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Davis, California

Monday, April 22, 2024

Watts Legal

I hear UC Davis wants to implement a new free speech policy, supposedly to make sure another pepper spray incident doesn’t happen. But I read in the Davis Enterprise that there was some controversy at the public forum where the draft policy was discussed. What’s the problem?

Bryan B. Davis, CA

First of all, let’s clear up a misconception. This proposed “freedom of expression” policy does not protect free speech. It limits speech.

The First Amendment to the Constitution protects freedom of speech from government overreach. If we erased every law passed by our government other than the Constitution, all speech would be permitted. That’s because until a government acts to limit speech, there aren’t any bans on speech at all. Freedom is the default.

We don’t live in this default world, though. Governments have indeed limited speech, usually with justification. Most people would agree that the phrase “give me all your money or I’ll kill you” should not be uttered with sincerity, for example. Statements like that, when used with intent to deprive someone of their money, are banned by state and federal criminal laws. In the absence of a university policy, your speech is thus limited only by existing law — county ordinances, state law and federal statutes.

The only way the university’s speech policy could expand your rights to free speech would be to override these existing laws limiting speech. But a university can’t override federal law. So since the university’s policy cannot override real world laws, there’s nothing that the university could do to “expand” or “protect” free speech. It can only restrict it. All attempts at implementing speech policies will necessarily result in less speech, not more. (The primary exception would be if the university released all its valuable research into the public domain, free of copyright or patent restrictions).

Like most university speech policies, this one is particularly offensive to the First Amendment.

Here’s the first problem. This comes straight from the draft policy:

“All members of the University community should recognize that freedom of expression includes a responsibility to respect the dignity of others, to acknowledge the right of others to express differing opinions, and to maintain civility at all times.”

Have you seen Congress recently? Or talk radio? Freedom of expression does NOT include a “responsibility to maintain civility,” whatever that means. A “civility” requirement is unconstitutional on two grounds: it’s both void for vagueness, and because it’s overbroad. It’s vague because “civility” varies depending on the listener. No one can determine whether the administrator enforcing this policy watches R-rated movies or instead cringes at every “fuck,” “shit” or “damn” uttered in public.

It’s unconstitutionally overbroad because although this ban might prohibit genuinely unprotected speech (“your money or your life”), it would also bar speech that is definitely protected. The Supreme Court already ruled that statements like “fuck the draft” are protected speech in most contexts.

Next, the policy tries to “provide reasonable protection” for “involuntary audiences.” At the public forum, a student asked what this meant. Provost Hexter responded that it was supposed to help staff members who aren’t free to leave their jobs, who, in the past, have said they felt “threatened” by student protesters. There is no absolute right to be free from hearing offensive speech when you’re in public. If the protesters genuinely threaten the staff, then the staff should call the police — like I said, true threats are already banned by state law. But an employee working at the MU does not have the right to censor people on the Quad without a good reason. “Involuntarily” encountering unpopular beliefs is one of the risks we run living in a free society.

The policy also states that “expression guaranteed by the federal and state constitution does not protect speech or expressive conduct that violates federal or state anti-discrimination and other laws.” Actually, it does. The Constitution does protect speech that might violate laws; that’s the whole point of the Constitution. Unlike the university, the constitution can and does override federal and state law. If the university interprets an anti-discrimination law as banning speech that offends a certain ethnic group, for example, that interpretation of the anti-discrimination law would be unconstitutional.

And that brings me to my final point. The Davis Enterprise quotes Provost Hexter: “There’s no desire to control any speech based on its content, apart from hate speech. None whatsoever.”

Hate speech is protected speech. I know that makes people uncomfortable, but that’s what the Supreme Court says. Most famously, the Court held in National Socialist Party of America v. Village of Skokie (1977) that the Ku Klux Klan has the right to hold anti-Semitic rallies in public areas, even if those rallies are located in towns with a large population of Holocaust survivors. You can’t get much more hateful than that. If the university intends to “control” hate speech (again, a vague term), it’s going to find itself on the wrong end of a federal lawsuit in a hurry.

Of course, I’m assuming that the university actually intends to enforce this policy and punish students for disobeying it. If this is simply another version of the UC Davis Principles of Community (which are an unenforceable mission statement), then there’s no problem. Administrators have free speech rights, too, and they’re perfectly within their rights to write stories about a fictional world in which the First Amendment does not exist.


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