The University of California System is considering a new speech code in the wake of a few unfortunate speech incidents on its campuses. AP reports that UC System President Mark Yudof is considering a new system-wide bias incidents or “hate speech” policy to remedy recent incidents involving swastika graffiti and a noose found hanging on a library book shelf. In the former incident, UC Davis found several swastikas painted on university property and one on a student’s dorm room door. In the latter incident, UCSD students used Facebook and other online media to promote an off-campus party that played off of negative racial stereotypes. This caused the university to freeze the funding of 33 student media outlets. Some California legislators called for punishment of the students. The incident was followed by a student hanging a noose in the library, which later turned out to be a hoax. The UC Davis incidents are obviously illegal (defacing government property) and may be considered true threats of violence, which are not protected forms of speech. FIRE has done a good job detailing the proper reactions to the UCSD incidents.
The UC’s actions are surprising, as Yudof and the UC General Counsel have done well recently by amending the system’s sexual harassment policy to comply with the First Amendment. But it seems that Yudof may be receiving bad advice this time around. The proposed speech code, which has surfaced from the UC Students Association, will prohibit “hanging a noose, burning a cross, or placing a symbol, such as a swastika, without authorization, on university property or at official university functions.” The restrictions seem benign at first glance. No one should be allowed to encourage criminal activity on campus or incite violence, and for this reason much of the restriction might pass constitutional review. But the restriction on “placing a symbol,” runs afoul of the First Amendment. Vague? Overbroad? Prior restraint? You bet! This gives an administrator unbridled discretion to determine which “symbols” are allowed on university property and which are not, with no criteria to guide their decisions. This can result in an administrator finding that certain “symbols” are too “offensive” to be allowed (for example, a display of crosses during a Cemetery of the Innocents event). This has the potential to stifle protected speech.
President Yudof and the UC Regents would be wise to take heed of what happened to their university colleagues in College Republicans at San Francisco State University v. Reed, where a federal district court in San Francisco struck down a California State University system’s civility code as unconstitutional. The court issued the decision after San Francisco State University investigated a College Republicans anti-terrorism rally that involved stepping on hand-made flags of Hezbollah and Hamas. As the court reminded the CSU:
controversial expression . . . is the First Amendment’s highest duty to protect. By political definition, popular views need no protection. It is unpopular notions that are in the greatest peril—and it was primarily to protect their expression that the First Amendment was adopted. The Framers of our Constitution believed that a democracy could remain healthy over time only if its citizens felt free both to invent new ideas and to vent thoughts and feelings that were thoroughly out of fashion. Fashion, it was understood, is an agent of repression—and repression is an agent democracy's death.
If the UC wants to prohibit defacing university property, it can find better ways to do so. If it wants to protect student safety, it may do so by prohibiting speech that incites violence. But if it wants to promote racial tolerance and a marketplace of ideas, it will do better by allowing speech to occur, not banning it based on a few isolated incidents (one of which was a hoax). I hope the UC takes the high road by taking another look at this proposed policy and bringing it into compliance with the First Amendment.
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