Posts Tagged ‘prior restraints’

UC System Considering New Speech Code

April 5, 2010

The University of California System is considering a new speech code in the wake of a few unfortunate speech incidents on its campuses.  AP reports that UC System President Mark Yudof is considering a new system-wide bias incidents or “hate speech” policy to remedy recent incidents involving swastika graffiti and a noose found hanging on a library book shelf.  In the former incident, UC Davis found several swastikas painted on university property and one on a student’s dorm room door.  In the latter incident, UCSD students used Facebook and other online media to promote an off-campus party that played off of negative racial stereotypes.  This caused the university to freeze the funding of 33 student media outlets.  Some California legislators called for punishment of the students.  The incident was followed by a student hanging a noose in the library, which later turned out to be a hoax.  The UC Davis incidents are obviously illegal (defacing government property) and may be considered true threats of violence, which are not protected forms of speech.  FIRE has done a good job detailing the proper reactions to the UCSD incidents. 

The UC’s actions are surprising, as Yudof and the UC General Counsel have done well recently by amending the system’s sexual harassment policy to comply with the First Amendment.  But it seems that Yudof may be receiving bad advice this time around.  The proposed speech code, which has surfaced from the UC Students Association, will prohibit “hanging a noose, burning a cross, or placing a symbol, such as a swastika, without authorization, on university property or at official university functions.”  The restrictions seem benign at first glance.  No one should be allowed to encourage criminal activity on campus or incite violence, and for this reason much of the restriction might pass constitutional review.  But the restriction on “placing a symbol,” runs afoul of the First Amendment.  Vague?  Overbroad?  Prior restraint?  You bet!  This gives an administrator unbridled discretion to determine which “symbols” are allowed on university property and which are not, with no criteria to guide their decisions.  This can result in an administrator finding that certain “symbols” are too “offensive” to be allowed (for example, a display of crosses during a Cemetery of the Innocents event).  This has the potential to stifle protected speech. 

President Yudof and the UC Regents would be wise to take heed of what happened to their university colleagues in College Republicans at San Francisco State University v. Reed, where a federal district court in San Francisco struck down a California State University system’s civility code as unconstitutional.  The court issued the decision after San Francisco State University investigated a College Republicans anti-terrorism rally that involved stepping on hand-made flags of Hezbollah and Hamas.  As the court reminded the CSU:

controversial expression . . . is the First Amendment’s highest duty to protect.  By political definition, popular views need no protection.  It is unpopular notions that are in the greatest peril—and it was primarily to protect their expression that the First Amendment was adopted. The Framers of our Constitution believed that a democracy could remain healthy over time only if its citizens felt free both to invent new ideas and to vent thoughts and feelings that were thoroughly out of fashion.  Fashion, it was understood, is an agent of repression—and repression is an agent democracy’s death.

If the UC wants to prohibit defacing university property, it can find better ways to do so.  If it wants to protect student safety, it may do so by prohibiting speech that incites violence.  But if it wants to promote racial tolerance and a marketplace of ideas, it will do better by allowing speech to occur, not banning it based on a few isolated incidents (one of which was a hoax).  I hope the UC takes the high road by taking another look at this proposed policy and bringing it into compliance with the First Amendment.

The Free Speech “Porch” at Tarrant County College vs. the U.S. Constitution

November 6, 2009

As the Associated Press reported  yesterday (h/t Inside Higher Ed), an attorney affilated with FIRE filed a lawsuit on behalf of  the two students at Tarrant County College challenging onerous speech restrictions on campus.

The students, Clayton Smith and John Schwertz Jr., wanted to participate in a nationwide demonstration next week known as an “empty holster protest,” which advocates for concealed carry on college campuses.  (ADF takes no position on this issue)  But school officials have limited the protest to the tiny “free speech zone” on the front porch of the student center.  The students are also prohibited from handing out fliers anywhere on campus except behind a table on the porch, according to the complaint filed in the United States District Court for the Northern District of Texas.  Administrators also told the students that they could not wear empty holsters on campus, basing their decision on their right to control the time, place and manner of speech on campus.  Memo to TCC: regulating the time, place or manner of speech does not give you the right to censor speech altogether, and time, place and manner restrictions on a college campus must meet strict criteria in order to comply with the First Amendment.  Simply deciding that you don’t like the students’ protest and disallowing it for that reason violates the Constitution.

TCC  policies also require students to apply for a permit before any expression may occur on campus–a classic prior restraint.  Prior restraints are presumptively unconstitutional, and a policy requiring students to get permission before they may engage in any expression on campus is no exception.

 The free speech aspects of this case remind me of one that the ADF Center for Academic Freedom litigated against the Yuba Community College District last year on behalf of Ryan Dozier, who was threatened with expulsion by the campus police and the college president  if he continued to engage in speech on campus without a permit.  (The case was named Academia’s Number One Abuse of 2008 by Young America’s Foundation).  The policies there required a student to apply for a permit 14 days in advance, and limited speech on campus to one small area on campus during only one hour on Tuesdays and Thursdays.   

Thankfully, YCCD officials quickly changed their policies to comply with the Constitution and settled the case, but one wonders if TCC officials will do the same, since they claim that their policies are “practical, enforceable and aligned with state and federal laws.”  Federal law on these issues has been clear for quite some time, so it is difficult to understand why so many colleges continue to maintain policies that clearly violate the First Amendment.  It seems the only way some schools will learn is through litigation—and through the courage of students like Ryan, Clayton and John, who are  brave enough to stand up for their rights on campus.