JURIST Columnists Alan Brownstein and Vikram Amar, writing the third installment of the column authored by the faculty of the University of California, Davis School of Law, say that the recent protests at UC Davis provide a teachable moment on the limits of free speech in college protests…

An unflinching commitment to freedom of speech is the cornerstone of constitutional democracy in the US. Certainly we protect freedom of speech more vigorously than any other western democracy. We also have a venerable tradition of respecting academic freedom at colleges and universities.

These two principles, freedom of speech and academic freedom, overlap and are interconnected in some ways. But they also reflect distinct ideas. Freedom of speech is a broadly applicable right that protects speakers both on and off campus from unwarranted government interference with expression. Academic freedom, which may extend beyond what the Constitution protects, is grounded on the idea that, at least in the academy, free inquiry unburdened by the constraints of orthodoxy will lead to the development of new ideas and knowledge.

At base though, both freedom of speech and academic freedom rest on the bedrock belief that ideas and arguments ought to be evaluated on their substance. The essence of both kinds of freedom is the opportunity to persuade others of the merits of one’s argument, rather than the use of power to coerce others into acceding to the proponent’s point of view.

Sometimes the heat and passion of political protests on college campuses causes these basic principles to be overlooked or ignored. When that happens, it is important to remember what freedom of speech and academic freedom really mean and how easily both of these principles can be misused and misinterpreted.

Recently at the University of California, Davis, protestors repeatedly obstructed access to a branch of a bank located on-campus. The bank had leased space to serve the campus community, and the lease would have provided $2 million dollars or more to the university over a 10-year period. Ultimately, and ostensibly in response to the protestors’ conduct, the bank closed its campus branch office.

The university administration and campus police identified several students who participated in the obstructive protests to the County District Attorney for prosecution under state penal code sections making it a misdemeanor to willfully obstruct public walkways and places or to intentionally interfere with any lawful business. The bank provided evidence to the District Attorney’s office as well. On March 29, 11 students and one faculty member were ordered to appear for booking and arraignment on misdemeanor charges of obstruction and conspiracy to commit a misdemeanor.

We have no basis for evaluating the merits of the charges brought against any individual. We also recognize that prosecution is not always an appropriate or supportable response to protests that violate campus regulations or even penal laws governing on-campus conduct. The university has administrative disciplinary procedures available to it that may be enforced against obstructive behavior. In some cases, in-house discipline may be preferable to prosecution.

The point of this article is not to discuss and compare alternative remedial responses to unlawful conduct on-campus. It is to evaluate the claim that politically motivated obstruction should be immunized from sanction.

The Board of the Davis Faculty Association (DFA), an organization that is sometimes thought by the media to speak on behalf of the larger UC Davis faculty but whose membership in fact comprises a very small fraction of the professors here at the university, challenged the administration’s decision to seek prosecution of the identified students, not because the students were innocent of the charges against them or because campus disciplinary procedures would be a more appropriate response for certain kinds of violations of law on-campus, but because the obstruction of the bank was politically motivated and morally just from the DFA’s point of view. The DFA letter/petition to the campus administration said in relevant part:

The closure of the branch and cancellation of the contract were due to a blockade of the branch office carried out by student and faculty protesters from January through March. It is important to understand the political content of this blockade: the demonstrators continually stated their opposition to the substitution of private contracts for public funding of the UC system, and they continually pointed out conflicts of interest related to University contracts with corporations profiting from student loan interest as the UC administration continues to increase tuition, thus forcing many students to take out increased loans. … We reiterate our support for the principled and determined actions of UC students and faculty to defend the public character of the UC system against privatization, a goal with which the blockade of the US Bank branch was consistent.

Referring to possible punishment of the students as “retroactive legal action” (as if the failure to arrest someone prior to, during or immediately after his violation somehow precludes or renders illicit the subsequent filing of charges), the DFA goes on to express its “opposition to the UC Davis administration’s decision to have these cases forwarded to the DA by the police.” It then asks “that the administration recognize the political content of the US Bank blockade rather than treating it as a criminal matter.”

