FIRE Letter to University of California, San Diego Chancellor Fox, November 28, 2007

By November 28, 2007

November 28, 2007

Chancellor Marye A. Fox
University of California, San Diego
9500 Gilman Drive, MC 0005
La Jolla, CA 92093-0005

Sent via U.S. Mail and Facsimile (858-534-6523)

Dear Chancellor Fox:

On June 22, the Foundation for Individual Rights in Education (FIRE) wrote you to express our deep concern over the threat to University of California, San Diego (UCSD) students’ rights to free expression and free assembly presented by UCSD’s proposed "Policy on Speech, Advocacy and Distribution of Literature on University Property." While we were pleased to learn that the period for public comment on the proposed changes was extended to December 1, 2007, we are dismayed not to have received a response to our concerns.

As the deadline for public comment draws near, FIRE again urges UCSD to reconsider the changes contained in the proposed policy. Because of the gravity of the harm to freedom of expression which would result from the policy’s implementation, we reiterate here the concerns voiced in our earlier letter.

The proposed changes include several objectionable and very likely unconstitutional provisions. First, and most troublesome, is UCSD’s proposal to require advanced reservations for any expressive activity expected to draw more than ten people. Specifically, the proposed policy states that:

Reservations for activities within the Designated Public Forums are recommended but not required unless (i) the activity can reasonably be expected to attract a crowd of 10 or more people or (ii) free-standing equipment will be used. Reservations must be made at least one business day in advance of the planned activity. Reserved activities shall have priority over non-reserved activities.

As discussed below, "Designated Public Forums" is defined broadly, effectively covering much of the UCSD campus. The operation of such a reservation system is patently incompatible with the First Amendment rights of UCSD students and faculty. Rallies and demonstrations are often spontaneous responses to unfolding events; to require prior reservations for virtually all campus demonstrations is to suppress free and open discourse on campus. Moreover, requiring prior reservations for events attracting more than ten people on a campus of more than 20,000 undergraduates is not the type of narrowly tailored "reasonable time, place and manner" restriction that can pass constitutional muster, as established by the Supreme Court in Ward v. Rock Against Racism, 491 U.S. 781 (1989). There is nothing "reasonable" about transforming the vast majority of the university’s propertyindeed, public propertyinto a "censorship area."

A school as large as UCSD cannot credibly argue that any gathering of over ten studentsless than 0.05 percent of the student bodyon the vast majority of campus requires a reservation, lest campus order be somehow threatened. Because of the size of UCSD’s student population, one could reasonably conclude that any event on campus could possibly draw more than ten attendees. UCSD proposes to effectively require, then, that all "exercise[s] of free speech" occurring on campus be explicitly reserved at least one business day prior. Such a requirement is untenable in light of UCSD’s legal and moral duty to uphold the constitutional rights of its students and faculty.

Two additional sections of the proposed policy revision present immediate constitutional concerns. First, Section 6(a)(5) ("Activities Constituting Violations of Campus Policy"), which prohibits "mak[ing] any person an involuntary audience or an involuntary participant of any event or activity," is unacceptably vague and overbroad. Under this proposed policy, any member of the UCSD community passing by an otherwise legitimate and acceptable act of free expression on campus would be empowered to complain of being made "an involuntary audience." In effect, then, UCSD community members disagreeing with particular instances of public free expression would be granted the ultimate "heckler’s veto" by means of this provision. Such a result is unacceptable at a public university that claims to be "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."

Similarly, Section 4(a) ("Political Activity"), which mandates that "members of the University staff and faculty must keep their personal Political Activity separate from their institutional role and from University activities," is unconstitutionally vague. Because "Political Activity" is never defined within the policy, UCSD staff and faculty would be left to guess as to what kind of speech constitutes punishable "Political Activity"resulting inevitably in the chilling of protected speech. Further, in addition to raising concerns about vagueness, Section 4(a)’s restriction on "Political Activity" impinges on the constitutional right of public employees to comment on matters of public concern.

Our final concern is that PPM 510-1, Section IX, C.1. would establish "Designated Public Forums" around the UCSD campus "for the exercise of legally protected rights of free expression." Specifically, the policy identifies eleven discrete areas around campus as designated public forums, and further designates any areas that are "(i) not otherwise regulated, (ii) at least 25 feet from the entrances or exits of University buildings and parking lots, and (iii) a safe distance from the curbing of campus roads" as additional public fora.

