This guest post is by Doug Honig, spokesman for the ACLU of Washington.
Itâs no accident that the Bill of Rights begins with the guarantee of freedom of speech and assembly. The First Amendment comes first because 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 Centralâs campus. Whatever the intention, the proposals didnât live up to constitutional standards in several ways. The ACLU-WA testified about the proposalsâ 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 will consider greatly scaled-back regulationsâhaving removed the proposals that the ACLU dinged as violating free-speech rightsâat 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 retreatâand as a lesson for the future in the pitfalls of trying to limit protest on a public college campusâhereâs what the ACLU thought about the proposals:
Prior Restraint: The proposal required all ânoncollege groupsâ to provide notice to the campus public safety department 24 hours prior to engaging in lawful protest activities. This is a classic example of whatâs known as a âprior restraintâ â 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 â i.e., legally itâs 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 â among other things, the restrictions must be ânarrowly tailoredâ 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 âhead scratcherâ â something that so defies logical explanation as to reduce one to scratching oneâs 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 âspeech zonesâ 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 âdisrupts the orderly functioning of the college.â Fair enough, one might think. But the regulation did not define what âorderly functioningâ means, nor does it set any criteria for what activity rises to the level of a âdisruption.â So in practice, it granted broad discretion to administrators to make the call. Courts typically strike down such rules for being impermissibly vague.