As mentioned earlier, the DFA Board does not speak for many people. But that even a few faculty members at one of the nation’s top universities would misunderstand the basics of freedom of speech and/or academic freedom is troubling, and suggests the need to use this episode as a “teachable moment.” For the reality is that the DFA’s position is unworkable under any reasonable interpretation of free speech doctrine or academic freedom principles.

To begin with, it bears noting that a blockade is not, of course, constitutionally protected speech. It is conduct that government has always had the legitimate authority to proscribe because the conduct so obviously obstructs the liberty and lawful pursuits of others. Government actions to prohibit blockades or obstruction have been held to be permissible under the First Amendment too many times to count. To cite just one example, a federal law, the Freedom of Access to Clinic Entrances Act (FACE), that prohibits anyone from physically obstructing any person from obtaining or providing reproductive health services, has been upheld repeatedly against constitutional challenge, and those cases raise harder questions than do generic obstruction laws (like the kind at issue at UC Davis) because FACE targets specific places where protestors with particular messages may be expected.

One critical reason why blockades can be prohibited is that they are not intended to and do not persuade anyone of the merits of the protestors’ position. They are employed to coerce third parties to change their behavior, not their minds. As such, they are actually antithetical to, rather than in furtherance of, the values on which freedom of speech and academic freedom are grounded — a commitment to the power of ideas rather than the use of force to change the way that people act.

The courts do recognize that sometimes government regulation of otherwise proscribable conduct can raise free speech concerns. This occurs when conduct is engaged in for expressive purposes, such as the burning of an American flag, and, crucially, the regulation of conduct is intended to suppress the message that the conduct is attempting to communicate. In those instances, government is punishing protestors not to protect the rights of third parties; it is regulating protestors’ expressive conduct to censor the protestors’ message. But the DFA’s complaint is not (nor could it be, based on the available evidence) that the campus administration and police seek to prosecute the bank blockaders but would take no enforcement action against other blockaders who engaged in obstruction for different, “approved,” purposes. In other words, the DFA does not rail against discriminatory enforcement. Instead, the DFA argues for discriminatory enforcement that provides the protestors special immunities. It demands that the campus and police treat the students involved in this blockade differently and more favorably relative to other students engaged in obstructive behavior, because of the expressive political purpose and message of the protestors at the bank.

Whether this suggestion by the DFA is viewed broadly or narrowly, it makes little sense. Let us look first at a broad understanding of DFA’s submission. If the DFA is using the term “political content” expansively, its argument would seem to reject the enforcement of all content-neutral time, place and manner rules. After all, all intentional disobedience of a rule can be understood to express the “political” message that the actor considers his or her conduct to be more important than any obligation to comply with the rule. Time, place and manner rules often serve important purposes, however, including the creation of an environment where those who shout the loudest are not the only people who get to speak and be heard. Unsurprisingly, the idea that no one need ever obey such rules simply because they have “political” reasons for refusing to do so finds no support in court decisions.

As the Supreme Court of California stated in an important free speech case, In Re Kay:

[T]he state retains a legitimate concern in ensuring that some individuals unruly assertion of their rights of free expression does not imperil other citizen’s rights of free association and discussion. … Freedom of everyone to talk at once can destroy the right of anyone effectively to talk at all. Free expression can expire as tragically in the tumult of license as in the silence of censorship.

Perhaps the DFA intends for the term “political content” to be interpreted more narrowly. Perhaps the DFA is suggesting that obstruction and other violations of law should be excused whenever individuals are engaged in blockades in the furtherance of politically salient beliefs, that is, beliefs concerning the big issues of the day. Obstruction and blockades about things like privatization, under this analysis, should be treated as permissible, if not protected, expressive activities.

If this is the argument, it too has costly consequences. Presumably, under this view, laws like FACE, which protect women attempting to enter medical clinics to obtain abortion services, could not be enforced against “political” anti-abortion activists blockading the entrances to clinics. And what happens when two groups of opposing protestors both want to blockade a facility (say the US Supreme Court the day of the health care oral arguments) at the same time, or two opposing political groups want to blockade each other’s protests? Without valid and enforceable time, place and manner rules applicable to political protestors, political protest could easily and literally devolve into melees.

