"Unlearning Liberty: Campus Censorship and the End of American Debate Hardcover"
by Greg Lukianoff [http://www.amazon.com/gp/product/1594036357]
"Challenging Your College's Speech Code"
available as a pamphlet, ready to download and print, 2010-12-10 from "FIRE" [http://thefire.org/article/12594.html]:
Contact: Robert Shibley [215-717-3473] [email@example.com]
FIRE is pleased to offer this pamphlet for public university students interested in pursuing legal challenges against university policies that restrict freedom of speech.
What is a “speech code”?
Speech codes are university regulations prohibiting expression that would be constitutionally protected in society at large. They do not have to be labeled as a “speech code” in your student handbook—in fact, they almost certainly will not be. Any university regulation restricting speech—whether found in a harassment policy, an Internet usage policy, or elsewhere—might be a speech code.
Why are speech codes problematic?
Speech codes are fundamentally at odds with the function of a university as an open marketplace of ideas. After all, how can a university promote open discussion and discourse if students fear punishment for saying the “wrong” thing? Furthermore, at public universities, speech codes are against the law. Public universities are government actors and, as such, are legally required to uphold the First Amendment rights of their students. In cases going back decades, courts (including the Supreme Court) have consistently held that college students at public universities enjoy full First Amendment rights.
Why should I care about speech codes?
Speech codes restrict your right to free speech in exactly the place where this right should be most celebrated: the college campus. Speech codes prohibit all kinds of constitutionally protected speech—everything from political statements to jokes and satire—and deaden the dialogue that should be taking place at our nation’s colleges and universities. Colleges are supposed to be engaged in a search for truth, so it’s a big problem if students can’t speak their minds on campus, explore the merits of new ideas, and search for novel ways of thinking. Moreover, speech codes teach college students that censorship, and not debate, is the proper response to speech with which one disagrees.
Typically, speech codes are aimed at expression that another person might find offensive or controversial, as well as the expression of views that are disfavored or in the minority on campus. However well-intentioned, speech codes serve to establish a strict orthodoxy of “acceptable” views and stifle the full range of expression that belongs at a university.
Do speech codes really exist at many colleges?
Yes. FIRE has found that the vast majority of the nearly 400 colleges and universities we surveyed nationwide maintain policies that clearly restrict a substantial amount of protected expression. Given the vital importance of free expression to both a liberal education and to our democracy, and the fact that speech codes at public universities brazenly violate the Constitution, this sad state of affairs simply cannot be allowed to stand.
What is the purpose of a speech code challenge?
The purpose of a speech code challenge is to obtain an official declaration by a court of law that a university’s speech code is unconstitutional. The court’s declaration will be binding not only on that school, but also on any other public university in the same jurisdiction. Thus, by challenging their institution’s speech codes, students can make both their campuses and those nearby freer for themselves and their fellow students.
What is FIRE ?
The Foundation for Individual Rights in Education (FIRE) is a non-partisan, non-profit organization dedicated to defending civil liberties on campus. We’ve been fighting for student and faculty rights since 1999, and we’ve been very successful in doing so. Since our founding, FIRE has won over 190 public victories at more than 135 colleges and universities that have a total enrollment of nearly three million students. FIRE is directly responsible for changing over 90 unconstitutional or repressive policies affecting more than 1.9 million students. Though we do not directly engage in litigation, we have coordinated seven successful constitutional challenges to speech codes. To learn more about FIRE, check out our website at www.thefire.org.
How does FIRE challenge speech codes?
FIRE has several attorneys on staff, but we do not directly litigate. Rather, we coordinate legal challenges to speech codes by identifying restrictive speech codes at public universities; finding students at those institutions who are willing to challenge the policies; and finally, securing the pro bono (that is, volunteer) assistance of attorneys who are members of our nationwide Legal Network. These skilled attorneys are dedicated to protecting First Amendment rights on campus and are willing to donate their time and expertise to defending students threatened by unconstitutional speech codes. Once we have matched up an unconstitutional speech code with a willing student-plaintiff and a Legal Network attorney, we are ready to file a complaint in federal court. The complaint will ask the court to declare the university’s speech code unconstitutional, thus forbidding the university from maintaining or enforcing it and forcing the university to comply with the First Amendment.
What is FIRE’s track record with speech code challenges?
FIRE has never lost a speech code litigation case. To date, FIRE has coordinated speech code litigation at seven schools: Citrus College (California), Shippensburg University (Pennsylvania), Texas Tech University, the State University of New York at Brockport, San Francisco State University, Temple University (Pennsylvania), and Tarrant County College (Texas). In each of these challenges, the university either settled out of court by voluntarily revising its speech codes, as in the cases of Citrus College and SUNY-Brockport, or was handed a legal defeat in court, as in the cases of Shippensburg, Texas Tech, San Francisco State, Temple, and Tarrant County College. You can read more about these victories on our website, www.thefire.org. Our unbroken series of successful challenges speaks to the care with which FIRE proceeds in coordinating litigation. We challenge university policies only when they are clearly unlawful, and we try to procure student-plaintiffs and attorneys who are committed to winning the challenge. Most importantly, FIRE’s track record reflects that the law is firmly on our side when it comes to the unconstitutionality of campus speech codes.
What do students who serve as plaintiffs actually do? Is it a lot of work?
Very little is actually required from students serving as plaintiffs in speech code challenges, as a student’s day-to-day involvement in the suit is very limited. A student-plaintiff would first meet with the cooperating attorney and sign an affidavit—a sworn statement—stating that he or she would like to engage in protected speech that is prohibited by the policy or policies in question without fear of punishment. After that, the student’s involvement with the case would likely be largely complete in terms of his or her responsibilities or required presence. The court would then receive arguments from the university and from the student’s attorney, and begin the process of deciding whether or not the policies are unconstitutional. It is rare for a student to be required to appear in court at all, and FIRE will help every step of the way.
What happens to students who file speech code challenges?
