FIRE Warns U. of California President: Reject Recommendation, Don’t Pick Fight with First Amendment

OAKLAND, Calif., August 8, 2012—In a letter sent today, FIRE warns University of California System (UC) President Mark Yudof against enacting unconstitutional "hate speech" policies on UC's campuses. FIRE’s letter responds to a recent recommendation from members of an official advisory body that, in response to alleged anti-Semitism on campus, UC “accept the challenge” of First Amendment litigation. FIRE urges President Yudof to reject the recommendation, reminding him that decades of legal precedent make clear that broad, content-based bans on student speech violate the First Amendment.

"Many people on campus see speech codes as a noble solution that will eradicate ideas and thoughts we disdain. But censorship has never changed hearts or minds," said FIRE President Greg Lukianoff. "While the speech codes recommended here would not hold up in court, this belief that censorship is not just acceptable, but what 'wise and enlightened' people should do, is a long-term threat to our freedom."

On July 9, 2012, members of UC's Advisory Council on Campus Climate, Culture and Inclusion issued formal recommendations to President Yudof. The recommendations—titled the "University of California Jewish Student Campus Climate Fact-Finding Team Report & Recommendations"—seek to "identify steps needed to make campuses more inclusive and welcoming for Jewish students as well as all community members."

In pursuit of this laudable goal, the fact-finding team shockingly recommends that UC deliberately violate the First Amendment. Specifically, the fact-finding team recommends that "UC should push its current harassment and nondiscrimination provisions further, clearly define hate speech in its guidelines, and seek opportunities to prohibit hate speech on campus." Recognizing that policies banning "hate speech" would provoke First Amendment litigation, the team nevertheless advises UC to "accept the challenge."

FIRE's letter asks President Yudof to promptly and unequivocally reject the fact-finding team's misguided recommendation. Noting that there is no "hate speech" exception to the First Amendment, FIRE reminds President Yudof—a First Amendment scholar—that the Supreme Court has consistently struck down content-based bans on speech. For example, in R.A.V. v. St. Paul (1992), the Court invalidated a bias crime statute that regulated "hate speech," observing that "[t]he point of the First Amendment is that majority preferences must be expressed in some fashion other than silencing speech on the basis of its content."

FIRE's letter also reminds President Yudof that for more than two decades, state and federal courts have consistently struck down public universities' overly broad and vague harassment and nondiscrimination policies. Given the weight of this legal precedent, adopting the fact-finding team's recommendation that UC "push its current harassment and nondiscrimination provisions further" would all but ensure an expensive and embarrassing courtroom defeat that wastes California taxpayers' dollars. In fact, because the law regarding student speech rights on public campuses is so clearly established, FIRE's letter explains that any attempt to enforce bans on protected speech might leave UC administrators open to personal liability in court.

The fact-finding team's recommendation, now being reviewed by President Yudof and the full advisory council, has drawn criticism from prominent legal observers. Harvard Law Professor and FIRE Board of Editors member Alan Dershowitz characterized the recommendation as "a very serious mistake" in comments to The Forward, speculating that "[t]he first victims of the policy would be pro-Israel advocates" and that it "will backfire" if enacted.

"Inclusiveness cannot be secured through censorship," said William Creeley, FIRE's Director of Legal and Public Advocacy. "Silencing students is not the answer. The team's recommendation will inflame tensions, not quell them—all while subjecting UC, its employees, and California taxpayers to a costly and inevitable First Amendment defeat in court."

FIRE is a nonprofit educational foundation that unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals from across the political and ideological spectrum on behalf of individual rights, due process, freedom of expression, academic freedom, and rights of conscience at our nation's colleges and universities. FIRE's efforts to preserve liberty on campuses across America are described at thefire.org.

CONTACT:

William Creeley, Director of Legal and Public Advocacy, FIRE: 215-717-3473; will@thefire.org
Mark G. Yudof, President, University of California System: 510-987-9200; president@ucop.edu