Viewpoints: College protests stepped beyond free speech

Americans protect freedom of speech more vigorously than any other Western democracy. We also have a venerable tradition of respecting academic freedom at colleges and universities.

Sometimes the heat and passion of political protests obscures the essence of these principles, however, as a recent episode at our campus, the University of California, Davis, illustrates. Briefly, protesters repeatedly obstructed access to a bank branch in our student union complex. The bank had leased the space to serve the campus community under an agreement that would have generated $2 million or more to the campus for student services over 10 years. Ultimately, citing the protesters' conduct, the bank closed the branch.

During the course of the blockades, campus police identified 11 students and one faculty member who participated in the obstructive protests. This information was referred to the Yolo County District Attorney; the bank also provided evidence. Today, these individuals are expected to appear in court for arraignment on misdemeanor charges. Under the state penal code, it is a misdemeanor to willfully obstruct public walkways and places or intentionally interfere with a lawful business.

In a letter to the campus administration, the Davis Faculty Association, an organization whose membership comprises a very small fraction of professors at UC Davis, appealed to campus leaders to seek dismissal of these charges because of "the political content of the U.S. Bank blockade." The DFA argued that protesters obstructing access to the bank believed they were defending the UC system against privatization, and thus should not be subject to criminal sanction.

That even a few faculty members at one of the nation's top universities would misunderstand the basics of freedom of speech and academic freedom in this way suggests the need to use this episode as a "teachable moment."

The important starting point in our First Amendment analysis is that a blockade is not constitutionally protected speech. It is conduct that government has always had the legitimate authority to proscribe because it so obviously obstructs the liberty and lawful pursuits of others.

To cite just one example, the federal Freedom of Access to Clinic Entrances Act, which prohibits anyone from physically obstructing access to reproductive health services, has been upheld repeatedly against constitutional challenge.

One critical reason blockades can be prohibited is that they are employed to coerce behavior, not change minds. They are thus antithetical to the values on which freedom of speech and academic freedom are grounded a commitment to the power of ideas rather than the use of force to change the way that people act.

Indeed, if obstruction or disruption were protected expressive activity, it could be used to silence other speakers. The California Supreme Court explained the problem in an important free speech case, In Re Kay: "(T)he state retains a legitimate concern in ensuring that some individuals' unruly assertion of their rights of free expression does not imperil other citizen's rights of free association and discussion. Freedom of everyone to talk at once can destroy the right of anyone effectively to talk at all."

The argument that a public university should pick and choose whether obstruction should be permitted or not based on the political content of any particular blockade is also a dubious proposition. Treating one political topic or perspective more favorably than another constitutes subject-matter or viewpoint discrimination which almost always violates the First Amendment. Moreover, a university engaging in such discrimination demonstrates that it is no longer committed to open inquiry and the free exchange of ideas. The university instead morphs into a political institution committed to particular perspectives so much so that it excuses violations of law in support of its own political positions.

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Viewpoints: College protests stepped beyond free speech