Students who file speech code challenges continue to live their lives just as before and proceed to obtain their degrees and begin their careers, just like their fellow students. Many students receive positive media attention and are hailed for their commitment to principle and willingness to stand up for the First Amendment. Some former plaintiffs become successful attorneys themselves, like Robert J. Corry, who led a successful challenge of Stanford University’s speech code and now practices as a civil rights and criminal defense attorney in Colorado. Mr. Corry was named one of America’s top lawyers under the age of 40 by the National Law Journal.
Why should I get involved?
Challenging your school’s speech codes is an excellent way to stand up for not only your own right to free expression, but for the rights of your fellow students. Students on every public university campus are legally entitled to the full protection of the First Amendment—and any denial of this right is unlawful, unconstitutional, and a betrayal of the university’s role as a marketplace of ideas. You don’t have the option of violating the law, so why should your university? Institutions of higher education play a vital role in our society in educating students inside and outside the classroom and preparing them for the world that awaits them beyond the campus. This process cannot fully take place without the liberty to discuss issues freely and participate in a true exchange of ideas. Because speech codes deny students this freedom, they need to be removed from our colleges and universities, and often, it takes a constitutional challenge mounted by a determined student to do so. Students can aid in the effort to rid our campuses of speech codes at no financial cost to themselves and with little time and effort. While no outcome is ever guaranteed in court, the law is firmly on the side of those challenging university restrictions on the freedom of expression.
FIRE attorneys stand ready to answer any questions you may have about your rights and challenging your university’s speech codes. Please do not hesitate to contact us.
WILL CREELEY [firstname.lastname@example.org], Director of Legal and Public Advocacy at the Foundation for Individual Rights in Education (FIRE) [601 Walnut Street, Suite 510, Philadelphia, PA 19106] [215-717-3473]
"Army vet handing out U.S. Constitution on campus meets free-speech rules"
2013-10-20 by Debra Saunders from the "San Francisco Chronicle" [http://blog.sfgate.com/djsaunders/2013/10/20/army-vet-handing-out-u-s-constituion-on-campus-meets-free-speech-rules/]:
Here’s the video Army veteran/student Robert Van Tuinen made after Modesto Junior College security stopped him from passing out copies of the U.S. Constitution. Not only did security stop Van Tuinen from giving away the Constitution, the officer sent him to talk to the administration — the equivalent of being sent to the principal’s office in high school. That exchange also is on the video.
I found it instructive that the guard accused Van Tuinen of acting on behalf of the Heritage Foundation, which prints and gives out copies of the Constitution. I asked Van Tuinen if he thought the school had targeted him because he was passing out a document printed by a conservative organization. His answer: “I’m pretty sure that they go after everybody. The administration didn’t even realize until later that the constitutions were made by Heritage.”
In his view, the school is mostly afraid of any form of political speech by students.
In other words, this was sort of a bureaucratic decision: Don’t make waves. You’ll make work for us.
"Speaking truth to power at Modesto Junior College"
2013-10-18 by Debra J. Saunders from the "San Francisco Chronicle" [http://www.sfgate.com/opinion/saunders/article/Speaking-truth-to-power-at-Modesto-Junior-College-4907823.php]:
Army veteran Robert Van Tuinen decided to celebrate U.S. Constitution Day on Sept. 17 by handing out copies of the Constitution at Modesto Junior College, where he is a student. If he had been at UC Berkeley or another politically correct campus, some liberal students probably would have picked an argument with him, maybe even accused him of hate speech.
But as this was Modesto Junior College, Van Tuinen didn't attract a lot of notice. Until, that is, a security guard told Van Tuinen that he couldn't hand out the Constitution. Or the Communist Manifesto, for that matter. On an edited video, Van Tuinen captured the guard explaining that "passing out anything whatsoever, you have to have permission through the student development office."
An administrative aide at that office explained the school's policies for "time-place-and-manner free-speech area." Students have to sign up in a binder to use a small designated space, and since two students already were protesting, Van Tuinen would have to wait his turn to speak freely and pass out literature. When Van Tuinen told her he just wanted to pass out copies of the Constitution, she asked, "Umm, why?"
Van Tuinen was appalled. When he served in Kuwait, he learned that the military doesn't put a high premium on free speech. Soldiers don't have the same rights as students, and the brass had little interest in his pontificating on the framers' intent. "That's when I figured out the service wasn't the best place for me," he confided. But who knew that college life would be equally casual about stifling his self-expression?
Yes, Virginia, there is a California college campus where protest is not a major.
Let me confess. In this job, I've observed campus protest at its best, that is to say, worst - Berkeley students throwing incendiary objects at the chancellor's home, tree-sitters camped in a campus grove for 20 interminable months and UC Davis paying a $1 million settlement to pepper-sprayed students. I can't help it, I find Van Tuinen's story cute as a button.
But it's not. It's not because campus personnel told a student he cannot give out copies of the U.S. Constitution. In a statement, college President Jill Stearns asserted, "There is absolutely no requirement that a student register weeks in advance and hand out his literature only in a small marked area." But a security guard and staff binder suggest otherwise. The very fact that a campus has a two-person free-speech zone troubles Robert Shibley, vice president for the Foundation for Individual Rights in Education (FIRE), which has aided Van Tuinen in the free-speech lawsuit he filed against the college.
"We're seeing a lack of a sense of proportion," quoth Shibley, "and frankly a fundamental fear of free speech that is very disturbing to see in higher education."
At community colleges, Shibley added, many students have to balance an academic workload and jobs; they don't have time to occupy the quad or save the trees. Which makes Van Tuinen unique.
And it makes the Modesto Junior College policy all that much harder to understand. It's 2013 - college staff should understand the sanctity of free speech. Instead, they only saw procedures set out in overly nuanced language burped out of committee based on bland advice from an academic league. Oddly, it seems the policy's goal was to avoid controversy, not accommodate the exchange of ideas.
