Victory at University of California, San Diego as Unconstitutional Speech Code Proposal Shelved

In the face of two letters from FIRE and vocal student opposition, the University of California, San Diego (UCSD) has unceremoniously dropped proposed revisions to UCSD's speech code that would have been in blatant violation of the First Amendment rights of UCSD students and faculty.

FIRE first wrote to UCSD President Marye A. Fox to express our concern about the proposed changes to the university's Policy on Speech, Advocacy and Distribution of Literature on University Property back in June of last year. Our letter pointed out several obviously unconstitutional portions of the new code. First, we addressed the stipulation that reservations would be required for any gathering of 10 or more people:

The operation of such a reservation system is patently incompatible with the First Amendment rights of UCSD students and faculty. Rallies and demonstrations are often spontaneous responses to unfolding events; to require prior reservations for virtually all campus demonstrations is to suppress free and open discourse on campus. Moreover, requiring prior reservations for events attracting more than 10 people on a campus of more than 20,000 undergraduates is not the type of narrowly tailored "reasonable time, place and manner" restriction that alone can pass constitutional muster, as established by the Supreme Court in Ward v. Rock Against Racism, 491 U.S. 781 (1989). There is nothing "reasonable" about transforming the vast majority of the university's property—indeed, public property—into a "censorship area."

A school as large as UCSD cannot credibly argue that any gathering of over 10 students—less than 0.05 percent of the student body—on the vast majority of campus requires a reservation, lest campus order be somehow threatened. Because of the size of UCSD's student population, one could reasonably conclude that any event on campus could possibly draw more than 10 attendees. UCSD proposes to effectively require, then, that all "exercise[s] of free speech" occurring on campus be explicitly reserved at least one business day prior. Such a requirement is untenable in light of UCSD's legal and moral duty to guarantee the constitutional rights of its students and faculty.

Next, we pointed out the constitutional infirmities of the code's attempt to prohibit "mak[ing] any person an involuntary audience or an involuntary participant of any event or activity" and to prevent faculty members from mixing "personal Political Activity" with their employment:

Two additional sections of the proposed policy revision present immediate constitutional concerns. First, Section 6(a)(5) ("Activities Constituting Violations of Campus Policy"), which prohibits "mak[ing] any person an involuntary audience or an involuntary participant of any event or activity," is unacceptably vague and overbroad. Under this proposed policy, any member of the UCSD community passing by an otherwise legitimate and acceptable act of free expression on campus would be empowered to complain of being made "an involuntary audience." In effect, then, UCSD community members disagreeing with particular instances of public free expression would be granted the ultimate "heckler's veto" by means of this provision. Such a result is unacceptable at a public university that claims to be "committed to ensuring that the exercise of constitutional rights of free and open discussion, expression, and advocacy are not only protected but encouraged as a vital aspect of the spirit of free inquiry appropriate to a university setting."

Similarly, Section 4(a) ("Political Activity"), which mandates that "members of the University staff and faculty must keep their personal Political Activity separate from their institutional role and from University activities," is unconstitutionally vague. Because "Political Activity" is never defined within the policy, UCSD staff and faculty would be left to guess as to what kind of speech constitutes punishable "Political Activity”—resulting inevitably in the chilling of protected speech. Further, in addition to concerns about vagueness, Section 4(a)'s restriction on "Political Activity" impinges on the constitutional right of public employees to comment on "matters of public concern," discussed at length in our May 16 letter.

Finally, we took issue with UCSD's attempt to create eleven separate "free speech zones" around campus:

Our final concern is that PPM 510-1, Section IX, C.1. would establish "Designated Public Forums" around the UCSD campus "for the exercise of legally protected rights of free expression." Specifically, the policy identifies eleven discrete areas around campus as designated public forums, and further designates any areas that are "(i) not otherwise regulated, (ii) at least 25 feet from the entrances or exits of University buildings and parking lots, and (iii) a safe distance from the curbing of campus roads" as additional public forums.

While it appears that this provision does not unduly quarantine free expression to a mere fraction of the available campus, FIRE must stress that establishing "free speech zones," as UCSD seeks to do here, undermines the fundamental conception of the American public university as a true "marketplace of ideas." Keyishian v. Bd. of Regents of the Univ. of N.Y., 385 U.S. 589, 603 (1967). We must also note that federal case law regarding freedom of expression simply does not support the transformation of public institutions of higher education into places where constitutional protections are the exception rather than the rule. Time and again, courts have determined that to be considered legal, time, place, and manner restrictions must be narrowly tailored to serve substantial governmental interests. The generalized concern for order that underlies the establishment of "free speech zone" policies is neither specific nor substantial enough to justify such restrictions.

Our second letter to President Fox, sent on November 28, 2007, made essentially the same points, urging UCSD to reconsider the ill-advised policy changes.

Thankfully, the university has done just that: the unconstitutional proposal has been scrapped. Better still, the next draft of proposed changes to UCSD's current policy—which earns a "red light" on FIRE's Spotlight—will be written by students, including graduate student Benjamin Balthaser, whom FIRE represented in a separate speech-related dispute with UCSD.

While problems and potential gray areas still remain with regard to UCSD's speech policies, we are encouraged by UCSD's willingness to admit error and reconsider its policy choices. We look forward to seeing what the students come up with, and of course we'll keep you posted.