DOJ Follows Up on Campus Speech in California Student Suit

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By Melissa Heelan Stanzione

The Justice Department weighed in on another campus free speech lawsuit Oct. 24, this time saying speech policies at a community college in Los Angeles are unconstitutional.

Attorney General Jeff Sessions vowed in September to “help protect” free expression at America’s colleges amid protests this year over certain speakers on some campuses.

Here, the agency issued a statement of interest that said it became involved in Shaw v. Burke because the college’s speech policies violate the First Amendment.

Constitution Distribution

Plaintiff Kevin A. Shaw alleges he and two other students were handing out Spanish-language copies of the U.S. Constitution at Pierce College, a community college in Los Angeles, when a campus employee forced him to stop.

Shaw is president of the school’s chapter of Young Americans for Liberty, a self-described “pro-liberty organization on America’s college campuses.”

The group was formed in 2008 following the failed presidential bid of then-Rep. Ron Paul (R-Texas). During the campaign, Paul, who professed libertarian ideals, inspired grassroots movements on campuses in support of free speech.

Shaw was acting in his capacity as chapter president when he was interrupted.

Stop or Leave

The employee told Shaw that he wasn’t in the designated free-speech zone, for which he needed a permit, and that he would be asked to leave the campus if he continued without one.

The free-speech area comprises a tiny fraction of the campus, according to Shaw’s complaint. Restricting that activity to that area “impermissibly restricts student expression” and doesn’t serve an important governmental interest, Shaw argues.

He says he wants to distribute literature outside the confines of the zone and without having to get a permit, but is afraid of being punished.

The DOJ argues that this “prior restraint"—prohibiting speech before it happens—is present in three aspects of Pierce College’s permitting system.

  •  It gives college administrators unlimited discretion on permitting decisions, which could result in censorship;
  •  It doesn’t differentiate between different sized groups such that small groups of two to three people who pose no threat are included in it; and
  •  It silences spontaneous speech by requiring permit applicants to fill out informational forms before getting a permit.

School Seeks Dismissal

The school has moved to dismiss the case, arguing that the court doesn’t have jurisdiction because Shaw hasn’t alleged how he was injured by the policy.

He hasn’t alleged that “he was subjected to adverse treatment by any college employee, much less threatened with arrest, student discipline, or removal from campus based on his expressive activity,” the motion to dismiss says.

Shaw’s “subjective statements that he is ‘fearful of punishment’” are contradicted by the facts alleged and constitute mere speculation, it says.

The U.S. District Court for the Central District of California is set to hear arguments on the motion Nov. 14.

DOJ’s Earlier Intervention

In the first case where the DOJ interceded in September, Uzuegbunam v. Preczewski, the facts are similar.

Plaintiffs Chike Uzuegbunam and Joseph Bradford, students at Georgia Gwinnett College, sued the school in federal district court in December 2016.

Uzuegbunam says he was prohibited from distributing Christian literature on campus except for certain free speech zones that the complaint says covers a tiny fraction of the campus.

Students have to file a request to use the speech zone at least three days in advance and provide the school with a copy of the literature they wish to distribute.

The school’s policy limiting freedom of expression chills protected speech and disables spontaneous speech, a violation of the First Amendment’s free speech and free exercise of religion clauses, the plaintiffs allege.

To contact the reporter on this story: Melissa Heelan Stanzione in Washington at mstanzione@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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