Amazingly, college brass still hasn't figured out that they cannot win this case because their policies step on First Amendment rights. And yes, they are running a college.
Van Tuinen told me he found out about the free-speech zone about a week before U.S. Constitution Day. He said he hoped he would be able to distribute copies of the Constitution, provided by the Heritage Foundation, without interference, but brought along a camera just in case. You could say that Van Tuinen was trolling for trouble. But if handing out copies of the U.S. Constitution without intruding on the liberty of others attracts school security, this country is in trouble. As the woman in student development succinctly put it: Umm, why?
Community college strikes back -
"We do not comment on pending litigation, however, we express our thanks to those individuals willing to stand up for our Constitution and expression of free speech. We affirm the commitment of the college and district to civil discourse. We appreciate all points of view across the spectrum and support every individual's right to express their view.
"Modesto Junior College and the Yosemite Community College District wholly support the state and federal constitutions and student free speech. The administration would not prohibit a student from passing out the Constitution. As such, we promote and celebrate Constitution Day each year at both of our college campuses." - Nick Stavrianoudakis, district public affairs director, Yosemite Community College District
"Lawsuit! Student Ordered to Stop Handing Out Constitutions on Constitution Day Files Suit"
2013-10-10 from "FIRE" [http://thefire.org/article/16327.html]:
FRESNO, Calif., Oct. 10, 2013—A student who was ordered by college administrators to stop handing out copies of the Constitution on campus—on Constitution Day—filed suit today in federal court. Modesto Junior College (MJC) student and Army veteran Robert Van Tuinen is suing the Yosemite Community College District and MJC administrators for violating his First Amendment rights. Van Tuinen is represented by the law firm of Davis Wright Tremaine [http://www.dwt.com/offices/WDC/] and is assisted by the Foundation for Individual Rights in Education (FIRE).
“Last month, Robert Van Tuinen caught on camera administrators who were so unfamiliar with the basic principles of free speech that they prevented him from passing out the Constitution to his fellow students on Constitution Day,” said FIRE President Greg Lukianoff. “Even in the face of national shock and outrage, the college has failed to reform its absurd ‘free speech zone.’ Now it will have to defend that policy in federal court.”
MJC made national news when on September 17 (the anniversary of the U.S. Constitution's signing) it prevented Van Tuinen from handing out copies of the U.S. Constitution in a grassy area by the student center. As captured in a video taken by Van Tuinen, a campus police officer informed him that he could not pass out any materials without first registering with the student development office. After unsuccessfully attempting to convince the officer that this would violate his right to free speech, Van Tuinen went into the student center at the officer’s request.
After further speaking with the officer, Van Tuinen then spoke with MJC administrator Christine Serrano, who told him that he could only pass out literature inside the “free speech area,” which she informed him was “in front of the student center, in that little cement area.” Asking for an application and a copy of his student ID, Serrano told Van Tuinen that she had “two people on campus right now, so you’d have to wait until either the 20th, 27th, or you can go into October.” When Van Tuinen continued to protest, Serrano told him to make an appointment to meet with Vice President of Student Services Brenda Thames so that she could further explain to him “what the time, place, and manner is.”
In response to public outrage (including more than 150,000 views of the video of the college’s censorship on YouTube), MJC President Jill Stearns issued a statement about the incident claiming that “students may distribute printed material on campus in areas generally available to students and the community as long as they do not disrupt the orderly operation of the college.” However, this statement is in direct conflict with the college’s actual procedures—procedures that are seen being enforced in the video and that Stearns only promised to “evaluate.”
The complaint’s multiple counts charge the community college district with violating Van Tuinen’s free speech rights under the First Amendment, both as the rules were applied to him and as written on their face. It also charges the district with violating the right to free speech guaranteed in the California Constitution and with failing adequately to train its employees to respect students’ right to free speech. Van Tuinen is requesting an injunction prohibiting the college from enforcing its speech code as well as monetary damages to be determined by the court.
“Constitutional law can get pretty complicated at times. This is not one of those times,” said FIRE Senior Vice President Robert Shibley. “As FIRE has said from the beginning, every person at Modesto Junior College responsible for enforcing this policy should have known better. The fact that Modesto’s policy was not immediately abandoned when its shameful results were exposed on video is more evidence that too many college administrators fear freedom of speech—and demonstrates how out of touch they are with an American public that respects the First Amendment.”
Modesto Junior College Free Speech Zone -
The small area circled in orange below is the "free speech area" cited by Modesto administrators as justification for not allowing the free distribution of literature across campus.
Below is a photo of the free speech area marked above.
"President Stearns' statement about the Constitution and expression of free speech"
from Jill Stearns, President of "Modesto Junior College" [http://www.mjc.edu/general/news/releases/2013/presidentsternsstatement.html]:
On September 18, 2013, Modesto Junior College received a letter regarding a posted copy of an edited video taken on the MJC campus. Modesto Junior College and the Yosemite Community College District immediately launched a comprehensive review of the incident.
Upon review, it was determined conversation between the student and staff was confusing regarding distribution of materials on campus. A formal apology has been provided the student. We deeply regret this misunderstanding. College staff have been provided the policy and procedure for review and follow-up training is planned to further ensure that clear and accurate information is provided in the future.
As described in the District's official Board Policy and Administrative Procedure, students may distribute printed material on campus in areas generally available to students and the community as long as they do not disrupt the orderly operation of the college. There are procedures to avoid duplicative use of areas. The district is evaluating its policies and procedures. The college and district administration support the peaceful distribution of printed materials on campus. There is absolutely no requirement that a student register weeks in advance and hand out his literature only in a small marked area.
Modesto Junior College and the Yosemite Community College District wholly support student free speech and support Constitution Day with activities each year. It is thus troubling to see this type of incident unfold the way it has, and for the college to be subjected to allegations of censorship. The college and district support civil discourse as a fundamental pillar of education. Although we appreciate free speech, it is disheartening that some of the public response has diverted so drastically from the principles of civility and in fact has become directed at individuals. Staff have been called morons, idiots, whores, and Nazis. Moreover, some communication was egregious to the point of death threats which clearly violates any precepts of free speech.
