While Dec. 1 marked the final day to publicly comment on a
revised version of the campus’ freedom of expression policy, recent allegations
of unconstitutionality suggest that the discussion is far from over.
The new draft of section nine of the university properties
use policy, which defines permitted speech, advocacy and distribution of
literature, was released during finals week of last Spring Quarter. Students
received an e-mail titled “Review of PPM 510-1 Section IX” on June 8 that
provided a Web site link to the new policy and asked for input by June 25.
Some students, such as Sixth College sophomore Juan Vasquez,
protested the limited comment period and argued that the two-week time slot —
which spanned finals week and the start of summer — was not long enough and
undermined the importance of freedom of speech.
The comment period was then extended to Dec. 1 after Vasquez
and others mobilized a group of over 80 concerned students that met with former
Vice Chancellor of Student Affairs Joseph W. Watson on June 11 to question the
proposed changes.
The university intended to release the document sooner and
allot more commenting time, according to UCSD Associate Controller and
committee chair Sally Brainerd, who said that the current draft was finalized
in February but released in June because of bureaucratic delays.
The 26-year-old policy has been under review since 2001 in
efforts to bring its language in line with changes in the law regarding freedom
of speech, Brainerd said. However, many aspects of the new policy may actually
threaten the First Amendment rights of students and staff, according to an
eight-page letter submitted on Nov. 19 by the San Diego chapter of the American
Civil Liberties Union.
SDACLU Legal Director David Blair-Loy cited case law,
contending that 10 different sections of the revision are unconstitutional.
“If their policy as it was written went before a court of
law, it would fail,” Blair-Loy said in the letter.
The first problem with the document lies under the heading
“Reservations,” which states that any gathering that can “reasonably be
expected to attract a crowd of 10 or more people” must be reserved one business
day in advance, SDACLU Field and Policy Director Andrea Guerrero said.
Guerrero said that this condition, referred to as a “prior
restraint,” does not allow for spontaneous expression and is therefore
problematic under the Supreme Court’s definition of the First Amendment.
A large parade that blocks traffic and impedes public access
may warrant a permit, she said, but a crowd of 10 people is not a burden to
others in a public space.
“[The policy] impermissibly restricts speech before it even
happens by forcing people to reserve the right to speak,” Guerrero said.
This limitation has also concerned university officials,
Brainerd said.
“Ten is a very low number and such an approach may not be
adopted at all,” she said in October. “We will work with the committee to
establish a more reasonable protocol.”
In addition, the same provision imposes the unconstitutional
responsibility for one person to take financial responsibility for others,
while granting the university “unbridled discretion” to deny permits without
including a deadline on their issuance, Guerrero said.
Guerrero added that one of the policy’s biggest problems is
its vagueness, such as the stipulation that prohibits speakers from making
anyone part of an “involuntary audience.”
Brainerd said this condition is intended to protect
listeners from becoming audience members without their consent.
“While speakers have a right to speak, listeners have a
right not to listen,” she said. “Speakers may not take steps that make it
impossible for listeners not to listen.”
While the regulation’s purpose may be legitimate, the
wording as it stands is open to content control, which Guerrero called a “big
no-no” in regard to the First Amendment. The policy also attempts to restrict
content by regulating the “political activity” of faculty and staff without
sufficient justification or clearly defined terms, she said.
“It is especially troubling for a university, which carries
the extra burden of encouraging the free exchange of ideas, to attempt to
restrict the speech of the students, faculty and administrators on campus,”
Guerrero said.
Brainerd said the current document is just a draft, however,
and changes will be considered once the revision committee meets in December or
January.
According to the latest figures, released on Nov. 27, an
estimated 170 people submitted comments in response to the new policy, 93 of
whom were against having any policy at all.
Brainerd said that the policy revision took a considerable
amount of time to prepare and that the university is in no rush to enact a
revised document.
The university has not yet released a list of committee
members because several positions have not been confirmed, she said, but the
group will consist of 16 members chosen by the A.S. Council, Graduate Student
Association, Academic Senate, Vice Chancellor of Business Affairs Steven W.
Relyea and Watson.
“The committee’s goal is to use the input it receives from
the entire campus community to formulate a policy that upholds the rights of
freedom of speech while at the same time preserving and promoting an
environment conducive to study, research and learning,” Brainerd said.
