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Speaking Out for Speech

By Kari Santos | Dec. 2, 2014


Law Office Management

Dec. 2, 2014

Speaking Out for Speech

Fifty years after the Free Speech Movement began in Berkeley, constraints on students' political activity remain

The battle for students' political rights has moved from campus to court. Fifty years after students at UC Berkeley started the movement that redefined those rights nationwide, colleges and universities in California and other states face claims that their use of small "free-speech zones," trademark law, and harassment policies infringe on students' First Amendment rights.

At Citrus College in Glendora, student Vincenzo Sinapi-Riddle claims he was barred from circulating a petition - against NSA spying - outside the campus's designated free-speech area. Just 1.37 percent of the campus fell inside that zone, according to Sinapi-Riddle's federal complaint, filed in July. Settlement talks were under way at press time, but the community college's lawyer maintains the policy is constitutional: "We think that the procedure establishing the free-speech area is perfectly lawful," says Warren S. Kinsler, a senior partner in Cerritos with Atkinson, Andelson, Loya, Ruud & Romo. "It doesn't interfere with any students' or visitors' rights on campus."

Settling a similar case, Modesto Junior College promised to maintain new policies on speech-related activities. The school paid student Robert Van Tuinen $50,000, including attorneys fees, and now permits political speech in open areas across campus. The case arose after Van Tuinen was prevented from handing out copies of the U.S. Constitution on Constitution Day in 2013.

David Urban, of counsel with Liebert Cassidy Whitmore in Los Angeles, which represented the school, declined to comment on the specifics of the settlement. He did say that after being sued, Modesto Junior College wanted to establish policies that "greatly fostered free speech ... even more so than at most other colleges." California is the only state that guarantees essentially the same free-speech rights to students at both public and nonreligious private postsecondary schools.

An organization called the Foundation for Individual Rights in Education (FIRE) was behind both lawsuits. The Philadelphia group works nationwide against what it considers unconstitutional campus speech policies. A team at Davis Wright Tremaine provides representation pro bono.

It was in December 1964 that UC Berkeley undergraduate Mario Savio delivered his most famous exhortation to striking compatriots: "There's a time when the operation of the machine becomes so odious - makes you so sick at heart - that ... you've got to put your bodies upon the gears, and upon the wheels, upon the levers, upon all the apparatus, and you've got to make it stop!" Students had been protesting policies that forbade using school property for off-campus political causes. After Savio spoke, they occupied the main campus administration building. The protests triggered a political reaction that helped elect Ronald Reagan as governor two years later, but they also reshaped student political rights and protests.

Attorney Paul Von Blum, a lecturer in African-American studies at UCLA, participated in the Free Speech Movement as a student at UC Berkeley's law school. He summarizes the current limits to on-campus speech: "You can't come into my classroom when I'm teaching. You can't have a demonstration in the neonatal intensive care unit of the hospital, but you can do it pretty much everywhere else on campus."

Even without large demonstrations, today's disputes over on-campus speech concern those same rights. In a survey of 437 schools, FIRE found 55 percent had policies that "seriously infringe upon students' speech rights."

Catherine Sevcenko, an attorney and FIRE's associate director of litigation, says FIRE often questions administrators directly about such policies. It also publicizes instances in which schools won't make changes, she says, and litigation adds "another string to our bow."

FIRE has supported a case against the University of Hawaii at Hilo's limiting of political activities to a small area; one challenging Iowa State University's use of trademark law to prevent a group from printing pro-pot T-shirts; one at Ohio University over T-shirts that proclaimed "We get you off for free" to publicize a group offering help in disciplinary proceedings; and a case against Western Michigan University over a security fee required for hosting rappers and other speakers with "controversial messages."

Attorney Urban urges schools to review their policies to ensure they aren't so overbroad as to limit expressions of opinion and other protected speech.

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Kari Santos

Daily Journal Staff Writer

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