MJC remains committed to excellence in educational programs, service to students, and institutional effectiveness. The college is taking even this most unfortunate incident and using it as an opportunity to review policy, procedure, and interaction to improve service to students. I wish to express my thanks to those individuals willing to stand up for our Constitution and expression of free speech. To those who were offended by the appearance of censorship, we again affirm the commitment of the college and district to civil discourse. We appreciate all points of view across the spectrum and support every individual's right to express their view.
"Modesto Junior College Guidelines and Procedure for Requesting College Facilities for Free Speech"Office of the Student Development and Campus Life
Modesto Junior College
435 College Avenue, Modesto, CA 95350
Phone 209 575-6700 Fax 209 575-6143
The Yosemite Community College District (“YCCD”) Board policy 5550, in furtherance of and consistent with California Education Code § 76120, provides the Colleges of the District are non-public forums, except for those areas on each campus designated as “free speech areas,” which are deemed limited public forums. The Chancellor shall enact such regulations and administrative procedures as are necessary to reasonably regulate the time, place and manner of the exercise of free expression in the limited public forums.
These regulations shall be
(2) narrowly tailored to serve a significant governmental interest; and
(3) leave open ample alternative channels of communication.
YCCD Board policy 5550 allows Modesto Junior College to establish institutional regulations and procedures, and in accordance with Board policy, Modesto Junior College has established such regulations and procedures to provide students and community members with the opportunity to exercise their right of expression, while fostering an atmosphere and conditions in which Modesto Junior College’s educational mission can be carried out without disruption. Modesto Junior College shall identify appropriate locations on campus to be used as limited public forum use as prescribed by YCCD Board Policy.
Limited public forums on Modesto Junior College’s campus are identified herein below:
A. Modesto Junior College (East Campus) the area(s) generally available to students and the community is designated as the stage area northeast of the Quad. The Free Speech boards are located in front of the Student Center.
B. Modesto Junior College (West Campus) generally available to students and the community is designated in the Quad area in between Yosemite and Sierra Halls. The Free Speech boards are located inside Mary Stuart Rogers Student Learning Center. Modesto Junior College reserves the right to assign applicants to use limited public forum locations based upon College operations.
1. No event, speech, demonstration, activity or other exercise of “Free Speech” on campus shall interfere with or disrupt the educational process or other scheduled activities of the campus or its facilities.
2. To insure no conflicts with scheduled campus events, all college and non-college groups and individuals are to request advance approval.
3. Modesto Junior College recognizes the right of free expression, but encourages speakers to be respectful of all people. The following examples are considered unprotected speech, and will not be tolerated: threats, incitement of imminent lawless action, racial and sexual harassment, fighting words, obscenity and defamation.
4. Cooperation with Modesto Junior College staff is expected when visiting the campus and/or using campus tables, equipment and facilities.
5. Compliance with pertinent college, city, state and federal regulations.
6. The signature of the requesting/responsible party indicates agreement to work within these guidelines, and if the application is submitted on behalf of a college group, the requesting college representative agrees to attend and supervise the entire event.
7. Use of free speech areas is limited to normal hours of college operation.
8. Refusal to cooperate with the above guidelines will subject the user to possible punitive action, including, but not limited to, termination of the program in process; denial of further use of Free Speech Areas; Discipline; Probation; Suspension; Expulsion and/or Removal from campus. Modesto Junior College students have the right to appeal the decision of the designated college official.
Students and Student Groups: To use the free speech areas, student groups or individuals must submit a completed “Limited Public Forum Request Form” to the Office of Student Development and Campus Life for approval not less than five (5) working days prior to the proposed date of use. In order to provide the most access to the most people, no individual or group may reserve free speech areas more than eight (8) hours per semester. Requests for additional time per semester may be authorized by administration if space and time is available. Student requests submitted less than five (5) working days before the proposed date of use (“last minute requests”) will be considered, but must be reviewed by the Student Activities Advisor, and reconciled with the College Facilities Office.
Non-Students and Off-campus groups: To use the free speech areas, non-students and groups from off-campus must submit a completed “Limited Public Forum Request Form” to the Office of Student Development and Campus Life for approval not less than five (5) working days prior to the proposed date of use. In order to provide the most access to the most people, no individual or group may reserve free speech areas more than eight (8) hours per semester. Requests for additional time per semester may be authorized by administration if space and time is available. No last minute requests are permitted.
If cancellation is necessary, immediate notice shall be given to the Office of Student Development and Campus Life.
Limited Public Forum Request Form
5 Working Days Required for Processing
Are you and/or the Group: a Student or Non-Student ? (mark one)
Hours of Use: East Campus____ West Campus____
Number of Participants: ______ Will there be amplified sound? Yes _____ No _____ (mark one)
If yes, please describe: __________________________________________________________________
Please describe any additional set up requirements you may require (i.e., tables, chairs, etc.) and/or any materials you will bring on to the campus (petitions, displays, printed materials, promotional items, etc):
Requesting / Responsible Party Contact Information:
Contact Person: ___________________________ Phone Number:
Email contact: Other Phone:
Form of Identification and ID Number__________________________ Office Staff ID Verification___
Your signature(s) below affirm the guidelines for use of the free speech areas will be followed.
Applicant’s Authorized Signature
FOR COLLEGE USE ONLY: Date Application Received:
Approved by SD/CL: ____________________________________ Date:
Approved by Vice President- Student Services:: ____________________________________ Date:
Approved by President: ____________ Date:
(President approval required only if Applicant is a for-profit organization) 10/17/11
Office of the Student Development and Campus Life
Modesto Junior College
435 College Avenue, Modesto, CA 95350
Phone 209 575-6700 Fax 209 575-6143
Complaint in 'Van Tuinen v. Yosemite Community College District, et al.'
