Free Speech is a Hallmark of “Civil” Society: UC Davis New Expression Policy Looks Promising

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December 2, 2014

By Yaman Salahi, Staff Attorney National Security & Civil Rights 

When politicians or powerful interests slander critics of government policies with crude epithets like “anti-American” or “pro-terrorist,” it can be much harder for folks to summon the courage to speak up. For years, the Asian Law Caucus has received complaints from students and academics describing illegitimate forms of backlash from university administrators, government agencies, and private parties after lawfully expressing their personal, political, or scholarly opinions. This fear is amplified given widespread concerns about pervasive and overbroad surveillance programs. The resulting chill on civic engagement by Arab, Middle Eastern, Muslim, and South Asian (AMEMSA) communities has prompted the Asian Law Caucus to adopt freedom of expression in higher education as a priority civil rights area in the post-9/11 era.

History has shown that a climate in which dissent or other lawful expression is framed as potentially disloyal or as a basis for government surveillance or investigation inevitably sends the message that those who want to play it safe should refrain from commenting on political or social issues. Such a chilling effect is as detrimental to democratic values as outright censorship, and is often harder to undo. And it is disproportionately harmful to AMEMSA communities who bear the brunt of post-9/11 policies yet have important personal stories, family histories, and other narratives to share.

So when the Caucus learned UC Davis was drafting a new Freedom of Expression policy in response to a lawsuit by the ACLU of Northern California about the infamous 2011 pepper-spray incident, we sought to ensure it was as protective and friendly as possible of student expressive activities, especially those about important political debates of our time.

In October 2013, the UC Davis Blue Ribbon Committee, tasked with formulating the policy, solicited public comment on a draft policy. Unfortunately, the proposed policy fell far short and was quickly criticized by the ACLU. The Caucus also sent a letter expressing concern, which was co-signed by the Center for Constitutional Rights, the Council on American-Islamic Relations-California, and the National Lawyers Guild Northern California chapter. Fortunately, the UC Davis Committee took the concerns of civil rights groups seriously and re-drafted its policy, formally adopting it at the end of August 2014.

The Caucus’ letter asked for a number of revisions, all of which have been addressed in the final policy. For example, we asked for more protections of student political speech given recent efforts in the UC system to stifle expression related to Israel and Palestine, like the 2012 UC Campus Climate Report and California House Resolution 35. We recommended UC Davis explicitly recognize that expression “concerning the activities or policies of the University of California, local, state, federal, and foreign governments” is entitled to protection. UC Davis’ policy now states:

All members of the University community have the right to express and debate their views, to voice criticism of existing practices and policies, and to protest against laws, policies, actions, and opinions with which they disagree.

We also urged UC Davis to remove language in its draft proposal suggesting students could be punished for failing “to maintain civility at all times.” Although as a norm “civility” sounds agreeable, it raises the question: who decides what is civil? Too often, the norm is invoked by those in power to silence those with whom they disagree, as the Caucus recently noted in a letter sent to over 220 university administrators.

As professors at Ohio University recently argued, policing “uncivil” expression is undesirable for another reason—some situations call for creative modes of expression: “Dramatic nonviolent actions – draft-card burnings, lunch-counter sit-ins, and even self-immolations – capture public attention and spark reactions in an effort to create public debate and social change.” Sometimes, a polite speech or e-mail simply does not rise to the occasion. Advocates and theorists have consistently argued that the freedom to speak one’s mind is one of the hallmarks of a truly “civil” society. UC Davis’ revised policy acknowledges these lessons and clarifies that civility is simply an “aspiration,” and that speech considered by some to be offensive or uncivil is “not a lawful basis for limiting speech.”

Finally, our letter raised concerns about vague language in the draft policy stating the University would “provide reasonable protection for individuals who otherwise may be involuntary audiences.” We were concerned this language implied that a speaker could be silenced, irrespective of context, because some listeners might not want to hear the message. This provision was completely removed from the new policy.

In all, students at UC Davis have reason to be optimistic about the new policy. Let’s hope UC Davis administrators will use it to vigorously defend students and faculty from ongoing attempts to silence their expression. Ultimately, UC Davis’ practices, not policies, will set the tone for free speech on campus.

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