Southwestern College: The Ongoing Free Speech Saga

In an ongoing saga spanning nearly a year, the ACLU of San Diego & Imperial Counties today sent a third letter to the attorneys working with Southwestern College to address serious constitutional flaws with the school’s so-called “Freedom of Expression” policy, expressing appreciation for some progress, but stating continuing, serious concerns with the revised proposal.

“I am not sure how we can more clearly state the constitutional flaws in Southwestern’s speech policy, or better present acceptable reasonable fixes than we have over the last eleven months,” said David Blair-Loy, legal director of the San Diego ACLU. “We have pointed out, line by line, where the First Amendment problems are, and the drafts keep coming back to us with some of the overarching issues untouched.”

The revisions to Policy No. 3900 and Procedure No. 3900 (both attached below) still have serious First Amendment problems that the ACLU previously has raised:

  • In an overbroad provision, Southwestern College (SWC) proposes that “Literature distributed that contains the name and/or reference of affiliation with the District must include the statement that it is not official District literature and does not necessarily represent the view or official position of the District.” SWC may not compel the content of speech to be altered for speech that no reasonable person could believe to be remotely affiliated with the District, though it might be acceptable to require a disclaimer in publications funded by the District.
  • A requirement that all “parades, marches, or rallies, including silent protests, must be registered…at least five (5) working days in advance” is too broad, since it applies to groups of any size, is not limited to serious risks of traffic impairment or safety, does not include an exception for spontaneous expression, and the deadline requirement is unreasonably long.
  • The draft’s expectation that speakers should be responsible for removing litter and other debris illegally holds distributors of literature responsible for the actions of others—a theory long ago dismissed by the U.S. Supreme Court, which rejected the prevention of littering as a justification for abridging speech.

“As I stated in my letter, I appreciate the college’s efforts to move forward in protecting freedom of speech and greatly prefer that the matter be settled without litigation,” said Blair-Loy. “But I also had to alert Southwestern that if these continuing issues are not resolved and the free speech problems cured, the ACLU will pursue whatever litigation is necessary to protect First Amendment rights at Southwestern. Free speech is a foundational, non-negotiable American right.”

Since November 2009, the San Diego ACLU has been working with the Foundation for Individual Rights in Education to convince Southwestern College to fix constitutional problems with its speech policy. When the ACLU first became involved in the issue, SWC’s official policy declared that most of the campus was not a public form, and that assembly and expression were to be confined to a small “free speech patio.” The ACLU appreciates the substantial steps forward the college has taken, but cannot leave unaddressed the remaining constitutional impediments to free expression at Southwestern College.