The answer to some who believe “hate speech,” whatever that may be, should not be protected under the First Amendment and, absent such protection, can either be criminalized per se or punished ad hoc, is to respond in kind. After all, law is like magic.

Eariler this week, Georgia State Sen. William Ligon, a Republican, introduced the Campus Free Speech Act, a bill designed to uphold students’ First Amendment freedoms. Following a year in which there were plenty of campus speech meltdowns, this bill attempts to address the growing resistance to a free and open campus, though it also creates new concerns.

The bill, which is based on the Goldwater Model, would require universities to take action against students who shut down speakers. Stanley Kurtz, a senior fellow at the Ethics and Public Policy Center and co-author of the Goldwater proposal upon which this bill was based, feels strongly about this specific bill.

If a person impairs another person’s right to speak, should they not be subject to punishment? This question isn’t as easily answered as one might think. Applause? That interferes with a speaker’s ability to speak. Boos and hisses, negative shouts from the crowd? That too.

“The Georgia bill and the Goldwater model that inspired it aims to secure campus free-speech in the most balanced and comprehensive way possible,” said Kurtz in an email to Reason. “It’s often forgotten that the principle of institutional neutrality is a pillar of campus free-speech. Universities should resist the temptation to take official institutional stands on political controversies… the Goldwater proposal is the only model to affirm this principle of institutional neutrality.”

Neutrality means that anything that impairs another person’s speech is treated the same. But applause and boos aren’t received the same by speaker or audience. One is sought and enjoyed by the speaker. The other, not so much. But much as the speaker has the right to speak, so too does the member of the audience doing the clapping (or jazz hands, as the case may be) and the jeering, provided he’s not crashed a private affair.

The bill seeks to promote the ability of invited speakers to speak on campus, even if what they have to say is deemed by others to be offensive.

[U]niversities must “strive to ensure the fullest degree of intellectual freedom and free expression,” they must also agree that “it is not the proper role of the institution to shield individuals from speech” and that their protection must also extend to speech which some may “find unwelcome, disagreeable, or even deeply offensive.”

As an aspirational statement, this certainly seems to protect the right to bring speakers to campus whose words and ideas will offend some. But the devil, as always, is in the details.

The bill protects public demonstrations, provided that they do not “materially and substantially” infringe upon the rights of others. Campuses must be open to any speaker who is invited by student groups or faculty members, and these speakers must be given the same terms. Universities also may not charge a security fee based on the content of the invitee’s speech (something Berkeley tried in the past).

What constitutes conduct that materially and substantially infringed upon the rights of others? The words seem superficially meaningful, and yet provide no line beyond which a person may not go. It’s the sort of thing that can only be determined after the fact, and that does the “infringing” person little good. It clearly chills the free speech rights of those disagreeing.

And then what?

Students who break these policies are entitled to certain due process rights that are spelled out in the document, but the bill states that “any student who has twice been found responsible for infringing upon the expressive rights of others shall be suspended for a minimum of one year or expelled.”

Whether this strikes you as an appropriate punishment isn’t the point. This is the free speech version of zero tolerance, where mandatory penalties are imposed fail to take into account either the nature of the conduct or the nature of the person at risk of punishment.

Joe Cohn, the Legislative and Policy Director at Foundation for Individual Rights in Education (FIRE), said FIRE is troubled by this aspect of the proposal.

“We are always concerned about mandatory punishments that do not take into account individual culpability,” said Cohn in an interview with Reason. “There is a difference between someone who has gotten in trouble for counter protesting as a freshman and then again as a senior, three credits shy of graduating, and someone who gave a professor a concussion at a rally.”

If any of this is reminiscent of issues arising under Title IX adjudications, that’s because it is. The nature of campus regulations includes some peculiar ramifications, ranging from the loss of years of tuition and opportunity costs should a student be expelled to an education-ending suspension for a new student.

These are extremely heavy penalties, and these penalties are being applied to college-aged students, not known for their capacity to think hard before doing something foolish or resist the peer pressure to participate in whatever flavor of ideology is being rammed down their throats.

Much as the effort to safeguard the ability of student groups to invite speakers who are unpopular with others on campus is worthy, the use of laws to micromanage free speech rights is fraught with problems. Mandatory penalties are one, but hardly the only one.

What happens when protest groups figure out that they can silence a speaker with applause just as well as boos? What about distinguishing between students in a group who participate, but only for five minutes, as opposed to those who do so for ten. Or an hour? Is ten minutes of interference a violation or an exercise of speech by demonstrators?

That there is a need to protect diverse ideas on campus is, itself, an indictment of the intolerance and closed-mindedness of those who are certain that only ideas with which they agree are worthy of discussion. But they too have rights to speak, and efforts to stifle their speech are just as wrong as their effort to shut down the speech of others.