A Modesto Proposal

The set up was damn near perfect.  A public junior college, rules that would assure a conflict, a camera and a document no less dreaded than the United States Constitution. What could go wrong?

Via FIRE, the Foundation for Individual Rights in Education:

Modesto Junior College in California told a student that he could not pass out copies of the United States Constitution outside the student center on September 17, 2013—Constitution Day. Captured on video, college police and administrators demanded that Robert Van Tuinen stop passing out Constitution pamphlets and told him that he would only be allowed to pass them out in the college’s tiny free speech zone, and only after scheduling it several days or weeks ahead of time.

That it was Constitution Day and he was passing out…wait for it…the Constitution is dramatic and pointed, but legally irrelevant. The content, with certain exceptions, has no bearing on the lawfulness of free speech. It wouldn’t have mattered if he was passing out Atlas Shrugged, though the choice of the Constitution was no doubt designed to remove the natural taint that free speech opportunists feel when they favor speech they like over speech they don’t.

But as that William Wallace of Free Speech, Ken at Popehat, made clear as he charged the story on his pony with claymore in hand,

As in most such cases, the school’s invocation of “time, place, and manner” language is facile and misleading.  The First Amendment does permit reasonable time, place, and manner restrictions.  But that doctrine does not permit broad restrictions on non-disruptive activities like leafleting, particularly when they are on traditional public fora like sidewalks, and particularly when it results in limiting speech to a few people per month in a tiny concrete speech ghetto.

While content-based restrictions are subject to strict scrutiny, time, place and manner restrictions are subject only to intermediate scrutiny:

In general, the government must show that the law serves an important objective (not involving the suppression of speech), that the law is narrowly tailored, and that there remain ample alternative means of communication.

When Robert Van Tuinen tested the rules, he was stopped by a campus security officer and sent to an administrator, where things went exactly as expected.

Upon arriving at that office, Van Tuinen talks with administrator Christine Serrano, who tells him that because of “a time, place, and manner,” he can only pass out literature inside the “free speech area,” which she informs him is “in front of the student center, in that little cement area.” She asks him to fill out an application and asks to photocopy his student ID. Hauling out a binder, Serrano says that she has “two people on campus right now, so you’d have to wait until either the 20th, 27th, or you can go into October.” Van Tuinen protests that he wants to pass out the Constitution on Constitution Day, at which point Serrano dismissively tells him “you really don’t need to keep going on.”

Not quite a robust protection of the First Amendment:

Such is the bureaucratic arrogance of college administrators:  they will openly use phrases like “that little cement area,” not particularly caring that it illuminates how they view speech and how they wish to marginalize it.

But neither the security officer, nor bureaucrat Serrano, make up the rules. They were mere cogs in the wheel, doing the job for which they were paid, doing as they were told to do by people who wielded greater authority than they do.  Sure, they could have recognized, on their own and despite the orders from on high, that they were engaged in the suppression of free speech, the violation of constitutional rights, the sort of conduct that should be most abhorred on a college campus, where freedom of thought, expression, ideas and speech should be given its greatest breadth and appreciation.

FIRE shot off a letter to Jill Stearns, President of Modesto Junior College.  Whether she made the rules, or they were formulated by a committee of lesser people charged with maintaining order and decorum on campus to protect students from the assault of unwanted speech, is unknown, but Stearns would certainly be a better person to hold accountable for the college’s interference with Van Tuinen’s right to pass out Mein Kampf the Constitution.

It’s not mere confusion as to what the law protects and what the law permits in limitation of that protection.  There are strong voices demanding their rights in contrast to the rights protected by the Constitution.  It puts colleges in awkward positions, and lower level functionaries like bureaucrat Serrano in impossible positions.

The fact that there is such a thing as free speech zones reflects the fundamental conflict on campus, the elevation of the “right” not to be bothered by other people exercising their right to free speech.  But Modesto Junior College didn’t invent this ill-advised restriction, and bureaucrat Serrano was nothing more than a paper-pusher, filling out forms to the extent she grasped her role in this debacle.

But this was shooting fish in a barrel. Cleaning up the mess at Modesto Junior College will not make a dent in a problem that is not only systemic, but has widespread support among colleges and their students. The problem is huge. This example is puny. It makes its point well, but the pervasiveness of speech codes, free speech zones and whatever other restrictions on speech “educators” come up with won’t be stopped in Modesto.  Maybe Stanford?

12 comments on “A Modesto Proposal

  1. Marilou Auer

    What troubles me the most, here, is that there’s any such thing as a “free speech zone” on the Modesto campus. Free speech is not a concept that should be cordoned off in a “little cement area.”

    Create a “zone” for a behavior you wish to control or monitor, not for free speech.

    1. SHG Post author

      The very notion of a cordoned-off free speech zone is anathema to the Constitution, but that’s the accommodation made for the “rights of those who don’t want to be annoyed by those who exercise constitutional rights.”

    2. Ultraviolet admin

      California Education Code § 76120 makes this even more screwed up, since state law explicitly defines the entire campus as a public forum for students to pass out reading materials.

      1. SHG Post author

        This instance happened in California, but it’s not a California problem, meaning the California code is of little help or interest to anyone outside of California.

  2. Wheeze The People™

    I see what you did there!! You didn’t tolerate your own inappropriate reference, as you struck it from the record, leaving just enough for proper affect. I’m certainly glad it wasn’t my struggle. (SHG, Simple Justice BLAWG Rules (2013), “References to Nazis/Hitler will not be tolerated.” ) . . .

  3. John Burgess

    Perhaps colleges and universities might do away with the position of Third Associate Dean for Academic Affairs and replace it with someone versed in the US Constitution? I realize this does nothing to dial down administrative bloat, but it might have a beneficial effect.

    Yes, yes… I realize that ‘beneficial effect’ may not be what campus administrators want. But anything that slows progress toward Campus Police SWAT teams should be supported.

  4. BL1Y

    You are in serious need of some privilege checking, SHG. Everyone knows that “free speech” is just a euphemism for hate speech, bigotry, and harassment. Why are you trying to destroy this safe space? Don’t you know that colleges are students’ homes? Would you let me barge into your home any time I wanted and hand out copies of the Constitution?

    And if so, do you have beer and cheetos?

  5. Fubar

    SHG wrote:

    But as that William Wallace of Free Speech, Ken at Popehat, made clear as he charged the story on his pony

    You are libel.

    And I shall now duck and run.

  6. Bob Mc

    Silly me, I was under the (mistaken, apparently)) impression that the entire United States was a “free speech zone”.

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