San Diego's American Civil Liberties Union Writes Three Letters Defending Free Speech at UCSD
February 26, 2010
by Adam Kissel
On Tuesday, FIRE reported that 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." In the face of threats of litigation from the media organizations, Gupta appears willing to get sued—"I'm not going to bow down to threats of litigation"—and he told The Guardian's Angela Chen that he "is working with UCSD legal counsel," demonstrating that his administration and UCSD's administration are in this one together.
Further, under pressure from state legislators who seek to punish protected speech, UCSD has launched "aggressive investigations" into the party invitation. Steve Schmidt for the San Diego Union-Tribune reports today that UCSD administrators are "focusing on nine students who have been identified as participants" at the party. Yesterday, I refuted any reasonable argument that the party invitation could count as discriminatory harassment under UCSD's new discriminatory harassment policy, a policy that UCSD apparently didn't even know it had.
Round two is apparently focused not just on the invitation but on the alleged crime of merely participating in the party. And if Chen's earlier article on the witch hunt is any indication, the university is even going after charges of "unlawful or unauthorized use of any university property." We certainly hope that UCSD is not suggesting that any use by students of any UCSD property must be pre-authorized by UCSD. If the exceedingly vague term "unauthorized" is really to be applied to protected speech involving university property, UCSD will just have one more black mark against it when it comes to following the First Amendment.
After many students came to the Foundation for Individual Rights in Education (FIRE) for help, FIRE wrote three letters to UCSD. The Student Press Law Center's Adam Goldstein also has weighed in strongly on the side of free speech on The Huffington Post:
When Gupta is allocating funds collected by the state for state purposes, he's acting as an agent of the government. That means that the State of California, not Utsav Gupta, gets to decide when speech should or should not be funded.
Of course, the State of California's discretion is limited here, too, by its participation in the United States of America and the latter's Constitution.
Which brings us back to the First Amendment, as applied to the states by the Fourteenth. Does it offend the First Amendment for a government agent to cut off funding to student media because he doesn't like what they said? The Supreme Court thinks it does.
This has nothing to do with how offended the campus has been by these comments. The campus has the right to be offended. This is about one low-ranking government functionary who took his well-justified feelings of outrage and put them into motion in a way that offends the Constitution.
If Gupta believes the Constitution does not protect the right to outrage your government, I wonder—what exactly does he think the framers of our democracy were intending to accomplish? The right to say nice things to each other? The right to politely ask King George if he wouldn't mind not imprisoning quite so many people for seditious libel?
And what good has come of this freeze? It has created an echo chamber where student media wanting to refute the offensive viewpoints are limited in their ability to react. It has not made the words vanish or the sentiments softer. Now, when UCSD most needs to have its students talk to each other, the broadest methods for that discussion are hamstrung.
Meanwhile, the American Civil Liberties Union (ACLU) of San Diego & Imperial Counties has written three letters to UCSD focusing on free speech, plus a fourth letter (PDF) arguing that UCSD should "promote diversity in all appropriate ways, consistent with free speech and other legal rights." The ACLU's letters also are very strong and add further arguments to FIRE's points. On February 23, the ACLU's David Blair-Loy wrote Chancellor Marye Anne Fox (PDF):
It is troubling that the administration has raised the prospect of a letter of censure or expulsion, noting that sanctions "may be more severe if the violations are connected with, arise from, or are motivated by bias or hate," and even referring to possible criminal prosecution.
Without a clear statement that UCSD will not investigate or impose sanctions for protected speech, these veiled threats exert a clear chilling effect on First Amendment rights. Intentionally or not, the university is sending a message to students to think twice before speaking out on any controversial issue, for fear that giving offense to any group will lead to investigation and possible discipline. That chilling effect will inevitably lead to self-censorship, which is precisely what the First Amendment exists to prevent.
As the university has said, the proper response to offensive speech is more speech, not less. We encourage you to uphold that principle by making absolutely clear that UCSD will immediately cease any investigation of protected speech. The university should make clear that any investigation is targeted only at conduct unprotected by the First Amendment.
To continue the investigations without such assurances would violate the First Amendment, regardless of the result of the investigations. We concur with the exhaustive First Amendment analysis set forth in FIRE's letter to you of today and add only the following.
[U]nder Education Code section 66301(a), the university shall not "make or enforce a rule subjecting a student to disciplinary sanction solely on the basis of conduct that is speech or other communication that, when engaged in outside a campus of those institutions, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article I of the California Constitution." This statute guarantees, at a minimum, that "students have the same free speech rights on campus that they have off-campus." Crosby v. South Orange County Community College Dist. Therefore, even if some portion of the conduct code might apply, it cannot be enforced against speech that would be constitutionally protected outside of campus or campus sponsorship.
Third, even if the code of conduct could be construed to cover off-campus speech not sponsored by the university or a registered student organization, the university may not constitutionally regulate the speech at issue. See, e.g., Layshock ex rel. Layshock v. Hermitage School Dist.; Thomas v. Board of Education. [Exact citations omitted.]
And on February 24, Blair-Loy wrote Fox and Gupta (PDF):
I concur with FIRE's letter to you of February 22 that the First Amendment prohibits both UCSD and its student government from retaliating against SRTV or any other student media organization because of the viewpoints expressed by any such organization. ...
Section 4.2 of the ASUCSD Standing Rules opens up SRTV to students as "a regular broadcast medium for artistic and informative expression" and makes student producers "ultimately responsible for the content of the show they produce," without any restrictions except for prohibitions on copyrighted and "obscene" material and time limitations on "indecent" material. SRTV is therefore at least a "limited public forum ... that the government intentionally has opened to certain groups" for free expression. Legal Aid Services of Oregon v. Legal Services Corp.
It is ... clear that student media funding is "a university program for subsidizing and distributing student publications" that qualifies at least as a limited public forum for student expression. Legal Aid Services.
In such a forum, "when the University does not itself speak or subsidize transmittal of a message it favors but instead expends funds to encourage a diversity of views from private speakers," a university may not deny or limit funding because of the "particular views taken by speakers on a subject." Rosenberger v. Rector and Visitors of University of Virginia. As the Court noted, "If the topic of debate is, for example, racism, then exclusion of several views on that problem is just as offensive to the First Amendment as exclusion of only one." Therefore, neither UCSD nor ASUCSD may cancel SRTV programming or freeze funding to other student media organizations due to the viewpoints expressed by certain students on SRTV, even if those viewpoints are considered "hateful." Nor may UCSD or ASUCSD assert the right to regulate the viewpoints expressed by student media in the future. See Papish v. Board of Curators of the University of Missouri.
It is particularly problematic to take action against student media that had nothing to do with the offensive speech broadcast over SRTV. In any case, ASUCSD may not deny funding to any student media organization due to viewpoints expressed in its publication. As stated in the 2009-2010 Associated Students Media Handbook, "Neither the administration nor the students can ... censor or confiscate a publication, withdraw or reduce its funding ... or take any other action that is motivated by an attempt to control, manipulate or punish past or future content." [Exact citations omitted; emphasis added.]
Does Utsav Gupta really think he is up to challenging the First Amendment so brazenly? Does Chancellor Fox? Presuming the media organizations' threats of litigation are real, and I hope they are, UCSD must act immediately before it follows the lead of Cal Poly and San Francisco State and ends up in a First Amendment lawsuit where taxpayer money that could have gone to student services goes to attorneys' fees instead.