While it appears that this provision does not unduly quarantine free expression to a mere fraction of the available campus, FIRE must stress that establishing "free speech zones," as UCSD seeks to do here, undermines the fundamental conception of the American public university as a true "marketplace of ideas." Keyishian v. Bd. of Regents of the Univ. of N.Y., 385 U.S. 589, 603 (1967). We must also note that federal case law regarding freedom of expression simply does not support the transformation of public institutions of higher education into places where constitutional protections are the exception rather than the rule. Time and again, courts have determined that to be considered legal, time, place, and manner restrictions must be narrowly tailored to serve substantial governmental interests. The generalized concern for order underlying the establishment of "free speech zone" policies is neither specific nor substantial enough to justify such restrictions.

FIRE has challenged the establishment of free speech zones at universities across the nation, including at Colorado State University, West Virginia University, Seminole Community College in Florida, Citrus College in California, the University of North Carolina-Greensboro, Texas Tech University, and the University of Nevada-Reno. In all of these cases, the institutions challenged have either decided to open their campuses to expressive activities or have been forced by a court to do so. For instance, in FIRE’s case at Texas Tech, a federal court determined that Texas Tech’s policy must be interpreted to allow free speech for students on "park areas, sidewalks, streets, or other similar common areas…irrespective of whether the University has so designated them or not." See Roberts v. Haragan, 346 F. Supp. 2d 853, 861 (N.D. Tex. 2004). UCSD would be well advised to take this decision into account in considering its own policies, as the case’s holding directly conflicts with UCSD’s proposal to require that a space of "at least 25 feet from the entrances or exits of University buildings" be kept clear of "the exercise of legally protected rights of free expression." Such a large "buffer" zone cannot be reconciled with UCSD’s legal obligation to uphold the First Amendment rights of its students.

We offer the following guidelines to help institutions rewrite policies in keeping with the First Amendment and any reasonable principle of free expression:

1. The default position of any policy should be that free speech is the norm all over the campus. In general, policies should say what a university cannot do in specific language, and, to a lesser extent, what restrictions are permissible and when. An ideal policy would mirror the Bill of Rights.

2. Schools cannot restrict speech to a small portion of campus, nor to inaccessible or sparsely used/populated areas of the campus. Speech must be generally accessible to the population at largeand especially to the target audience.

3. Speech may not be unduly restricted by pre-registration regulations, onerous monetary deposit requirements, or expensive insurance requirements. No rule that allows the school substantial discretion to impose conditions on speech is allowable. Discretionary decisions need to be "content and viewpoint neutral," meaning that they only implicate factors like noise or interference with traffic flow, and nothing relating to the substance of the speech.

4. Speech activities should not be unduly restricted by "neatness" and "cleanliness" considerations. A school may require that students clean up after a rally or a leafleting, but may not stop leafleting because of a general fear that students might not clean up afterwards. Of course, if a particular group has a demonstrated history of not cleaning up after itself, then modest restrictions might be in ordersuch as a monetary bond to cover the cost of a cleaning service. Only in light of past failures should a group be saddled with such prior conditions.

5. Demonstrative activities should not be restricted in the name of aesthetics. It is reasonable to ask students to restore the campus area to its original condition after a large demonstration or leafleting (beyond normal wear and tear, which is a normal cost of operation for a university), but it is unreasonable to prohibit an expressive activity in advance for fear that it will make a mess or be unaesthetic. (This is related to No. 4 above.)

6. Virtually all universities already have the power, through existing rules, to prevent the type of disruptive conduct they might fear would take place. They can stop demonstrations that substantially impede the function of the university, block traffic flow, or prevent students from sleeping or studying. They can punish students who engage in vandalism or violence. The university also has increased power to regulate the presence of those speakers who have not been invited to campus and who are otherwise unaffiliated with the university. However, the university should not simply assume before the fact that student or faculty expression will be impermissibly disruptive. Rather, the university should accept its role as an ultimate free speech zone.

Again, we urge UCSD to immediately reconsider the proposed changes to its "Speech, Advocacy and Distribution of Literature" policy in light of the constitutional concerns presented. As we concluded in our previous letter: "Let your students exercise their basic legal, moral, and human rights; let them speak, assemble, and protest as their consciences dictate."

We look forward to hearing from you. Due to the time-sensitive nature of this matter, we request a response as soon as possible.

Sincerely,

Samantha Harris
Director of Legal and Public Advocacy

cc:
Steven Relyea, Vice Chancellor of Business Affairs, UCSD
Penny Rue, Vice Chancellor of Student Affairs, UCSD
Mark Appelbaum, Vice Chancellor of Academic Affairs, UCSD
Sally Brainerd, Associate Controller, UCSD
UCSD Freedom of Speech Coalition

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