Posted 2013-10-10 to [http://thefire.org/article/16329.html], the following is an extract:
ROBERT VAN TUINEN, Plaintiff,
YOSEMITE COMMUNITY COLLEGE DISTRICT, DR. JOAN SMITH, JILL STEARNS, MICHAEL GUERRA, BRENDA THAMES, BECKY CROW, CHRISTINE SERRANO, DOE DEFENDANT 1, Defendants.
Plaintiff Robert Van Tuinen complains of Defendants and alleges:
1. Each year on September 17 the United States celebrates the freedoms guaranteed by the Constitution and Bill of Rights. Congress officially designated September 17 as “Constitution Day” to commemorate the anniversary of the date that the Constitution was signed in 1787. Pursuant to that legislation, the Department of Education requires educational institutions that receive federal funding to hold educational programs pertaining to the United States Constitution on that date. Notice of Implementation of Constitution Day and Citizenship Day , 70 Fed. Reg. 29727 (May 24, 2005).
2. On September 17, 2013, the students of Modesto Junior College (the “College”) received a very different lesson on Constitution Day, as the school’s officials barred Plaintiff Robert Van Tuinen from distributing copies of the U.S. Constitution to fellow students in a public area of the campus. Both a College security officer and a College administrator instructed Mr. Van Tuinen that he would be allowed to distribute his message and any written materials only in the College’s “free speech zone” that occupies a miniscule proportion of its East Campus, and only after scheduling his planned activity several days or weeks ahead of time. These actions were taken under College policies that not only require prior permission – with at least five days ’ notice – to engage in even such non-obtrusive speech as handing out literature, but also limit all individuals and student groups to using the free speech zone no more than eight hours each semester. Given the size of the student body, the free speech “allowance” amounts to scarcely more than two-and-half minutes per student, per semester. The policies contain no criteria for control of the free speech zone, which is thus left to the sole discretion of College security and administrators.
3. The College’s reflexive bureaucratic restriction of free expression is sadly ironic, as “[t]he essentiality of freedom in the community of American universities is almost self-evident.” Sweezy v. New Hampshire , 354 U.S. 234, 250 (1957). In a long line of cases, the United States Supreme Court has made clear that “[t]eachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.” Id . The Court has stressed that “state colleges and universities are not enclaves immune from the sweep of the First Amendment.” Healy v. James , 408 U.S. 169, 180 (1972). Quite to the contrary, “[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.” Id . (quoting Shelton v. Tucker , 364 U.S. 479, 487 (1960)). Accordingly, courts have zealously guarded the freedoms of speech, assembly, and petition in recognition that “[t]he college classroom with its surrounding environs is peculiarly the ‘marketplace of ideas,” id , and that “[t]he first danger to liberty lies in granting the State the power” to limit these freedoms “against a background and tradition of thought and experiment that is at the center of our intellectual and philosophic tradi- tion.” Rosenberger v. Rector & Visitors of Univ. of Va. , 515 U.S. 819, 835 (1995).
4. This is a civil rights action to protect and vindicate the First and Fourteenth Amendment rights of Mr. Van Tuinen and his fellow students in the Yosemite Community College District (the “District”), as well as their rights under Article 1 of the California Constitution. By policy and practice, the District unlawfully restricts the College’s students’ constitutional rights to free expression. The policies enforced against Plaintiff are facially overbroad and prohibit the exercise of rights to free expression on the District’s college campuses.
5. This action seeks declaratory and injunctive relief, damages, and attorneys’ fees, to vindicate and safeguard the fundamental constitutional rights of Mr. Van Tuinen and his fellow students to freedom of speech and due process of law as secured by the First and Fourteenth Amendments of the United States Constitution, and by the Liberty of Speech Clause in the California Constitution. The College’s and District’s policies and enforcement practices are challenged on their face and as applied to Mr. Van Tuinen.
[ ... ]
V. STATEMENT OF FACTS
A. Violation of Plaintiff’s Constitutional Rights
22. On September 17, 2013, Mr. Van Tuinen endeavored to distribute copies of the U.S. Constitution to fellow students outside the campus student center at Modesto Junior College.
23. Approximately ten minutes after he began handing out copies of the Constitution, a College campus security officer, Doe Defendant 1, arrived and told Mr. Van Tuinen that any individual who wants to distribute pamphlets or literature on campus must first register with the College Student Development office.
24. Mr. Van Tuinen responded that requiring him to pre-register with College officials in order to distribute copies of the Constitution would impair his freedom of speech. After Doe Defendant 1 insisted that Mr. Van Tuinen would not be permitted to continue speaking to students or distributing literature without official approval, Mr. Van Tuinen followed the officer into the student center.
25. Once inside, Mr. Van Tuinen explained to Doe Defendant 1 that he intended to start a chapter of Young Americans for Liberty at the College and wanted to distribute copies of the Constitution to spark student interest. Doe Defendant 1 told Mr. Van Tuinen that “as a student on campus passing out anything whatsoever, you have to have permission through the Student Development office.” Doe Defendant 1 then directed Mr. Van Tuinen to the Student Development office.
26. In the Student Development office, Mr. Van Tuinen spoke with Administrative Specialist Christine Serrano. Defendant Serrano told Mr. Van Tuinen that because of “a time, place, and manner” restriction, he could distribute literature only inside the “free speech area,” which was located “in front of the student center, in that little cement area.” The “free speech area” is a small, slightly raised concrete “stage” that makes up a minuscule portion of the College campus, as described in Paragraph 38 of this Complaint.
27. Defendant Serrano told Mr. Van Tuinen to fill out an application, which she indicated would require providing, among other things, a photocopy of his student identification card. Defendant Serrano informed Mr. Van Tuinen that she had “two people on campus right now, so you’d have to wait until either the 20th, 27th, or you can go into October.” Mr. Van Tuinen reiterated his desire to pass out copies of the Constitution that day – on Constitution Day. Defendant Serrano denied his request, stating “you really don’t need to keep going on.”
