Hb 1: Forum Act

• Jurisdiction: Georgia,United States
• Citation: Vol. 39 No. 1
• Publication year: 2022
• topic: Civil Rights

HB 1: FORUM Act

Tuscan Fairfield

tfairfield1@student.gsu.edu

Paul-Michael Haley

phaley1@student.gsu.edu

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EDUCATION

Postsecondary Education: Amend Article 2 of Chapter 3 of Title 20 of the Official Code of Georgia Annotated, Relating to Education Generally, so as to Provide for Public Forums at Public Institutions of Higher Education Within the University System of Georgia and the Technical College System of Georgia For the Campus Community; Prevent the Creation of "Free Speech Zones" at Such Public Institutions of Higher Education; Allow for Reasonable, Content- and Viewpoint-Neutral, and Narrowly Tailored Time, Place, and Manner Restrictions on Expressive Activity at Public Institutions of Higher Education; Prohibit Material and Substantial Disruption of Protected Expressive Activity at Public Institutions of Higher Education; Require Public Institutions of Higher Education to Provide Public Notice of Rules and Expectations Regarding Expressive Activity; Require Public Institutions of Higher Education to Develop Materials, Programs, and Procedures Related to Expressive Activity; Provide for a Short Title; Provide for Definitions; Provide for Related Matters; Provide for an Effective Date; Repeal Conflicting Laws; and for Other Purposes

Code Sections: O.C.G.A. §§ 20-3-48, -48.1 (amended); 20-3-48.2 (repealed); 20-4-11.1 (new)

Bill Number: HB 1

Act Number: 818

Georgia Laws: 2022 Ga. Laws Act 553

Effective Date: July 1, 2022

Summary: The Act prevents the creation of free speech zones at public institutions of higher education including Georgia universities, colleges, and technical colleges. Additionally, the Act allows universities to create reasonable, content- and viewpoint-neutral, and narrowly tailored time, place, and

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manner restrictions on any expressive activity on campus.

History

In 2016, a Georgia Gwinnett College student, Chike Uzuegbunam, wanted to distribute religious literature on campus.¹ He was told he could only speak about his religion in designated "free speech zones" and only after receiving a permit.² Yet, even after receiving the permit, college officials informed him that he had to withhold his speech and distribution of religious literature because it violated campus policies.³ Uzuegbunam filed suit asserting that his First Amendment rights had been violated.⁴ The Supreme Court granted certiorari.⁵

While that case was pending, in April 2020, Students for Life at the Georgia Institute of Technology (Georgia Tech) sued the university after it refused to cover the $2,346 speaking fee for Alveda King, pro-life activist and niece of Dr. Martin Luther King, Jr.⁶ The student organization believed this refusal exemplified how student government can "discriminate against some viewpoints," which, from the students' perspective, was "not how the marketplace of ideas is supposed to work at a university."⁷ After just a few months, Georgia Tech settled the suit, costing the university—and by extension, the university system—$50,000 in damages, excluding the cost of legal fees.⁸

These cases centered around "free speech zones": designated areas on a college or university campus in which individuals may express ideas without administrative regulation, ordinarily with prior

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permission.⁹ Since their first appearance on college campuses in the 1980s and 1990s, free speech zones have elicited polarizing responses.¹⁰ Universities argue that these speech zones are necessary to prevent classroom disruptions and campus policy violations.¹¹ Universities claim to have established these zones to battle hate speech.¹² Conversely, First Amendment activists argue that university-enforced speech zones impermissibly confine expression.¹³

In response to a series of highly publicized events, conservative political figures declared that the First Amendment was "under attack" and began pushing for legislation meant to counter the perceived threat.¹⁴ Since this declaration of a First Amendment "crisis," twenty-two state legislatures have passed legislation with the intent to affirm the First Amendment's importance and protect college students who wish to speak on a topic.¹⁵

Representative Josh Bonner (R-72nd) followed suit and introduced House Bill (HB) 1, the Forming Open and Robust University Minds (FORUM) Act.¹⁶ Noting concerns for students' First Amendment rights and the costs associated with such cases, like the settlement involving Georgia Tech's Students for Life, Representative Bonner saw ample need for prohibiting free speech zones on college campuses.¹⁷

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Representative Bonner previously introduced a version of the FORUM Act during the 2019-2020 legislative session as House Bill (HB) 995, which was favorably reported by substitute by the higher education committee on March 12, 2020.¹⁸ The bill, however, stalled in the Senate and never received a hearing.¹⁹ In 2022, Representative Bonner reintroduced the FORUM act as HB 1.²⁰

