FIRE’s letter to UCSD

By on May 22, 2002

May 22, 2002

Chancellor Robert C. Dynes

University of California, San Diego

9500 Gilman Drive, MC 0005

La Jolla, California 92093-0005

URGENT

Re: Disciplinary Charges against The Koala.

Dear Chancellor Dynes:

As you can see from the list of our Directors and Board of Advisors,
the Foundation for Individual Rights in Education (FIRE) unites leaders
in the fields of civil rights and civil liberties, scholars,
journalists, and public intellectuals across the political and
ideological spectrum on behalf of liberty, legal equality, freedom of
religion, academic freedom, due process, and freedom of speech and
expression on America’s college campuses. Our web page,
www.thefire.org, will give you a greater sense of our identity and
activities.

FIRE is gravely concerned by the threats to free speech, due process,
and constitutional protections posed by the actions taken against the
student publication The Koala during the past academic year. With regard to the most recent charges, it seems unmistakable that UCSD is targeting The Koala
for its content, which high officials of UCSD have condemned on
numerous occasions. The tragic events of the past year have made it
abundantly clear that freedom of expression is an essential, precious,
and fragile right in any progressive society. We must be vigilant
against any and all means used to attack it.

FIRE is further concerned about the attempts to exclude The UCSD Guardian from reporting on the hearing against The Koala.
When the University makes decisions with profound consequences for free
speech and fundamental fairness, it is crucial that the proceedings be
open to public scrutiny. If UCSD believes it is in the right, it has
nothing to fear from public exposure and discussion of this case.

This is our understanding of the facts. The Koala is a
student run publication that satirizes and parodies everything and
everyone at UCSD and beyond. University representatives have harshly
condemned the publication on numerous occasions. Last fall, for
example, Vice Chancellor Joseph Watson, regarding a recent issue of The Koala, stated, “On Behalf of the UCSD community, we condemn The Koala’s
abuse of the Constitutional guarantees of free expression and disfavor
their unconscionable behavior.” (It is noteworthy that the only
“behavior” engaged in was constitutionally protected expression.)

While the University is certainly entitled to its own opinions, the
administration proceeded to lodge a series of charges against the paper
for numerous questionable infractions. On November 19, 2001, Koala members attended a meeting of the student group Movimiento Estudiantil Chicano de Aztlan (MEChA), to which many Koala members were invited. A Koala

photographer who took a number of photos of the MEChA president was
asked to leave. After taking additional pictures, the photographer
left; many Koala members remained at the meeting until it
ended, without incident. The pictures were then used to satirize the
President of MEChA, who had been highly critical of The Koala in the past. In late February of 2002, The Koala
and all the students involved in the November 19 meeting were accused
of breaching student code 22.14.10.27 (“obstruction or disruption of
teaching, research, administration, disciplinary procedures, or other
UCSD or University activities.”) for the alleged November 19
“incident.” The Koala has been threatened with being derecognized, defunded, and dissolved.

This differs greatly, of course, from UCSD’s ringing endorsement of the
constitutional freedom of MEChA’s Voz Fronteriza in 1995, when that
student publication urged the death of Hispanic agents of the
Immigration and Naturalization Service. “All Migra pigs should be
killed, every single one….It is time to organize an anti-Migra
patrol,” Voz Fronteriza wrote in its May 1995 issue. In response to
calls for censorship and punishment issued by an outraged public and by
members of Congress, Vice Chancellor Watson told the San Diego
Union-Tribune: “Like most student newspapers, they make an effort to achieve some shock value.” On July 5, 1995, UCSD issued a formal statement, insisting, “The University is legally prohibited from censuring the content of student publications….Previous
attempts by universities and other entities to regulate freedom of
speech, including hate speech, have all been ruled unconstitutional.”
Vice Chancellor Watson wrote to U.S. Representative Duncan Hunter that,

Voz Fronteriza had “the right to publish their views without adverse administrative action.”
FIRE would love to debate in public your shocking double standard; we
would be pleased, however, to achieve the quiet restoration to The Koala of the same rights that you emphatically protected for MEChA’s own Voz Fronteriza.

When charges were brought against The Koala, The UCSD Guardian sought to cover this potential case of censorship. The paper tried repeatedly to gain access to the hearings involving The Koala,
as it is a matter of great public importance and interest on the UCSD
campus, but was repeatedly denied. The administration based their
exclusion on a variety of theories, including that campus media could
not be allowed to be present due to the Federal Education Privacy Act
(FERPA).

The first issue that needs to be addressed is the
extraordinarily overbroad interpretation of 22.14.10.27. In order to be
legally enforceable, rules must be reasonably specific, clear, and
applied in a way that does not threaten protected speech or
journalistic practice. No university that claims to value openness or
transparency could make photography at a student meeting a serious and
punishable offense. This action announces to all student media that
UCSD regards them as little more than semi-tolerable nuisances, not an
essential part of the University community. Furthermore, it is highly
dubious that the photographer’s presence was a meaningful disruption,
and equally doubtful that the public meeting was the sort official
“University activity” that the rule was designed to protect. The very
weakness of this “disruption” charge indicates that UCSD has an outside
motive for prosecuting The Koala, and it appears all but certain that this motive is The Koala’s controversial content.

