HomeMy WebLinkAboutItem 1 - Free Expression Workshop (hosted by Cal Poly)1/24/2017 1
Free Expression
and Campus Climate
Dr. Kathleen McMahon
AVP and Dean of Students
Dawn Theodora
Office of General Counsel
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Student Affairs Mission
Student Affairs promotes student success
throughout the Cal Poly experience by providing
Learn by Doing opportunities, delivering
innovative student -centered programs,
encouraging personal growth, and empowering
students within a safe, healthy, inclusive and
supportive environment.
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Goals
•Consider the role of free expression on campus
and in society
•Understand Cal Poly’s legal obligations
•Improve understanding of the campus response to
controversial events, protests, and protected
speech
•Explore how we can support students and the
campus community
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FREE EXPRESSION, SPONSORSHIP,
COMMERCIALISM, AND USE OF
BUILDINGS AND GROUNDS
Campus Administrative Policy 140
Speech is often provocative and challenging.It may strike at
prejudices and preconceptions and have profound unsettling
effects as it presses for acceptance of an idea.That is why
freedom of speech, though not an absolute, . . . is
nevertheless protected against censorship or punishment,
unless shown likely to produce clear and present danger of a
serious substantive evil that rises far above public
inconvenience, annoyance or unrest .
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Commitment to Freedom of Expression
CAP 141.2
Freedom of expression is a cornerstone of a democratic society
and is essential to the educational process.Universities have a
special obligation not only to tolerate but also to encourage and
support the free expression of ideas, values and opinions, even
where they may be unpopular or controversial.Cal Poly accepts
and embraces this obligation, recognizing that such expression may
take a variety of forms, such as speeches, signs, written materials,
public assemblies, parades, demonstrations and artistic
representation .
1/24/2017 Content can (almost) never be a deciding factor in permitting expression!6
“The University is not engaged in making ideas
safe for students. It is engaged in making
students safe for ideas. Thus it permits the freest
expression of views before students, trusting to
their good sense in passing judgment on these
views. Only in this way can it best serve
American democracy.”
-Clark Kerr's 1961 response to complaints about a
controversial speaker on campus
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Striking a Delicate Balance
•First Amendment of the U.S. Constitution
•What kind of speech is protected?
–All forms of expression
–Written/spoken words, and expressive conduct
•Art , clothing, gestures, flag burning, free speech
walls, etc .
•Opinion, editorial, political
•Protests
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What is NOT protected?
•Promoting or inciting actual violence or harm
•Fighting words
•True threats
•Defamation (e.g., libel and slander)
•Severe [illegal ] harassment
•False advertising
•Use of public resources for partisan politics
•Examples
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I NCITEMENT OF V IOLENCE OR H ARM
•Speech that advocates
for the use of force is
not protected when it is
directed to inciting or
producing imminent
lawless action and is
likely to incite or
produce such action.
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Example
In l969, the Supreme Court
struck down the conviction
of KKK members for
advocating violence as a
means of accomplishing
political reform because
their statements did not
express an immediate or
imminent intent to do
violence.
F IGHTING WORDS
Words that by their very utterance inflict injury or
tend to incite an immediate breach of the peace.
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F IGHTING WORDS –EXAMPLES
o 1 942 –Man arrested for calling city official a “God damned
racketeer” and a “damn fascist”
o 1949 –Conviction overturned after preacher disturbed the
peace by delivering racist and anti -Semitic speech to an
angry crowd
o 1992 –Statute overturned prohibiting speech that “arouses
anger, alarm or resentment in others on the basis of race,
color, creed…”
o 2 011 –Westboro Baptist Church preacher’s protest at a
soldier’s funeral protected by 1 st Amendment
Exception is now so narrowly defined that it is essentially
non-existent.
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T RUE T HREATS
o E xists where a reasonable person would view
it as serious intent to harm and there is the
possibility of immediate execution of the harm.
o Look to (1) whether the threat is conditional in
nature; (2) the context of the speech; and (3)
whether the statement is hyperbole.
o Example:
o A statement by someone in an airport that
they are going to bomb the plane they are
getting on.
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D EFAMATION
•Defamatory speech is
false speech that
damages a person’s
good name, character
or reputation
•Slander = spoken
•Libel = written
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I LLEGAL H ARASSMENT
Harassing speech is not protected when it is so severe,
pervasive and objectively offensive, and so undermines
and detracts from the victim’s educational experience,
that the victim is effectively denied equal access to the
University’s resources and opportunities.
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H ARASSMENT
•To meet this high standard, offense and
disruption are not enough.
•The speech must genuinely interfere with a
reasonable person’s ability to participate in the
education process.
•It must be evaluated not only from the victim’s perspective,
but also from the perspective of a “reasonable person” in the
victim’s position.
•T he speech may be prohibited only if it is both subjectively
and objectively harassing.
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H ARASSMENT
To determine whether
something meets the
standard for severe
harassment, several
factors are considered:
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•Context
•Scope
•Duration
•Nature of the speech
•Frequency
•Location of incidents
•Identity and
relationships of those
involved
H ARASSMENT
•A male student makes a derogatory, sexist
remark to a female student in class on one
occasion
–Harassment? Probably not.