Bill Tracking of HB 1

Consideration and Passage by the House of Representatives

Representative Josh Bonner (R-72nd) sponsored HB 1 in the Georgia House of Representatives with Representative Ginny Ehrhart (R-36th), Representative Todd Jones (R-25th), Representative Rick Williams (R-145th), Representative Joseph Gullett (R-19th), and Representative Wesley Cantrell (R-22nd) cosponsoring.²¹ The bill was placed in the House hopper on January 28, 2021, and was first read on January 29, 2021.²² After a second read on February 1, 2021, the bill was referred to the House Higher Education Committee.²³

The House Higher Education Committee first addressed HB 1 on February 19, 2021.²⁴ The bill was based on the prior Committee substitute of HB 995, which was introduced but never voted on during the 2019-2020 legislative session.²⁵ During the Higher Education Committee hearing, the University System of Georgia and the ACLU

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of Georgia noted two major concerns with the bill.²⁶ First, both entities believed that the definition of benefits, by removing universities' ability to remove funding from hate groups, would allow discrimination on campuses.²⁷ Both entities believed that this prohibition on removing association funding would conflict with federal discrimination law.²⁸ Second, the University System of Georgia feared that the bill would subject it to more state and federal suits due to a cause-of-action section included in the bill.²⁹

In response to these concerns, Representative Bonner attempted to compromise with the University System of Georgia and the ACLU of Georgia but could not do so.³⁰ He presented an updated version of the bill in the Higher Education Committee meeting on February 24, 2021; the version removed the clauses that provided for a cause of action and a prohibition on removal of university funding.³¹ On March 4, 2021, the Higher Education Committee presented additional changes that brought the bill more in line with the final version of HB 995.³² These

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changes included amending definitions, including the definition of "protected expressive activity," to match HB 995.³³ The definition of "materially and substantially disrupts" notably differed from HB 995's language and more closely resembled a definition taken from case law.³⁴ The Higher Education Committee favorably reported the bill by substitute during the same meeting.³⁵

On March 31, 2021, the bill was withdrawn by the House and recommitted to the Higher Education Committee.³⁶ On February 10, 2022, the Committee favorably reported the bill by substitute.³⁷ This substitute differs from the prior substitute in two ways: (1) the removal of the preamble language denoting restriction on the denial of benefits and funding to student organizations, and (2) the removal of the definition of "benefits" in Sections 1 and 4.³⁸

The House read HB 1 for a third time on March 4, 2022, and called the bill to the floor for consideration on the same day.³⁹ The House

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adopted the bill by a vote of 93 to 62.⁴⁰ Immediately following the vote, Representative Park Cannon (D-58th) moved for the House to reconsider the bill.⁴¹ The motion to reconsider failed by a vote of 70 to 89.⁴²

Consideration and Passage by the Senate

Senator Bruce Thompson (R-14th) sponsored the bill in the Senate.⁴³ After a first read on March 9, 2022, the bill was referred to the Senate Judiciary Committee, which favorably reported it on March 25, 2022.⁴⁴ Second and third reads were conducted on March 28 and April 4, respectively.⁴⁵ On April 4, 2022, the Senate called HB 1 to the floor for consideration, and Senator Thompson introduced the bill.⁴⁶ After debate, the Senate passed the legislation by a vote of 33 to 18.⁴⁷

Final Passage and the Governor's Signature

On April 6, 2022, the Senate sent the bill to Governor Brian Kemp (R), and the Governor signed HB 1 into law as Act 818 on May 3, 2022.⁴⁸ The Act's effective date is July 1, 2022.⁴⁹

The Act

The Act amends Title 20 of the Official Code of Georgia Annotated to concretely delineate permissible limitations to free speech on campus.⁵⁰ The Act contains three operative sections, two of which are

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virtually identical.⁵¹ The first section repeals and replaces Code section 20-3-48, and the fourth section introduces Code section 20-4-11.1 that mirrors the language set forth in the first section.⁵² Chapter 3 of Title 20 of the Official Code of Georgia Annotated applies to postsecondary education, and Chapter 4 of Title 20 applies to vocational, technical, and adult education.⁵³ Due to the significant overlap, these two sections (the primary sections) will be discussed concurrently.

The first subsection of these primary sections provides for definitions of terms, beginning with "campus community."⁵⁴ As discussed below, the Act eliminates restrictions on "students, administrators, faculty, and staff at the public institution of higher education and their invited guests."⁵⁵ This definition permits public universities to exclude individuals who are neither...