Alternatively, maybe the suggestion is that laws prohibiting obstruction should be enforced off campus, but not on a college campus. But the problems do not disappear when protests occur at institutions of higher education. Under this analysis, campus administrators and police could not step in when on-campus student health facilities providing contraceptive services or advice about abortion are blockaded by politically motivated students who oppose the use of their student fee dollars to subsidize such services. And you still have the problem of managing the use of scarce property among competing protestors.

Logistical costs aside, if we tried to treat only salient political blockades as permitted expressive activity, a public university’s decision to prohibit all blockades except those maintained in order to express a limited class of political messages would itself violate the First Amendment. Government cannot discriminate on the basis of the subject of speech when it regulates expressive activity. In Carey v. Brown, for example, the US Supreme Court struck down a law prohibiting residential picketing that excluded labor picketing connected to a place of employment from its coverage. Similarly, if the university is going to treat obstruction as permitted speech, it cannot permit some blockades based on the university’s (contested) sense of the political salience of the protestors’ message.

It may be that the DFA’s position is narrower still. When it states that “[w]e reiterate our support for the principled and determined actions of UC students and faculty to defend the public character of the UC system against privatization, a goal with which the blockade of the US Bank branch was consistent,” the DFA appears to be arguing that participants in the blockade of the bank should not be punished because they are promoting a political cause which the DFA supports. Treating one political perspective more favorable than another, of course, constitutes viewpoint discrimination. A public university that engaged in viewpoint discrimination in regulating expressive conduct would blatantly violate the core principles on which the First Amendment is based. You don’t need to have attended law school to intuit that.

In adopting a political position and permitting that viewpoint to influence its regulation of campus protests, a public university would be undermining more than the First Amendment. It would also be destroying any justification it might offer for protecting the academic freedom of its faculty and departments. When a university engages in viewpoint discrimination, it demonstrates that it is no longer committed to open inquiry and the free exchange of ideas. The university instead morphs into a political institution committed to particular perspectives — so much so that it excuses violations of law when the violators happen to agree with the orthodoxy of its political positions. We value political institutions in society (such as political parties). But public universities serve different purposes and would lose much of their distinctive worth and claim to public support if they succumbed to partisan political canons of truth and legitimacy.

We understand that in any society, individuals may feel compelled to engage in civil disobedience. This respected form of protest, however, bears no resemblance to the blockade of a bank and the accompanying insistence that those who engaged in obstruction should be immunized from the consequences of their conduct. Civil disobedience involves the deliberate decision to disobey an unjust law. Students challenging segregated facilities in the Jim Crow south by sitting in at lunch counters and bus stations engaged in civil disobedience by refusing to submit to racist laws. Laws regulating the time, place and manner of activities on public property in race-neutral, content-neutral, viewpoint neutral ways that leave open ample other opportunities for expression (and the campus’ regulations have to and do satisfy these standards to be permissible) are not unjust laws.

More importantly, the communicative power of civil disobedience gains its force by protestors demonstrating the strength of their convictions by their willingness to be arrested and sanctioned for violating the law. Last time we checked, Dr. Martin Luther King, Jr., the person for whom our law school building is named, understood the difference between civil disobedience to unjust and unconstitutional laws and legitimate, constitutionally acceptable time, place and manner laws to which he had no basis for moral or legal objection.

Alan Brownstein is a Professor of Law and the Boochever and Bird Chair for the Study and Teaching of Freedom and Equality at the University of California, Davis School of Law. He is a nationally recognized constitutional law scholar, teaching Constitutional Law, Law and Religion and Torts. The primary focus of his scholarship relates to church-state issues and free exercise and establishment clause doctrine, but he has also written extensively on freedom of speech and privacy and autonomy rights.

Vikram Amar is the Associate Dean of Academic Affairs and a Professor of Law at the University of California, Davis School of Law. He writes, teaches and consults in the public law fields, especially constitutional law, civil procedure and remedies. He is a co-author of Constitutional Law: Cases and Materials, and he is a co-author on a number of volumes of the Wright & Miller Federal Practice and Procedure Treatise.

Suggested citation: Alan Brownstein & Vikram Amar, Defining the Boundaries of Free Speech in College Protests, JURIST – Forum, Apr. 9, 2012, http://jurist.org/forum/2012/04/brownstein-amar-protests.php.