Cal Poly Pomona Student Sues Over ‘Free Speech Zone’

April 9, 2015

By Beau Yarbrough at LA Daily News

POMONA >> A student is suing Cal Poly Pomona after he was told that political speech on campus could only occur in a tiny “free speech zone.”

Nicolas Tomas, 24, a senior majoring in nutrition, began handing out Vegan Outreach pamphlets advocating the vegan lifestyle and decrying the treatment of farm animals in the fall of 2013.

“I’m passionate about animal rights, and one of the things we do is we advocate for a vegan diet,” he said. “Because there’s no animal products in the diet and that’s one of the major causes of animal exploitation.”

By Tomas’ account, he could give away hundreds of fliers over several hours. Most students with whom he spoke as they entered or left theuniversity’s parking garage had no problem with it, he said. But Tomas often heard from administrators.

“There’d usually be some level of aggression,” Tomas said. “‘Do you have a permit? Do you have a permit? You need to leave if you don’t have a permit.’”

To clarify the issue, he met in the fall with administrators, who laid down the law: Tomas had to restrict his pamphlet distribution to 154 square feet of grass between the university library and Bronco Student Center.

“I said, ‘I don’t think this is constitutional, and it’s violating my free speech,’” he said.

Tomas researched the issue online, but administrators refused to meet with him again.

“They weren’t going to make any changes,” he said.

And then, on the morning of Feb. 4, as Tomas was distributing fliers by the university’s CLA administrative building, university police got involved.

“Two police officers and a man in a suit came up to me,” he said. “I started filming because I knew they were here for me.”

There were no two ways about it. Tomas would have to restrict his activities to the designated 154 square feet and wear a university-issued badge, signed by an administrator, declaring that he had permission.

In the course of researching the issue, Tomas had come across FIRE, the Foundation for Individual Rights in Education, a non-profit that advocates for free speech on campuses.

“Complying with the First Amendment isn’t optional for our public institutions of higher education,” Will Creeley, FIRE’s vice president of legal and public advocacy, wrote in an email on Thursday. “Decade after decade of rulings from the Supreme Court on down have made very clear that public universities like Cal Poly Pomona must respect their students’ rights to free speech. The First Amendment is designed to protect citizens — and students like Nicolas — who want to speak their minds about issues they care about. In this country, you don’t need a government permission slip to stand up and speak out.”

On March 31, Washington, D.C., attorney Robert Corn-Revere, the lawyer hired by FIRE, filed a suit in U.S. District Court,in Los Angeles asking a judge to declare Cal Poly’s free speech policy unconstitutional. The suit also seeks legal fees and compensation for Tomas’ “deprivation of fundamental rights.”

“The problem with the concept of ‘free speech zones’ is that, as Americans, we live in a country protected by the First Amendment. If there’s a free speech zone, it runs from the Atlantic to the Pacific and from Canada to the Mexican border,” Corn-Revere said Thursday. “Most public universities in the United States have some sort of restrictive policy on speech. … Violating people’s rights is not cost-free.”

In December, FIRE wrung a $110,000 payment out of Citrus College after a student at the Glendora school sued over the campus’ free speech area policy. The college settled the case and agreed to expand its zone to most areas on campus and to change procedures to make it easier to speak on campus.

There’s no California State University-wide rule in place similar to Cal Poly Pomona’s restrictions on protest, according to Laurie Widener, spokeswoman for the CSU system. But there is a “Free Speech Handbook,” intended to guide CSU employees, and many of the campuses have rules resembling those of Cal Poly Pomona, according to Widener.

The handbook appears to argue against the creation of limited “free speech zones.”

“A public forum is defined as public property that has traditionally been available to assembly or debate — e.g., streets, parks and lawn areas,” the manual reads in part. “CSU may not prohibit all speech activity in such locations, and a very high standard is required to enforce any content-based prohibitions — i.e., prohibitions that reference the particular message to be delivered. Any regulation must be necessary to serve a compelling interest and narrowly drawn to achieve that end. CSU may regulate the time, place, and manner of speech in public forums if the regulations are content-neutral, narrowly tailored to serve a significant interest and leave open ample alternative channels of communication.”

Campus officials misspoke about the campus free speech policy to Tomas, according to Cal Poly spokeswoman Esther Tanaka.

“The whole campus is a free speech zone, so long as it’s not within 50 feet of a class,” she said, “but (the spot between the library and student center) is where most of the people go, because that’s where the students are.”

There are some restrictions on where these activities can take place.

According to a Dec. 1, 2014, Cal Poly presidential order, an update to 2002 and 2008 policies, “approved freedom of expression activities may take place on campus with the following exceptions: inside parking lots and university buildings and within 50 feet of any location in which instructional, educational and/or official business activities are being conducted. Preferred locations are University Park and University Quad.”

The sidewalk leading from the parking garage to the campus doesn’t seem to violate the order, nor does Tomas’ distribution of fliers next to the CLA building, where Tomas’ video appears to show him being shut down by university police.

“It might be, in this case, that (employees) were not clear on the presidential guidelines,” Tanaka said. “As long as you’re not preventing people from where they want to go and as long as you’re not disrupting classes, those are the two big (restrictions).”

The university had not received its copy of the suit, as of Wednesday morning, she said.

As for Tomas, he’s optimistic that the law is on his side and that the policy will be struck down before he’s set to graduate in the spring of 2016.

“It’s a disservice to the public and students,” he said. “For now, I’m going to play it by ear. … Hopefully, sooner rather than later, there will be a decision.”

Schools: California State Polytechnic University – Pomona Cases: California State Polytechnic University, Pomona – Stand Up For Speech Lawsuit FIRE’s Stand Up For Speech Litigation Project