When students return to the University of California-Los Angeles (UCLA) this fall, they’ll have one less policy restricting their First Amendment rights to worry about. That’s because UCLA has revised an unconstitutional posting policy after receiving a warning letter (PDF) from the Alliance Defense Fund (ADF).
Before ADF’s involvement, UCLA’s policy (.doc) prohibited registered student groups from posting materials that "tend to promote demeaning social stereotypes based on race, ethnicity, culture, gender, or sexual orientation." As written, the policy presented two central problems. First, it was overly broad, restricting student groups from voicing a vast amount of speech protected by the First Amendment. For example, under the terms of the policy, student groups would be unable to post a flyer advertising a debate about whether European attitudes toward vacations are enlightened or simply evidence of sloth—because so doing arguably furthers a "demeaning social stereotype" about Europeans. Nor could a student group advertise a showing of Rocky IV (anti-Russian), Deliverance (anti-Southern), The Godfather (anti-Italian), Borat (anti-Kazakhi), South Park: Bigger, Longer, & Uncut (anti-Canadian), or Buffalo ‘66 (anti-Western New Yorker).
While these examples may seem implausible, FIRE’s case archives demonstrate that students have been punished on campus under similar rationales. For example, in 2002, Cal Poly student Steve Hinkle was punished for posting flyers advertising a speech by Mason Weaver, author of a book titled It’s OK to Leave the Plantation, which argues against dependence on government. The flyer contained only the title of the book, the location and date of the speech, and a picture of the author, but Hinkle was punished nevertheless after his fellow students claimed that the flyer was "offensive." After Hinkle filed suit with FIRE’s help, Cal Poly settled out of court, clearing his record and allowing him to post flyers. For other examples, check out our 2008 case at Colorado College, where two students were punished for a satirical "pro-male" flyer; our 2006 case at Columbia University, where the men’s ice hockey team was suspended for posting an "offensive" flyer; or our 2005 case at Hampton University, where students were threatened with expulsion for handing out flyers critical of President George W. Bush. In all of these cases, colleges punished students for flyers containing expression that others found offensive, in violation of the First Amendment or the colleges’ own commitment to free speech.
The other major problem with UCLA’s policy is that it was impermissibly vague. Because it left a key term—"demeaning"— undefined, student groups seeking to obey the policy were forced to guess at whether their flyer would subject them to punishment. For example, would the College Democrats run afoul of the policy by distributing a flyer mocking Republicans as a "party of old, rich, white guys"? Would that be a sufficiently "demeaning" cultural stereotype to warrant discipline? How about a flyer advertising an Oktoberfest party with a picture of Germans drinking beer and wearing lederhosen? What about a lecture on U.S. relations with China advertised by flyers featuring pictures of the Chinese army marching in lockstep? How about a student group sponsoring a discussion of the Mohammed cartoons—would they be able to use the cartoon on their flyers? The uncertainty engendered by UCLA’s vague policy likely left many students questioning whether their speech, while protected by the First Amendment, might nevertheless subject them to discipline. As a result, these students might have rationally chosen to self-censor instead of risking punishment, meaning that UCLA’s vague policy had a "chilling effect" on campus speech.
The revised policy, maintained by UCLA’s Center for Student Programming, now omits this overly broad and vague restriction.
We’re pleased that UCLA, once notified of the problem, decided to revise the policy. It wasn’t a close call, in terms of the First Amendment violation at issue. As ADF Legal Counsel (and former FIRE Legal Intern) Heather Gebelin Hacker observed, the policy was "clearly unconstitutional and could have been used to silence the expression of those who hold to certain religious and political views."
Kudos to UCLA for scrapping the speech code and to ADF for prompting the revision. Now if UCLA would just revise its remaining speech codes…