Florida 'cancel culture' bill lets students record instructors without their consent

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Experts in higher education say a bill Florida Republicans claim will protect free speech will achieve exactly the opposite effect.

A new bill passed by the Florida State Legislature could endanger university instructors and other staffers by authorizing students to record lectures at any time without their consent — and to use the recordings against them in civil or criminal litigation or disciplinary complaints later on.

The legislation, House Bill 233, was introduced by four Republican lawmakers and was framed as protecting campus free speech and combating "cancel culture." Experts say that it will have the opposite effect, endangering academic discourse and suppressing free speech.

The bill passed both the state House and Senate already and is now headed back to the House for final approval, after changes were made, for a final vote before likely heading to the desk of Gov. Ron DeSantis to be signed into law.

According to its sponsors, the legislation is intended to protect intellectual freedom. One sponsor, state Rep. Ray Rodrigues, told the state Senate in January that although Florida state universities and colleges embrace diversity, the proposed legislation would implement an empirical standard by which to measure a school's diversity of viewpoints.

Another sponsor, Republican state Rep. Spencer Roach, told the Tampa Bay Times, "We want to make sure on college campuses that students are being exposed to ideas that they like and also ideas that they hate, so they can learn to think critically and debate them."

But experts say the legislation is much more complicated — and concerning — than that.

Erin Ryan, vice chair of the Florida State University faculty senate and member of the advisory council of faculty senates, told the American Independent Foundation the bill "creates a legislative entitlement to students to record class discussions" without the instructor's consent.

While the language of the bill purports that any lecture recordings can only be used for personal use — such as disciplinary hearings or private litigation — and bars students from publishing the videos, Ryan said there are no legislative teeth to such a ban.

In fact, the text of the bill, while providing a cause of action against students who publish such recordings without the professor's consent, specifically forbids universities to conduct any such litigation with state funding.

Ryan said the bill was troubling since students in the classroom often experiment with new ideas while instructors play "devil's advocate," allowing for footage to be taken out of context.

"We are extremely concerned about how this would actually undermine our ability to conduct higher education as we know it, in which we construct a safe space for people to experiment with ideas," she said.

It could also deter professors from wanting to teach in Florida and impede the highly ranked university system from attracting, recruiting, and retaining employees, Ryan added.

"Many faculty will leave the state because of that chilling state impact," she claimed.

Ryan noted that the legislation was "McCarthy-like" and ultimately prevents professors from doing their jobs.

"All of us want to be able to help our students grow, by teaching them in an environment where everyone feels free and safe to experiment with ideas," she said. "This takes that away from everyone."

Ryan added that non-tenured professors, visiting faculty, graduate students or teaching assistants presenting a lecture-style class would be most endangered by the legislation.

"Faculty who have tenure have protections that [those] who do not have tenure would envy if they’re put into an uncomfortable employment situation due to these recordings," Ryan said.

The bill contains a number of other provisions. It requires the State Board of Education and Board of Governors to annually assess "intellectual freedom and viewpoint diversity" at state colleges and universities by conducting a survey of students, faculty, and staff about their experience of on-campus ideological diversity.

Ryan said while in theory, such a survey could show legislators to see how much diversity does exist on university campuses, ambiguity surrounding the survey is concerning. "We're very unclear: What it is to be used for, how it would be used, what is the right amount of ideological diversity? Would it be used to reward or punish institutions with funding on the basis of those results?" she said.

The legislation also prohibits schools from shielding students from points of view that make them uncomfortable or banning controversial speakers, which Ryan says she and other Florida academics support, in general.

"We agree universities are places where all points of views should be welcome and aired. We are committed to have an open marketplace of ideas and exchange," she said. But schools should have the authority to protect health and safety of students if non-constitutionally protected speech, like incitement to violence, might occur on campus.

Dr. Anita Levy, a senior program officer in the department of academic freedom, tenure, and governance within the American Association of University Professors, told the American Independent Foundation that House Bill 233 was a "solution in search of a problem."

"This fear that free exchange of ideas can no longer occur on campuses is really grossly exaggerated," she said. "The AAAP has long held that freedom is essential to learning. No idea can be banned or forbidden, especially in the classroom."

Levy added that the bill would chill campus freedom of speech.

"It's huge legislative overreach, and an invasion of privacy and a threat to academic freedom on campus," she said. "It is actually meant to suppress speech rather than to encourage it to flourish."

Levy added, "The fear that you've got the Florida legislature looking over your shoulder would definitely chill academic freedom."

"Allowing the legislators to interfere in campus policies sets a very dangerous precedent and we oppose that wherever it crops up," she said, noting that faculty and students should have the ability to discuss subject matter in the way that they see fit.

Ryan said that the advisory council of faculty senates with the Florida State University system attempted to problem-solve with legislators and suggest amendments to the bill, but were repeatedly overruled. Florida Democratic lawmakers also fought the legislation.

Both House and Senate Democrats also expressed concerns about how a "viewpoint diversity" survey's data would be used, as well as the repercussions of students filming lectures without consent.

"It feels as if it has the potential to target faculty," Ryan said. "They're going to weaponize your students against you to find out what you're doing."

Published with permission of The American Independent Foundation.