The University of California, San Diego (UCSD) and its student government have violated the First Amendment by freezing funds for 33 student media organizations, dissolving the student-run television station, and threatening to punish students involved in a controversy over a party invitation for an event called the "Compton Cookout." Student government president Utsav Gupta has explained that his repressive actions were due to "fracturing of the student body on an issue" and "hateful speech." Further, under pressure from state legislators who seek to punish protected speech, UCSD has launched "aggressive investigations" into the party invitation. After many students came to the Foundation for Individual Rights in Education (FIRE) for help, FIRE has written two letters to UCSD defending the First Amendment both on and off campus.
The story has exploded over the weekend. In addition to FIRE’s letters, the best summaries so far have been written by UCSD student publication The California Review here and here, which include a lot of details unreported elsewhere and with many links for further information. Here’s the Associated Press story on the media funding freeze.
The controversy started when some people noticed an online invitation to a party on social networking site Facebook. The party, to be held off campus in the Regents [condominium] community, included a variety of intentionally stark negative racial stereotypes about African Americans and African American women in particular. The party reportedly was a DVD release party organized by "Jiggaboo Jones," a self-proclaimed "Internet star radio personality" whose picture was featured on the invitation. Jones, also known as Nipsey Washington, is primarily a disc jockey and comedian whose persona relies on a "shock jock" brand of deliberately provocative and offensive expression. The idea of a "Compton" party with this theme appears to be partly an allusion to Compton’s significant place in the history of the musical genre of gangsta rap, notably in the seminal album Straight Outta Compton (1988) by hip hop group N.W.A.
Whether or not Jones’ expression has been wildly, sadly misunderstood, the focus of attention at first centered on the UCSD students who participated in (and perhaps helped organize) the party and the fraternities to which they belong. Fraternities are free to determine their own membership and enforce their own rules, and that’s their business so long as UCSD does not coerce them to take action. However, UCSD is bound by the First Amendment and may neither investigate nor punish the students or student organizations linked to the party and party invitation. Even the investigation of protected speech is a violation of the rights of the person investigated—see Sweezy v. New Hampshire, 354 U.S. 234, 245, 248 (1957).
So far, however, UCSD has not ruled out punishment. What is more, UCSD has chilled speech on campus by launching "aggressive investigations," perhaps under pressure from state legislators, who held a rally in Sacramento last week. Legislators, completely disregarding the First Amendment, called for investigation and punishment, not just moral censure. Those calling for punishment include Speaker-elect John A. Pérez, Speaker Karen Bass, and most of all Assembly member Isadore Hall, III (whose district includes Compton), who "want[s] names" in order to facilitate suspensions or expulsions.
FIRE’s letter today to Chancellor Fox addresses this pressure. Although UCSD officials have been thus far sensitive to the First Amendment rights of those involved, we note several concerns. One of them is that UCSD’s "Principles of Community," a kind of moral code for the campus, has been invoked as though it may have disciplinary authority instead of being a merely aspirational set of moral values. As we wrote:
Any determination by you or your administration that the Principles of Community are not merely aspirational, but rather comprise mandatory beliefs, attitudes, and demeanors, would unquestionably violate the First Amendment. For example, the Principles of Community state that UCSD is "committed to the highest standards of civility and decency toward all." As a statement of institutional values, without any possibility of official enforcement, this moral code is perfectly acceptable. But if this commitment to "civility and decency toward all" were to constitute required behavior, subject to punishment if not observed, then UCSD would be violating the First Amendment rights to freedom of expression and freedom of conscience of its students.
Specifically, if the Principles are deemed enforceable via the code of conduct, they are constitutionally impermissible for both overbreadth and vagueness. The Principles rely on impermissibly vague terms—for example, "dignity," "mutual respect," "civility and decency," and "abusive or demeaning treatment"—that could, in application, mean virtually anything. A regulation is said to be unconstitutionally vague when it does not "give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly." Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972). Students at UCSD would be forced to guess what their peers and your administration might deem insufficiently respectful and as a result would likely self-censor to such a degree that expression on campus would be chilled. Moreover, even assuming that a student was able to figure out which speech is and is not "abusive" or "demeaning," the fact that a student seemingly may be punished simply for being uncivil means that engaging in wide swaths of constitutionally protected expression may serve as grounds for punishment. Such a result is simply unacceptable under the First Amendment.
Indeed, a California judge has already deemed a "civility" requirement unconstitutional:
In November of 2007, U.S. Magistrate Judge Wayne Brazil issued a preliminary injunction prohibiting San Francisco State University (SFSU) and the California State University (CSU) System as a whole from enforcing a "civility" policy which had served as the basis for an investigation of an SFSU student group that had engaged in protected but unpopular political speech on campus. The injunction led to a settlement in March 2008 that permanently revised the CSU System’s civility policy, affecting more than 400,000 students. College Republicans at San Francisco State University v. Reed, 523 F. Supp. 2d 1005 (N.D. Cal. 2007).
Education writer Erica Perez also followed up on my point that the party is reminiscent of an on-campus "ugly woman contest" organized by a fraternity and a sorority, featuring similarly outlandish race-based and gender-based expression. The fraternity was punished but prevailed in court, and the United States Court of Appeals for the Fourth Circuit upheld the ruling.
FIRE’s letter yesterday to Utsav Gupta, Associated Students of USCD (ASUCSD) President, and UCSD Chancellor Marye A. Fox discussed the media funding freeze and the investigation and punishment of the TV station over protected speech. FIRE pointed out that these actions violate the constitutional rights of the organizations involved, not least because ASUCSD is an agent of UCSD and is thus bound by the First Amendment. We also noted that Gupta failed to follow official procedures for dealing with complaints and possible non-compliance at the TV station, Student Run Television (SRTV), by simply shutting down the station "as soon as he heard about the material being aired."
UCSD and ASUCSD must immediately restore access to funding for all organizations, put SRTV back on the air, follow the official procedures for handling complaints at SRTV, refrain from investigating or punishing protected speech both on and off campus, and publicly announce that protected speech will never be investigated. There is quite a lot that UCSD may legally do—including condemning the event, as they have already—but much damage to free speech on campus has already been done. This damage must be undone immediately so that UCSD can focus on answering speech with which it disagrees with more speech.