A version of this article appeared on the Stranger Slog.
It makes sense that the Bill of Rights begins with the First Amendment’s guarantee of freedom of speech and assembly. The ability to freely express thoughts and ideas is essential to maintaining a vibrant democracy. Our Washington State Constitution recognizes this, too, and likewise provides strong protection for freedom of expression.
So it was no big surprise that Seattle Community College officials this week announced they were withdrawing proposals for controversial regulations that restrict freedom of speech on campus. The ideas for changes came in the wake of Occupy Seattle activities at Seattle Central’s campus. Whatever the intention, the proposals didn’t live up to constitutional standards in several ways. The ACLU-WA testified about the proposals’ constitutional infirmities amid a parade of faculty members and students who roasted them at a public hearing on April 5.
The Seattle Community Colleges Board of Trustees is considering greatly scaled-back regulations—having removed the proposals that the ACLU dinged as violating free-speech rights—at a 4:00 p.m. meeting today. We hope these controversial proposals are indeed dead.
To get a sense of why college authorities beat a hasty and welcome retreat—and as a lesson for the future in the pitfalls of trying to limit protest on a public college campus—here’s what the ACLU thought about the proposals:
Prior Restraint: The proposal required all “noncollege groups” to provide notice to the campus public safety department 24 hours prior to engaging in lawful protest activities. This is a classic example of what’s known as a “prior restraint” – that is, when you have to notify a government entity before you can engage in free speech activities. The courts have long held that such a restriction violates the state constitution – i.e., legally it’s a no-no. The requirement is even less tenable in an era when Facebook, Twitter, and texting allow people to mobilize protests very rapidly in response to the latest developments on an issue.
Time, Place, and Manner Restrictions: Government entities, like a community college system, can impose time, place, and manner restrictions on free speech, but in limited circumstances – among other things, the restrictions must be “narrowly tailored” to serve a compelling government interest. One proposal demanded that no individual carry more than one sign, no matter the size. This is what pundits like to call a “head scratcher” – something that so defies logical explanation as to reduce one to scratching one’s head in bewilderment. Judges would likely be very hard-pressed to understand what compelling government interest it serves.
Another proposal limited the amount of time an individual may engage in free speech activity on campus to eight hours for students, five hours for non-students. Arbitrarily limiting the time of free speech is not a narrowly tailored restriction. Still another proposed restriction limited non-student access to campus for free speech activities to a relatively small area of campus. Though such “speech zones” are popular with authorities, ease of administration is not a sufficient reason to justify limiting where people can express themselves.
Banning Material with Protected Speech: The administration proposed to ban the distribution of all material that advocates unlawful conduct. But the First Amendment bars the government from forbidding such advocacy unless it is meant to incite imminent lawless action and is likely to produce such action. A restriction like this would, for example, prevent an activist like Martin Luther King, Jr. from distributing flyers urging a peaceful sit-in at the college.
Overly Vague Regulation. A proposed rule allowed administrators to eject from campus a person who engages in a free speech activity that “disrupts the orderly functioning of the college.” Fair enough, one might think. But the regulation did not define what “orderly functioning” means, nor does it set any criteria for what activity rises to the level of a “disruption.” So in practice, it granted broad discretion to administrators to make the call. Courts typically strike down such rules for being impermissibly vague.