In a thought-provoking article for Jurist published last week, University of California, Davis, School of Law Professors Alan Brownstein and Vikram Amar explore the intersection between freedom of speech and civil disobedience on campus. Prompted by a recent protest at UC Davis in which 11 students and one faculty member “repeatedly obstructed access to a branch of a bank located on-campus” and now face criminal charges, Brownstein and Amar analyze the First Amendment considerations relevant in formulating responses to such activity.
While taking no position on either the protest’s message or the charges the protestors now face, Brownstein and Amar criticize one faculty group’s reaction to the situation. “The Board of the Davis Faculty Association (DFA),” they write, “challenged the administration’s decision to seek prosecution of the identified students, not because the students were innocent of the charges against them or because campus disciplinary procedures would be a more appropriate response for certain kinds of violations of law on-campus, but because the obstruction of the bank was politically motivated and morally just from the DFA’s point of view.”
Brownstein and Amar use the DFA’s reaction to highlight two important points. First, engaging in certain forms of civil disobedience-like setting up a blockade, for instance-will not necessarily be protected by the First Amendment. They write:
To begin with, it bears noting that a blockade is not, of course, constitutionally protected speech. It is conduct that government has always had the legitimate authority to proscribe because the conduct so obviously obstructs the liberty and lawful pursuits of others. Government actions to prohibit blockades or obstruction have been held to be permissible under the First Amendment too many times to count. To cite just one example, a federal law, the Freedom of Access to Clinic Entrances Act (FACE), that prohibits anyone from physically obstructing any person from obtaining or providing reproductive health services, has been upheld repeatedly against constitutional challenge, and those cases raise harder questions than do generic obstruction laws (like the kind at issue at UC Davis) because FACE targets specific places where protestors with particular messages may be expected.
One critical reason why blockades can be prohibited is that they are not intended to and do not persuade anyone of the merits of the protestors’ position. They are employed to coerce third parties to change their behavior, not their minds. As such, they are actually antithetical to, rather than in furtherance of, the values on which freedom of speech and academic freedom are grounded – a commitment to the power of ideas rather than the use of force to change the way that people act.
Second, Brownstein and Amar criticize the DFA’s emphasis on the particular political message of the blockade and the accompanying suggestion that this political component should necessitate different treatment of the protest. (In a statement, the DFA asks “that the administration recognize the political content of the US Bank blockade rather than treating it as a criminal matter.”) They write:
Perhaps the DFA intends for the term “political content” to be interpreted more narrowly. Perhaps the DFA is suggesting that obstruction and other violations of law should be excused whenever individuals are engaged in blockades in the furtherance of politically salient beliefs, that is, beliefs concerning the big issues of the day. Obstruction and blockades about things like privatization, under this analysis, should be treated as permissible, if not protected, expressive activities.
If this is the argument, it too has costly consequences. Presumably, under this view, laws like FACE, which protect women attempting to enter medical clinics to obtain abortion services, could not be enforced against “political” anti-abortion activists blockading the entrances to clinics. And what happens when two groups of opposing protestors both want to blockade a facility (say the US Supreme Court the day of the health care oral arguments) at the same time, or two opposing political groups want to blockade each other’s protests? Without valid and enforceable time, place and manner rules applicable to political protestors, political protest could easily and literally devolve into melees.
As Brownstein and Amar point out, the fact that the protest takes place on campus and involves students and faculty does not change this basic calculus:
Alternatively, maybe the suggestion is that laws prohibiting obstruction should be enforced off campus, but not on a college campus. But the problems do not disappear when protests occur at institutions of higher education. Under this analysis, campus administrators and police could not step in when on-campus student health facilities providing contraceptive services or advice about abortion are blockaded by politically motivated students who oppose the use of their student fee dollars to subsidize such services. And you still have the problem of managing the use of scarce property among competing protestors.
Logistical costs aside, if we tried to treat only salient political blockades as permitted expressive activity, a public university’s decision to prohibit all blockades except those maintained in order to express a limited class of political messages would itself violate the First Amendment. Government cannot discriminate on the basis of the subject of speech when it regulates expressive activity. In Carey v. Brown, for example, the US Supreme Court struck down a law prohibiting residential picketing that excluded labor picketing connected to a place of employment from its coverage. Similarly, if the university is going to treat obstruction as permitted speech, it cannot permit some blockades based on the university’s (contested) sense of the political salience of the protestors’ message.
It may be that the DFA’s position is narrower still. When it states that “[w]e reiterate our support for the principled and determined actions of UC students and faculty to defend the public character of the UC system against privatization, a goal with which the blockade of the US Bank branch was consistent,” the DFA appears to be arguing that participants in the blockade of the bank should not be punished because they are promoting a political cause which the DFA supports. Treating one political perspective more favorable than another, of course, constitutes viewpoint discrimination. A public university that engaged in viewpoint discrimination in regulating expressive conduct would blatantly violate the core principles on which the First Amendment is based. You don’t need to have attended law school to intuit that.
Brownstein’s and Amar’s consideration of when campus protest becomes punishable is useful for both students and free speech advocates and is well worth your time.
William Creeley is FIRE’s Director of Legal and Public Advocacy.
Used with the permission of The Foundation for Individual Rights in Education.