28. Defendant Serrano then telephoned an unnamed person and informed that individual that Mr. Van Tuinen “just wants to question the authority of why can’t he hand out constitutional-type papers.” Thereafter, Defendant Serrano told Mr. Van Tuinen that he would have to make an appointment with College Vice President of Student Services Brenda Thames so that she could further explain to him “what the time, place, and manner is.”
29. On information and belief, when Doe Defendant 1 approached Mr. Van Tuinen outside the student center, when he spoke with him within the student center, and when he directed Mr. Van Tuinen to the Student Development office, Doe Defendant 1 knew, or should have known, that Mr. Van Tuinen would be instructed that he must restrict his distribution of literature to the “free speech area,” subject to the application and other limits that doing so entails.
30. Doe Defendant 1 and Defendant Serrano censored Mr. Van Tuinen’s lawful and constitutionally protected expression.
31. The actions by Doe Defendant 1 and Defendant Serrano have caused Mr. Van Tuinen to refrain from expressing his beliefs or distributing literature while on campus for fear of being punished under College or District policies.
32. Doe Defendant 1 and Defendant Serrano knew or should have known that preventing Mr. Van Tuinen from speaking and distributing literature in public areas of the College campus violates his clearly established constitutional rights.
B. The District’s and College’s Policies
33. The Yosemite Community College District includes two two-year colleges (Columbia College and Modesto Junior College). In the 2011-2012 academic year, 16,209 Full Time students were enrolled. The District had a 2011- 2012 budget of $114.4 million.
34. The District promulgates Policies and Administrative Procedures pursuant to Cal. Educ. Code §§ 66300 and 70902.
35. District Policy 3900 (formerly policy 5550) titled “Time, Place & Manner,” provides that “[t]he Colleges of the District are non-public forums, except for those areas designated as ‘free speech areas’, which are limited public forums.” ( See Exhibit A.) District Policy 3900 also establishes that “The Chancellor shall enact such administrative procedures as are necessary to reasonably regulate the time, place and manner of the exercise of free expression in the limited public forums.” Policy 3900 further states: “The administrative procedures promulgated by the Chancellor shall not prohibit the right of students to exercise free expression, including but not limited to the use of bulletin boards designated for such use, the distribution of printed materials or petitions in those parts of the College designated as ‘free speech areas’, and the wearing of buttons, badges, or other insignia.”
36. Pursuant to District Policy 3900, the College adopted and published “Guidelines and Procedure for Requesting College Facilities for Free Speech” (the “College Guidelines”). ( See Exhibit B.) The College Guidelines state that District Policy 3900 was promulgated “in furtherance of and consistent with California Education Code § 76120,” and it “provides that Colleges of the District are non- public forums, except for those areas on each campus designated as ‘free speech areas,’ which are deemed limited public forums.”
37. California Education Code § 76120, however, does not declare that campuses are non-public forums, and states that “[s]uch rules and regulations shall not prohibit the right of students to exercise free expression,” including “the distribution of printed materials or petitions.”
38. Nevertheless, the College Guidelines confine all approved campus expression to two small areas of the campus. The College Guidelines state that pursuant to District Policy 3900, the College has identified “appropriate locations on campus to be used as limited public forum use as prescribed by [District] Board Policy.” According to the College Guidelines, “Limited public forums on Modesto Junior College’s campus” include, at the College’s East Campus, “the stage area northeast of the Quad,” and “Free Speech boards … located in front of the Student Center.” The East Campus Map shows this area of the Quad. It is indicated by the green shaded area. ( See Exhibit C, East Campus Map, modified with color and explanation, and related photograph.) At its longest and widest points, Plaintiff estimates that the free speech area on the East Campus is approximately 28 feet long, and 22 feet across, though it is irregularly shaped with several angles and small outcroppings, but in any event comprises approximately 600 square feet. The College Guidelines further provide a “[l]imited public forum” at the College’s West Campus, a space “designated in the Quad area in between Yosemite and Sierra Halls,” and “Free Speech boards … located inside Mary Stuart Rogers Student Learning Center.”
39. The College’s East and West Campuses have many suitable open areas and sidewalks beyond the free speech areas where student expressive activity, including distribution of literature, will not interfere with or disturb access to College buildings or sidewalks, impede vehicular or pedestrian traffic, or in any way substantially disrupt the operations of campus or the College’s educational functions.
40. The College Guidelines state that the College “reserves the right to assign applicants to use limited public forum locations based upon College operations,” without describing any criteria the College applies to assigning free speech applicants to a specific location.
41. The College Guidelines further require that students request permission to distribute printed materials on campus. According to the College Guidelines: To use the free speech areas, student groups or individuals must submit a completed “Limited Public Forum Request Form” to the Office of Student Development and Campus Life for approval not less than five (5) working days prior to the proposed date of use. * * * Student requests submitted less than five (5) working days before the proposed date of use (“last minute requests”) will be considered, but must be reviewed by the Student Activities Advisor, and reconciled with the College Facilities Office. (Emphasis added).
42. In addition, the College Guidelines limit individuals or groups to eight hours of access to the “free speech areas” per semester. “Requests for additional time per semester may be authorized by administration if space and time is available.” With just over 17,900 students enrolled, a Fall semester that runs for 16 weeks from August 26 through December 14, 2013, and Guidelines restricting the availability of the “free speech zone” to “normal hours of operation,” which generously construed might encompass 8 a.m. to 6 p.m. Mondays through Fridays, students are even more limited in their ability to exercise their rights to free speech. Indeed, if each student sought to exercise his or her right to free expression on the East Campus, they would be able to do so for a mere 2.57 minutes per semester .
