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UCSB Associated Student Senate Grapples with Tough First Amendment Issue

Things are starting to get back on track in the Associated Student Senate at the University of California at Santa Barbara (UCSB). As we have described here and here, last month, the Senate passed a resolution calling on its staff and the university administration to pressure Facebook to shut down two gossip pages: "UCSB Hook-Ups" and "UCSB Confessions." The College Republicans and others on campus challenged the resolution as unconstitutional censorship, prompting the Senate to revisit the issue in its most recent session. As UCSB student newspaper The Bottom Line reported, the debate would have made Justice Louis Brandeis proud. (First Amendment fans will remember that Justice Brandeis wrote in his Whitney v. California concurrence that, when faced with "falsehood and fallacies ... the remedy to be applied is more speech, not enforced silence.") FIRE hopes the next step will be for the Senate to rescind the resolution itself.

In speaking against the resolution, College Republicans President Chris Babadjanian explained:

I think that we are lying to ourselves by saying that we are going to create a safer environment by taking this [the Facebook pages] off the web or changing the name[.] ... I don't think that censorship is the way to do this. If anything, I believe the more [visibility], the better. Because like those signs on the bike path, it opened peoples' eyes.

In response, Brandon Pineda, the co-chair of Student Commission on Racial Equality (SCORE), argued that the free speech gives the Senate the right to condemn the Facebook pages. Pineda is absolutely correct when he says that: 

We're using our free speech to condemn this page and say that it does perpetuate the rape culture that UCSB is known for and that the perpetuation of culture and highlighting harassment does not reflect the university and community as a whole.

Unfortunately, the Senate's resolution goes beyond condemnation by asking the administration—a government agency bound by the First Amendment—to pressure Facebook to shut the pages down. This is where the resolution goes astray, and this is why it must be rescinded. SCORE, the Associated Student Senate, the College Republicans, or anyone else can criticize in the most vigorous terms possible speech they don't like because it is hurtful. That is the essence of Justice Brandeis' remedy of more speech. But government has to play by the rules. The First Amendment does not allow the government (in this case the UCSB administration) to give into the critics' demand to stop the game and declare them the winners. That's unconstitutional censorship, and that is exactly how the Student Senate's resolution crossed the line from using its own right to condemn speech into calls for unlawful censorship. 

Credit is due to everyone at UCSB for engaging in a thoughtful discussion about these important First Amendment rights. But the Senate still needs to show it now understands that condemnation and censorship are not the same thing. FIRE hopes to be able to publicize a Senate resolution that rescinds its call on the university to suppress the Facebook pages—but which can include pointed criticism of those pages, as desired.  

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