UCSD Proposed Speech Policy Still Needs Work

Almost exactly two years later to the day, the University of California San Diego released a new proposed campus speech policy, seeking comment before it is finalized, that attempts to fix a number of the constitutional errors brought to its attention in November 2007 by the ACLU in a letter that said the proposed policy “would significantly threaten freedom of speech, particularly…political speech at the core of the First Amendment.”

Among the constitutional issues raised by the ACLU of San Diego & Imperial Counties in 2007 were requiring speakers to be responsible for the actions of others; requiring advance procurement of a permit even for very small events; no exceptions for spontaneous expression; improper abridgement of speech based on psat conduct; banning of literature on parked cars; and a number of other provisions.

Many of those have been addressed in this latest version, titled “Policy on Speech, Advocacy and Distribution of Literature on University Grounds.” The San Diego ACLU appreciates the policy’s new provision, “Expressive Activity may occur on all University Grounds.” However, the policy still raises certain free speech problems that need to be corrected before the policy is finalized.

Remaining issues to UCSD’s free speech policy include:

Potential content-based restrictions on non-commerical literature
The proposed policy suggests that UCSD may restrict the posting of non-commercial literature “based on content” if its “distribution violates state or federal law or university policy. This provision raises several problems: 1) it potentially subordinates federal constitutional rights to state law, in violation of the Supremacy Clause of the US Constitution; 2) both state and federal constitutions prohibit nearly all content-based restrictions on private, non-commercial speech; 3) the Education Code prohibits the University from making rules that subject a student to disciplinary sanction solely on the basis of conduct that is speech that when engaged in outside campus is protected by the First Amendment. The ACLU believes that UCSD has no legitimate or compelling interest that would justify content-based restrictions on private, non-commercial speech.

Prohibition of placing commercial literature on vehicles
One provision prohibits the placement of non-commerical literature on vehicles, and is likely unconstitutional. The Ninth Circuit recently issued a preliminary injunction against a similar provision in Klein v. City of San Clemente.

Posting material in common areas of student residences
One provision says that written materials may be posted in common areas of student residences unless “any resident of an adjoining room with access to the common area objects.” It is unconstitutional to allow one student to exercise veto power over the speech of another. The government may not censor speech merely because persons object to it: “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” (Texas v. Johnson) Though the university need not open the residence common areas to posting of materials, once it does, it can’t allow content or viewpoint-based discrimination in that forum.

The San Diego ACLU conveyed these sentiments to the university; the letter is attached below.

ACLU letter to UCSD on speech policy