43. The College’s “Limited Public Forum Request Form,” affirms that the College requires “5 Working Days … For Processing.” ( See Exhibit D.) Students must indicate on the form whether they plan to use the East Campus or West Campus free speech area, and the hours of use, submit a form of identification, and affirm that “the guidelines for use of the free speech areas will be followed.”
44. The College Guidelines do not provide standards to guide the discretion of the public officials of the College tasked with reviewing requests to use “free speech areas” or to evaluate requests for additional time, thus empowering such public officials to administer the policy arbitrarily or on the basis of impermissible factors.
45. Because the policy functions as a licensing scheme with which students must comply before engaging in the exercise of their free speech rights, the policy constitutes a prior restraint on speech, resulting in censorship.
46. Students are subject to disciplinary action for violating District and College rules and regulations. The College Guidelines state that “[r]efusal to cooperate with the … guidelines will subject the user to possible punitive action, including, but not limited to, termination of the program in process; denial of further use of Free Speech Areas; Discipline; Probation; Suspension; Expulsion and/or Removal from campus.”
47. District Policy 3900 and the College Guidelines have a chilling effect on Mr. Van Tuinen’s rights, and those of all students of the District and the College, to engage freely and openly in expressive activities, including distributing literature.
48. Mr. Van Tuinen wishes to engage in expressive activities, including distributing literature, on the College’s campus without the need to obtain advance approval from College officials, but he has not done so since being censored by Doe Defendant 1 and Defendant Serrano on September 17, 2013, for fear of disciplinary action.
49. All of the acts of Defendants, their officers, agents, employees, and servants were executed, and are continuing to be executed, by the Defendants under the color and pretense of the policies, statutes, ordinances, regulations, customs, and usages of the State of California.
50. Because the policies and actions of Defendants prevent Mr. Van Tuinen from exercising his constitutional rights to free expression at the College, he is suffering irreparable injury.
51. Defendants’ policies and actions create a hostile atmosphere for free expression on campus, chilling the speech of other College students who are not before the Court.
VI. CAUSES OF ACTION FIRST CAUSE OF ACTION
As-Applied Violation of Plaintiff’s Right to Free Speech Under the First and Fourteenth Amendments (42 U.S.C. § 1983)
52. Plaintiff repeats and realleges each of the foregoing allegations in this Complaint.
53. The First and Fourteenth Amendments extend to campuses of state colleges and universities. Healy v. James , 408 U.S. at 180.
54. The College bears the burden of justifying regulation of expressive activity in the public areas of the campus.
55. By stopping Plaintiff’s lawful activities distributing copies of the U.S. Constitution on the Modesto Junior College campus without prior approval and outside the “free speech zone,” Defendants have explicitly and implicitly chilled Plaintiff’s free expression, and have deprived Plaintiff of his clearly established rights to freedom of speech and expression secured by the First and Fourteenth Amendments to the Constitution of the United States.
56. Doe Defendant 1 and Defendant Serrano violated a clearly established constitutional right of which all reasonable college administrators and staff should have known, rendering them liable to Mr. Van Tuinen under 42 U.S.C. § 1983.
57. The denial of constitutional rights is irreparable injury per se , and Mr. Van Tuinen is entitled to declaratory and injunctive relief. As a consequence of being denied his First Amendment right to distribute copies of the U.S. Constitution on Constitution Day, Plaintiff experienced significant emotional pain and anguish.
58. Plaintiff is entitled to a declaration that Defendants violated his First Amendment rights. Additionally, Plaintiff is entitled to damages in an amount to be determined by the evidence and this Court, and the reasonable costs of this lawsuit, including his reasonable attorneys’ fees.
SECOND CAUSE OF ACTION
As-Applied Violation of the Right to Liberty of Speech Under the California State Constitution
59. Plaintiff repeats and realleges each of the foregoing allegations in this Complaint.
60. Plaintiff’s peaceful speech activities are protected under article 1, section 2 of the California Constitution.
61. By stopping Plaintiff’s lawful activities distributing copies of the U.S. Constitution on the College campus without prior approval and outside the “free speech zone,” Defendants, acting under color of state law and according to policy and practice, have explicitly and implicitly chilled Plaintiff’s free expression, and deprived Plaintiff of his clearly established rights to freedom of speech protected under article 1, section 2 of the California Constitution.
62. Because of Defendants’ policies and actions, Plaintiff has suffered, and continues to suffer, irreparable injury that cannot be fully compensated by an award of money damages.
63. Plaintiff is entitled to a declaration that Defendants violated his Liberty of Speech rights under the California Constitution. Additionally, Plaintiff is entitled to damages in an amount to be determined by the evidence and this Court, and the reasonable costs of this lawsuit, including his reasonable attorneys’ fees.
THIRD CAUSE OF ACTION Facial Challenge to Violation of Right to Free Speech Under the First and Fourteenth Amendments (42 U.S.C. § 1983) – Prior Restraint
64. Plaintiff repeats and realleges each of the foregoing allegations in this Complaint.
65. Students have a First Amendment right to engage in expressive activities and to distribute written materials in the public areas of a state college without obtaining advance permission from government officials. Widmar v. Vincent , 454 U.S. 263, 267 n.5 (1981); Papish v. Board of Curators of Univ. of Mo. , 410 U.S. 667 (1973); Jews for Jesus, Inc. v. City Coll. of San Francisco , 2009 WL 86703, at *3 (N.D. Cal. Jan. 12, 2009).
66. A permitting requirement is a prior restraint on speech and therefore bears a heavy presumption against its constitutionality. Berger v. City of Seattle , 569 F.3d 1029, 1037 (9th Cir. 2009). The presumptive invalidity and offensiveness of advance notice and permitting requirements stem from the significant burden they place on free speech.
67. The policies and conduct of Defendants restricting all First Amendment protected speech by requiring an advance application to engage in such activity before allowing expressive activities on the College campus grounds is an unconstitutional prior restraint on First Amendment rights.
