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Davis, California

Wednesday, September 22, 2021

Watts Legal?

Ever hear of the Compton Cookout?

It was a “theme” party held at UC San Diego a couple years ago. The sponsors served watermelon and collard greens to people encouraged to dress up “Compton-style.” The university and greater San Diego community got upset — understandably so.

But the community couldn’t stop it. No one could. And though its party planners limited their cookout to an off-campus apartment complex, it’d still be protected speech even if they had held it at the university — and even if they used student organization funds.

Same thing at UC Davis.

Until last year, UC Davis had a policy that ordered registered student organizations not to “present their activities in a manner which tends to promote degrading or demeaning social stereotypes based on race, ethnicity, national origin, gender, sexual orientation, religion or disability.”

If they did?

“To do so is to put at risk any and/or all of the privileges of the sponsoring student organization(s). Indeed, through such action, a registered student organization may forfeit completely its registration with the University of California, Davis.”

A ban on “demeaning” social stereotypes at a public university is an unconstitutional restriction on speech. The First Amendment prohibits most content-based or viewpoint-based bans on speech. Racist speech is allowed at a university. Offensive speech is allowed. Even profanities, most speech discussing sex, or speech that attacks a religious group is allowed in most circumstances.

As the Supreme Court once said, one man’s vulgarity is another man’s lyric. To put certain speech off-limits is to put certain ideas off-limits, and the free flow of ideas — even bad ideas — is the foundation of democracy.

In January 2012, the university changed its unconstitutional policy after a certain attorney brought it to their attention. Clubs are free to host controversial events, though they’re “encouraged” to consider the Principles of Community when deciding what type of cookout to have.

But this wasn’t the only unconstitutional UC Davis policy.

Listen up, ASUCD candidates: This one concerns you.

The ASUCD election bylaws require candidates to follow UC Davis posting policies, some of which violate the First Amendment. Like other UC Davis units, the ASUCD is constrained by the Constitution. That’s why, for example, ASUCD maintains only “voluntary” spending limits for election campaigns. Mandatory spending limits are unconstitutional.

A candidate disqualified for violating these unconstitutional policies would have a decent argument that their disqualification must be overturned.

Here are three examples:

1. “All posted materials must clearly indicate the name of the sponsoring department, organization, or person.”

Anonymous speech has been protected since the days of the Federalist Papers. Just imagine Occupy’s posters: If there’s no official organization, how can you list the “sponsoring organization”? Or what if a Memorial Union employee wants to post a whistleblower flyer about food contamination that could get her fired?

Because these policies are facially unconstitutional, they would be invalid when applied even to circumstances in which knowing the identity of the speaker would be useful, such as anonymous libel.

2. “Organizations or persons posting or exhibiting materials in a language other than English must file a translated copy of the materials with Center for Student Involvement.”

Other than the borderline racism (why shouldn’t English documents be translated?), this rule is an unconstitutional content-based restriction on speech. Presumably, the university wants a translation to determine what it says. Well, the only reason the university would want to know what it says is if they plan on taking some action against the speaker based on what it says.

And the university can’t do that. They can’t ban speech on the basis of the content of the document.

By the way, this policy doesn’t say what language the “translated copy” needs to be in. So if you post something in Vietnamese, you could file a translated copy in Esperanto and the university would apparently be cool with that.

3. “During Meetings: Materials may be distributed during meetings only by University individuals and groups and only when the department head or organization has approved such distribution.”

The university can’t require student clubs to get permission before distributing materials at meetings, and it can’t restrict a group’s right to obtain materials from “non-University individuals.” Blatant violation of the First Amendment.

These problems aren’t confined to the posting policies. The election bylaws themselves are unconstitutional:

“No ASUCD Unit may make any public statements regarding any ASUCD Campaign Executive or ASUCD Elections campaign unless written approval is given in advanced by the ASUCD Elections Committee.”

This is an unconstitutional prior restraint on speech. It’s also irredeemably overbroad, since it encompasses a lot of protected speech. A ban on “any” public statements “regarding” the elections would ban someone telling the police that a slate of candidates was breaking into a computer lab.

These aren’t even close to all of the unconstitutional university rules. If I had a column of infinite length, I could do this all day.

Daniel is a Sacramento attorney, former Davis City Council candidate and graduate of the UC Davis School of Law. He’ll answer questions sent to him at governorwatts@gmail.com or tweeted to @governorwatts.


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