•A male student makes derogatory, sexist
remarks to the female student repeatedly, for
an ongoing period of time
–Harassment? Probably, if the student was so adversely
affected that she stopped coming to class and a
reasonable person in her position would have done the
same.
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W HAT A BOUT H ATE S PEECH ?
•Courts have made clear that there is no “hate
speech” exception to the 1 st Amendment
•No one has a right not to be offended by
speech
•Most “hate speech” is as fully protected as any
other form of protected speech
•Examples
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University Policies
•Time, Place and Manner Policy (CAP 140)
–Content and viewpoint neutral
–Serve a significant government interest and not
be more extensive than necessary
•Discrimination, Harassment and Retaliation
Policies (Executive Orders 1095 -1097)
–Courts routinely strike down efforts to use
harassment policies to censor speech/expression
•Student Conduct Code (Executive Order 1098)
•Employee Discipline (Education Code/CBAs)
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O UTSIDE /GUEST S PEAKERS
•Fundamental free speech rights significantly
limit what we can and can’t do
•B road latitude must be provided for speakers
from every spectrum, in both formal and
informal settings
–No viewpoint discrimination or censorship
–All speakers/groups must be treated equally in our
terms and conditions of access
–Must comply with campus TPM policy
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O UTSIDE /GUEST S PEAKERS
•May only restrict speech based on content
when it reasonably appears the speaker will
advocate:
–Violent overthrow of government;
–Willful destruction or seizure of campus buildings or
property;
–Disruption or impairment, by force , of the campus’s regularly
scheduled classes or other educational functions;
–Physical harm, coercion or intimidation, or other invasion of
lawful rights of campus officials, faculty or students; or
–Other campus disorder of a violent nature ;
–Exceptions are very narrow, and rarely applicable.
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Protests
•All people have the right to peacefully protest any
speaker, event, or issue, so long as the event is
not significantly disrupted
•Be careful to avoid the so -called “heckler’s veto ”
–May not disallow just because the audience finds message
offensive or reacts in disruptive manner
–May be legitimate need to take action against the disruptive
member(s) of the audience, but the speech itself must be
allowed to continue (established T/P/M policies control)
–Consistency is key
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Spectrum of Individual Response
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Intentional Avoidance
•Personal choice not to attend or engage
•May choose indirect/proactive forms of engagement
•Ignoring an event is a powerful action and sends a powerful message
Engagement
•Personal choice to attend and/or engage
•May choose to leave at any time
•Host a collaborative event and/or debate
Protest
•Host an alternative event
•Personal choice to engage in non-violent free expression and/or civil disobedience (lawless,
but peaceful)
•Violence is not permissible
Response Plan
•Student Affairs (SA) personnel will be stationed
throughout the event venue and easily identifiable.
•SA staff are the first line of contact and will attempt to
work with individuals or groups that initially become
disruptive and will inform them of violation of Cal
Poly’s Time, Place and Manner (TPM ) Policy, which
result in student disciplinary action.
•Should the situation escalate and crowds or
individuals refuse to comply with these requests, then
SA staff will inform UPD.
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When?
•When the behavior of individuals or groups are
determined to have willfully disrupted the orderly
operation of the campus, they will be advised that
their conduct violates the TPM Policy, and will be
given an opportunity to cease the disruptive conduct.
•Should the individual or group refuse to comply and
continue with the disruptive behavior, they will be
advised by UPD that they are in violation of the TPM
Policy and any relevant Penal Code section.
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What is allowed and not allowed:
•Outside –
–Bullhorns, etc.
–Large signs
–L awful protest
•Inside event –
–No bullhorns or amplified sound making devices
–Sticks
–Weapons or improvised weapons of any kind
–Signs okay but if large must remain in back
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Potential Penal Code Violations
•Disrupting a public meeting (Penal Code Section 403)
•Unlawful assembly (Penal Code Section 407)
•Failure to disperse (Penal Code Section 409)
•Disturbing the peace (Penal Code Section 415.5)
•Trespassing (Penal Code Section 602)
•Disturbing Campus Operations –student/faculty/staff (Penal
Code Section 626.4)
•Disturbing Campus Operations –non-student (Penal Code
Section 626.6)
•Resisting arrest or delaying a peace officer (Penal Code
Section 148)
•Attempting to free a person who has just been arrested
(Penal Code Section 405a)
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Discussions on Campus
•What is your role as a student/faculty/staff?
•How can we help our community with understanding
free expression and the value in higher education?
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Resources & Self -Care
•Cross Cultural Centers -Pride Center, Gender Equity
Center, Multicultural Centers
•Counseling Center
•Title IX/DHR/Equal Opportunity Office
•University Police Department
•Office of Student Rights and Responsibilities
•Bias Incident Response Team
•DOS, EOP, Dream Center, Veterans Resource Center
(VRC)
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Opportunities to Express Yourself
•Unite Cal Poly –Week of celebration for diversity and
inclusivity
–Several events planned
•January 19 –Ericka Huggins “Sustainable Activism ”
–UU Hour
•January 26 –Teach In on Dexter Lawn
–Organizing your Campus, noon –1:00 p.m.
–La Causa –How to Organize, 1:30 –3:00 p.m.
•January 31 –Unite Cal Poly: Celebrating Diversity and
Inclusion event at the PAC (music and speaker)
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