68. Laws that subject the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, are unconstitutional. Shuttlesworth v. City of Birmingham , 394 U.S. 147, 150-51 (1969). Defendants’ policies vest unfettered discretion in College security and administrative personnel to restrict constitutionally protected expression.
69. As a direct result of the Defendants’ continued maintenance of District Policy 3900 and the College Guidelines, Plaintiff and other similarly situated students have been, and will continue to be, irreparably injured in that they have been, and will be, deprived of their right to free speech under the First and Fourteenth Amendments to the Constitution.
70. As a legal consequence of the Defendants’ violation of Plaintiff’s and other similarly situated students’ First and Fourteenth Amendment rights, Plaintiff is entitled to injunctive relief, and the reasonable costs of this lawsuit, including his reasonable attorneys’ fees.
FOURTH CAUSE OF ACTION Facial Challenge to Violation of Right to Free Speech Under the Plaintiff’s First and Fourteenth Amendment Rights (42 U.S.C. § 1983) – Overbreadth
71. Plaintiff repeats and realleges each of the foregoing allegations in this Complaint.
72. The College bears the burden of justifying any regulation of expressive activity in the public areas of the campus. Any restrictions on speech in public areas must serve a substantial public interest and must be narrowly tailored and applied so as not to burden more speech than is essential.
73. Even purportedly neutral regulations, such as time, place, or manner restrictions, must be narrowly tailored and must not burden more speech than necessary to achieve a substantial governmental interest.
74. The College cannot legitimately declare the vast majority of public areas on campus to be “non-public forums.” McGlone v. Bell , 681 F.3d 718 (6th Cir. 2012). Nor can the College identify a substantial governmental interest to be served by preventing individuals from speaking through the distribution of literature in the public areas of campus.
75. The policy restricting all First Amendment protected speech to designated “free speech zones” at the College is unconstitutionally overbroad because it does not serve a significant governmental interest, is not narrowly drawn, and impermissibly restricts student expression.
76. The policies restricting speech on campus burden far more speech than is necessary to serve the asserted interest. Rather than being narrowly tailored to protect speech as the Constitution requires, the College policies are tailored to preclude speech. Among other, less speech-restrictive alternatives, the College could enforce rules against those who actually disrupt traffic and/or educational activities or who engage in disorderly conduct.
77. As a direct result of the Defendants’ continued maintenance of District Policy 3900 and the College Guidelines, students at the College are deprived of their right to free speech under the First and Fourteenth Amendments to the Constitution.
78. As a legal consequence of the Defendants’ violation of Plaintiff’s and other similarly situated students’ First and Fourteenth Amendment rights, as alleged above, Plaintiff is entitled to injunctive relief, and the reasonable costs of this lawsuit, including his reasonable attorneys’ fees.
FIFTH CAUSE OF ACTION Facial Challenge to Violation of Right to Free Speech Under the Plaintiff’s First and Fourteenth Amendments Rights (42 U.S.C. § 1983) – Vagueness
79. Plaintiff repeats and realleges each of the foregoing allegations in this Complaint.
80. A state enactment is void for vagueness if the prohibitive terms are not clearly defined such that a person or ordinary intelligence can readily identify the applicable standard for inclusion and exclusion. Grayned v. City of Rockford , 408 U.S. 104, 108 (1972).
81. Defendants’ policies restricting speech fail to adequately advise the students subject to discipline under them of the obligations the policies create, and are unconstitutionally vague on their face in violation of the First Amendment and of the due process guarantee of the Fourteenth Amendment to the U.S. Constitution.
82. Defendants’ policies do not provide standards to guide the discretion of public officials at the College as to whether the College Guidelines apply to particular acts of free expression in the first instance, or for reviewing requests to use “free speech areas,” or for evaluating requests for additional time beyond the eight hours of free expression allotted to each student per semester. This empowers such public officials to administer the policy on the basis of impermissible factors or through arbitrary application.
83. Because of Defendants’ policies and actions, Plaintiff has suffered, and continues to suffer, economic injury and irreparable harm. Plaintiff is therefore entitled to injunctive relief, and the reasonable costs of this lawsuit, including his reasonable attorneys’ fees.
SIXTH CAUSE OF ACTION Facial Challenge to Violation of the Right to Liberty of Speech Under the California Constitution
84. Plaintiff repeats and realleges each of the foregoing allegations in this Complaint.
85. Under California law applicable to restrictions implicating the Liberty of Speech Clause in the State constitution, for a restriction governing speech in a public forum to survive, the communicative activity must be basically incompatible with the normal activity of that particular place at a particular time. Kuba v. 1-A Agric. Ass’n , 387 F.3d 850, 857 (9th Cir. 2004).
86. The policies and conduct of Defendants restricting all First Amendment protected speech by requiring an advance application to engage in such activity before allowing expressive activities on the College campus grounds is an unconstitutional prior restraint on the Liberty of Speech. This is so because no compelling governmental interest is advanced by the policy, the policy is over-broad, and there are no guidelines for application of the policy by administrators. The policy vests unfettered discretion in Defendants to restrict constitutionally protected expression.
87. The Defendants’ purported “time, place and manner” restrictions are unreasonable in light of the purpose of the forum, are overly broad, and are not narrowly tailored to serve significant government interests nor leave open ample alternative channels of communication.
88. As a proximate result of Defendants’ actions, Plaintiff and other similarly situated students have been and will continue to be irreparably injured in that they have been and will be deprived of their rights under the Liberty of Speech Clause in the California Constitution.
89. As a direct result of the Defendants’ violation of the Plaintiff’s and other similarly situated students’ constitutional rights, and of the continued main- tenance of District Policy 3900 and the College Guidelines, students at the College continue to be prohibited from engaging in constitutional speech activities.
90. As a legal consequence of the Defendants’ violation of Plaintiff’s and other similarly situated students’ Liberty of Speech rights, as alleged above, Plaintiff is entitled to injunctive relief, and the reasonable costs of this lawsuit, including his reasonable attorneys’ fees.