UC Irvine selectively enforces electronic communications policy, suppresses support for striking students

As graduate students in the University of California system strike for higher wages, one university is suppressing support for striking students through selective enforcement of its electronic communications policy. The University of California Irvine is violating student rights by preventing its graduate and undergraduate student governments from expressing support for the campus’s ongoing graduate student strike.

UCI’s “ZotMail” system sends messages en masse to students and employees at the university. Although UCI administrators must transmit the ZotMail messages, student groups may request that the university send approved messages through the system. 

UCI’s student governments — Associated Graduate Students and Associated Students — both requested to send messages concerning the ongoing strike through ZotMail. The Associated Graduate Students’ message explained faculty members’ rights during the ongoing strike, while the Associated Students’ message expressed support for graduate students during the strike. Administrators denied the requests because they claimed the messages were “political” in violation of the university’s ZotMail guidelines.

On its face, this doesn’t seem problematic, as UCI’s ZotMail guidelines broadly prohibit messages that “advocate an individual’s or organization’s political or religious position,” and UCI may place certain limits on the type of speech expressed in forums it creates like ZotMail. However, as we pointed out to UCI in a letter last week, UCI erred in three ways: Its denial of the messages appears viewpoint based, it fails to define the “political” speech it prohibits, and it exercises an unconstitutional prior restraint in refusing the messages.

UCI unconstitutionally discriminates against messages based on viewpoint

Although the policy governing UCI’s ZotMail platform prohibits students’ political speech, UCI has allowed students to send political messages in the past — and has sent out more than a few of its own political messages as well. 

Although UCI may establish certain viewpoint-neutral restrictions on ZotMail and still meet its First Amendment obligations, it cannot selectively enforce those restrictions to censor speech it does not like.

Just weeks ago, Dean of Students Rameen Talesh sent a ZotMail message offering support for the university’s “queer and trans friends and family” after the shooting in Colorado Springs. In 2020, UCI permitted the Associated Graduate Students to send a ZotMail message expressing support for Asian and Asian-American students after the outbreak of the COVID-19 pandemic. In 2017, the university president sent a ZotMail message conveying condolences to those injured and killed in Charlottesville. And in 2016, following the election of then-President Donald Trump, the UC System president sent a ZotMail message mentioning the election, expressing that diversity is central to the university system’s mission, and committing to foster an inclusive environment. Each of these instances involves political speech on the part of students, university staffers, or UCI itself — and these are just a few of the many examples over the years. Yet UCI declined the Associated Graduate Students’ and Associated Students’ strike-related messages.

As a public school bound by the First Amendment, UCI cannot discriminate based on viewpoint — regardless of the forum. As we wrote UCI:

When authorities “target[] not subject matter but particular views taken by speakers on a subject,” it is a “blatant” violation of the speaker’s freedom of expression.  This freedom must include the freedom to express viewpoints unpopular with the general public or with university administrators. As the Supreme Court has made clear, “[v]iewpoint discrimination is censorship in its purest form and government regulation that discriminates among viewpoints threatens the continued vitality of ‘free speech.’”

Because the university has selectively enforced its policy — previously allowing students to send political messages, then prohibiting them in this particular case involving conflict with the system — it appears to prohibit the Associated Graduate Students’ and Associated Students’ messages because they express disfavored opinions. 

UCI’s policy is unconstitutionally vague

Even if UCI did not selectively enforce its policies, its ZotMail Guidelines fail to define what constitutes prohibited “political expression,” leaving the policy unconstitutionally vague and granting administrators unfettered discretion to subjectively determine which messages to approve. 

In Minnesota Voters Alliance v. Mansky, the Supreme Court held a state policy was not reasonable because its lack of objective standards, which would have restrained discretion, allowed poll workers to subjectively determine what apparel displayed prohibited “political” messages when screening individuals at polling place entrances. UCI’s prohibition of “political” speech is similarly unconstitutional.

UCI exercises an unconstitutional prior restraint

UCI’s ZotMail Guidelines also create an unconstitutional system of prior review by requiring that administrators screen and approve all ZotMail messages before sending them. Making matters worse, UCI’s policy requires a week of review time, which prevents speech on urgent matters of concern from reaching its audience.

Additionally, UCI’s failure to approve the Associated Graduate Students’ and Associated Students’ messages imposes an unconstitutional prior restraint on student expression, meaning it, too, suppresses speech before it takes place.

As we told UCI in our letter:

Prior restraints are “the most serious and least tolerable infringement” of the First Amendment. Courts, including the Supreme Court, have long held that prior restraints are permissible only in the most severe circumstances, such as in the event of a demonstrated threat to national security.

UCI must comply with its constitutional obligations by allowing more speech 

Although UCI may establish certain viewpoint-neutral restrictions on ZotMail and still meet its First Amendment obligations, it cannot selectively enforce those restrictions to censor speech it does not like. UCI can live up to its obligations by countering the speech it dislikes — namely speech in support of striking graduate students — with its own criticism of those graduate students’ speech or actions.

We hope UCI responds by opening ZotMail up to more speech — but regardless, it must define the speech it prohibits and enforce its policies equally.

FIRE defends the rights of students and faculty members — no matter their views — at public and private universities and colleges in the United States. If you are a student or a faculty member facing investigation or punishment for your speech, submit your case to FIRE today. If you’re faculty member at a public college or university, call the Faculty Legal Defense Fund 24-hour hotline at 254-500-FLDF (3533).