While it is predictable that a paper that consistently and harshly
satirizes, parodies, and mocks the school would disgruntle a
university, this form of dissent and social criticism is nevertheless
an invaluable component of life in a free society. Voz Fronteriza,
whose rights the vice chancellor so vigorously defended in 1995, went
so far as to depict then-Governor Wilson in the crosshairs of a
sniper’s rifle. Strong criticism, including parody and satire, are
areas of political speech that are at the core of our country’s honored
traditions, and they exist to challenge, to amuse, to provoke, and to
offend. We strongly encourage you to read the landmark Supreme Court
cases Cohen v. California, 403 U.S. 15 (1971) and Hustler Magazine, Inc. et al. v. Jerry Falwell,
485 U.S. 46 (1988). Taken together, these cases protect-as core
political speech-highly offensive material, farce, profanity, and
exaggeration, and confirm the essential role of parody and satire
precisely because they challenge readers’ deepest assumptions and
beliefs. No campus that claims to take seriously the free speech rights
of students can retaliate against a student publication because it
offended a student organization or the administration. To allow this to
happen would spell the end of robust discourse at UCSD. Even if UCSD
maintains that all of the sanctions and accusations against The Koala
have nothing to do with the publication’s content, it should still
cease any hearings against the paper, as the popular perception that
UCSD is targeting a publication for its content is enough to silence
debate and dissent.

As you know full well, and as you repeated in 1995 in the matter of Voz Fronteriza,
UCSD is a public university and, therefore, has an overarching legal
obligation (in addition to its moral obligation) to ensure the First
Amendment rights of its students. UCSD must not initiate any action, or
even threaten any action, against a student or student publication on
the basis of clearly protected political statements, regardless of the
offense given to others. UCSD cannot claim that it does not understand
the full contours of its duties to free speech; the University stated
in its own Policies and Procedures Applying to Student Activities:
“UCSD is committed to ensuring that the exercise of constitutional
rights of free and open discussion, expression, and advocacy are not
only protected but encouraged as a vital aspect of the spirit of free
inquiry appropriate to a university setting.” We ask you to live up to
this noble commitment.

FIRE urgently requests that UCSD terminate any proceedings and drop all charges against The Koala,
its staff, and its writers. A hearing is scheduled for tonight. There
should be no hearing. Even considering these charges as worthy of a
hearing produces a chilling effect across the campus. If considered in
a spirit of legal equality-that the same rules at UCSD apply to all-it
would chill everyone’s right to engage in political speech of every
kind. Furthermore, we request that UCSD affirm the full protection of The Koala’s
right to parody, satire, and freedom of expression, and that no
University policy or contrivance will be used to circumvent those
rights.

Finally, if UCSD takes the unfortunate step of allowing the
hearing to occur, we urge you then, at least, to open it to the student
media. As the accused in this case fully consents to their presence,
and as it concerns an issue of great public importance, it is vital
that the campus media be present. Neither UCSD nor FERPA can overrule
the First Amendment, which incorporates a right to access information
of public importance. The possibility that UCSD may be trying to shut
down a publication due to its content is indeed a matter of the
greatest public concern.

No one wishes these matters (and UCSD’s double standards) to become the
subject of national scandal, but you may be certain that they will if
these charges are not summarily rejected by the administration. UCSD
has legal, academic, contractual, and constitutional obligations to the
rights of its students. As a result of this action, your students now
live in insecure possession of what should be their common human,
legal, and academic rights as members of a great University. Let me
assure you that many individuals and organizations devoted to free
expression are watching, with acute attention, the chilling of such
freedom.

FIRE hopes we are able to resolve this dispute discreetly and
amicably. However, we are committed to using all of our media and legal
resources to support The Koala
and, ultimately, to see this matter through to a just and moral
conclusion. Please spare UCSD the embarrassment of fighting against the
Bill of Rights by which it is morally and constitutionally bound. We
hope reason and decency will prevail.

I look forward to hearing from you.

Sincerely,

Greg Lukianoff

Director of Legal and Public Advocacy

cc:

Marsha A. Chandler, Senior Vice Chancellor

Joseph W. Watson, Vice Chancellor for Student Affairs

James M. Langley, Vice Chancellor for External Relations

Alison Norris, Editor-in-Chief, The UCSD Guardian

George Liddle, Editor-in-Chief, The Koala

Tom Agee, Student Conduct Coordinator, UCSD

Parisa Baharian, Chairperson, UCSD Campus-Wide Judicial Board

Patricia Scott, Advisor to the UCSD Campus-Wide Judicial Board

Schools: University of California, San Diego