Jeff Sessions pushes back on free-speech limits
The previous week, however, Pierce student Kevin Shaw set up a table along the college’s “mall” and handed out Spanish-language copies of the U.S. Constitution and tried to recruit members for the local Students for Liberty chapter, a libertarian-oriented group.
By all accounts, Shaw’s efforts were respectful, not disruptive, and didn’t impede foot traffic along the campus’s main thoroughfare. It, too, is what students often do and was in perfect keeping with the individual rights enumerated in the document Shaw was handing out. Yet, according to a legal complaint that Shaw has filed, a college administrator told him he wasn’t allowed to do this unless he completed a permit application. He would be asked to leave the campus if he didn’t comply.
Like many publicly funded college campuses in California and elsewhere, Pierce reserves such activities to a “free speech” zone, and requires approval to speak out even within that limited area. Pierce has a 426-acre campus, but limits free speech to a 616 square-foot area. According to the Foundation for Individual Rights in Education (FIRE), which represents Shaw in the lawsuit, “If Pierce College were the size of a tennis court, the area where students are allowed to exercise their constitutional rights would be smaller than a standard iPhone.”
Welcome to modern academia, where even the most fundamental American rights have become mere suggestions. The Los Angeles Community College District’s free-speech policy notes that its colleges are considered nonpublic forums that are not necessarily open to free expression. Individual campuses, at the discretion of the president, may include specific speech zones and impose myriad restrictions on their use. Petitions and literature may only be handed out in those zones.
A college spokesperson told the Los Angeles Daily News, “We are fully committed to free expression on our campuses. As a community college district, promoting the free exchange of ideas and knowledge is at the core of what we do, every day.”
But given the reality of the speech zone, this is a proper time to use the term Orwellian.
This legal dispute has received significant media attention this week after the U.S. Justice Department filed a compelling “statement of interest” supporting Shaw’s First Amendment claims. It’s ironic that the Trump administration, which so many Pierce students apparently view as an assault on Western civilization, is standing up for their rights to engage in the kind of peaceful protest and political organizing that, as Americans, we have long taken for granted.
“The United States has a significant interest in the vigilant protection of constitutional freedoms in institutions of higher learning,” the Justice Department’s statement explained. “In recent years, however, many institutions of higher education have failed to answer the call, and free speech has come under attack on campuses across the country. Such failure is of grave concern because freedom of expression is ‘vital’ on campuses.” That’s right on point.
The department noted that colleges are, of course, free to regulate some campus speech. It’s not really a tough needle to thread. Obviously, no one has a right to bring a bullhorn to a classroom setting — and large protests and marches can be limited in a content-neutral manner to avoid traffic problems and to deal with legitimate security issues.
I find the college district’s speech-zone approach to be particularly appalling. In what world is limiting free speech to 0.003 percent of a campus anything other than the negation of speech — especially since a permit is needed even in that tiny location? The college gives administrators vast authority to approve or deny the permit request. Getting permission to hand out literature, and then being banished to a postage-stamp-sized lot in the hinterlands isn’t exactly what our founders were envisioning when they drafted the First Amendment.
This case, which goes to court Nov. 14, appears to be a no-brainer. I’m encouraged by the Justice Department’s intervention for a couple of reasons. This is indeed a legitimate federal issue given the constitutional ramifications of the arguments. These colleges receive public funding, and it’s bizarre that anyone could have considered a speech zone an appropriate way to accommodate a fundamental aspect of college life. It’s about time that federal authorities took a look at this kind of thing, especially in the current PC college environment.
But I’m also encouraged to see the Jeff-Sessions-led department take such a strong stance on an issue involving basic liberties. The Trump administration has a spotty approach on such matters to date. For instance, Sessions has eroded previous limits on civil asset forfeiture — the process by which police agencies seize private property from people who have not been convicted or even accused of a crime. It’s a troubling constitutional erosion.
In a rare fit of good sense, and with overwhelming Republican support, the California Legislature and Gov. Jerry Brown last year passed a new law that largely requires a conviction before a property seizure. It also limited the use of “equitable sharing agreements,” by which the locals would partner with the feds to get around tougher state standards. Under those agreements, federal and local agencies would split the proceeds from the confiscated loot. Sessions has undermined a modest Obama administration reform that put limits on the practice.
No one minds when police agencies take the ill-gotten gains of drug dealers, but the process has been used mainly to bolster government budgets — and many of its victims are not drug dealers or wrongdoers. I reported on a case in Anaheim, where the feds tried to seize a $1.5-million commercial building after one of the owner’s tenants was accused of improperly selling $37 in marijuana to an undercover officer. The case was dropped after bad publicity, but conservatives should understand the problems with such government seizures.
It’s a clear constitutional problem. The Fourth Amendment upholds “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Due process and probable cause, like free speech, are at the heart of the Constitution.
The Sessions Justice Department hasn’t been a friend to the 10th Amendment, either, which reserves most powers to the states or the People. In particular, his department has announced a renewed drug war that targets states such as California that have long legalized medical — and now recreational — uses of marijuana. It was the drug war, in fact, that led to the asset-forfeiture scam, and also has eroded other American liberties.
But the department’s stance on the First Amendment (and the Second Amendment, too) is a welcome change from the politically correct approach of the previous administration, which turned a blind eye to the myriad constitutional abuses on college campuses and even encouraged them to adopt speech codes. The Pierce College situation has become far too emblematic of our nation — as constitutional rights get relegated to tinier slivers of our land. It’s nice to see a little pushback on this one.
Image by mark reinstein