them available on YouTube—so anyone wanting to ensure that I am not oppressing my students with Marxism or whatever can confirm this. As a professional, I am also careful to allow students to express their views—especially when they are views, I disagree with. But this is not just about me and I do have some concerns that someone could piece together a recording to weaponize against me or others. For example, in my Introduction to philosophy class I cover Marxism, fascism, democracy and anarchism. So, a recording taken out of context could present me as espousing anything from class warfare to democratic government, to a fascist state, to destroying the state. I also do a section on equality in my Ethics class and have admitted, in class, that I am opposed to racism and sexism—something like this might be used against me. Which takes us to the shield clause.
I do consistently support the freedom of expression and thus think students should be free to express their views. That said, there is also the fact that freedoms/rights require limits. While this might seem like an Orwellian claim, it is uncontroversial and true. To illustrate, your right to own property requires limiting my property rights. Crudely put, I must be denied the freedom to take your stuff. As another example, your right of expression requires limiting my expression—such as me using a megaphone to drown you out. As a final example, your right to life requires limiting my freedom to kill. As such, rights must be balanced so that they are not so strong that they harm the rights of others or so weak that they allow people to be harmed. So, an obvious concern with the shield clause is that it might be too strong—that it might grant some people the right to violate the rights of others.
Some people, such as Dr. Karen Morian, have made the claim that the shield law would open the door to white supremacists and other hate groups. They could use the bill to gain access to campuses and intimidate students and faculty wearing the mask of free speech. There is also the possibility that the shield could be used to create a hostile classroom—a student expressing racist or sexist views might be protected by this shield, even when their expressions are aimed at intimidating or coercing others in the classroom. It could be objected that the shield would not allow this—that university rules about classroom behavior and even laws about making threats would come into play. This is certainly worth considering—but if these laws suffice to protect students, then there would seem to be no need for this new bill. After all, students would already be protected from coercion and mistreatment.
In closing, this bill seems largely to be political theater—expressing an anti-left view and attacking a hobgoblin to please the base. But it does expand the coercive power of the state without adequate justification, it does create tools of intimidation, and it also provides a shield for white supremacists and hate groups. As such, I do oppose the bill.