Issue 3 (December 2010)

 

American Civil Liberties Union of Northern California

 

November 22, 2010

 

Mitchell J. Celaya III
Chief of Police
UC Berkeley Police Department
1 Sproul Hall
MC #1199
Berkeley, CA 94720-1199


Dear Chief Celaya,

The American Civil Liberties Union of Northern California has learned that the University of California Police Department on the Berkeley Campus is interfering with the constitutionally protected free speech rights of its students and staff. At least one student and one staff member who posted flyers with a photograph of an incident widely reported in the media have been “cited” by UC police, even though they had posted the flyers in areas designated by University policy for notices and announcements. Police apparently asserted that the flyers were “offensive” and “inappropriate.” “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because the society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414 (1989). The constitution requires the University to cease and desist immediately from issuing any “citations” or otherwise taking any action to punish or chill students and staff engaged in protected speech. Training for UC Police on the free speech rights of students and staff is also advisable.

FACTUAL BACKGROUND

Several hundred students and employees protested the most recent fee increase considered by the Regents at the UCSF Mission Bay Campus earlier this week. As reported in the San Francisco Chronicle on November 18, 2010: “One University of California police officer drew his gun . . . .”(1) The Chronicle also published a photograph of the police officer, with a caption that identified him as “University of California police officer Kemper.”(2) Also on November 18, 2010, students and staff posted a flyer on various campus bulletin boards designated for notices and announcements. See Berkeley Campus Regulations Implementing University Policies ¶ 363 (“The general public may post notices or announcements on bulletin boards and kiosks designated for this purpose.”). The flyer had a picture similar to that published by the Chronicle, depicting the same UC police officer with his gun drawn, but not identifying his name. The flyer included the caption “PAY YOUR FEES OR I’LL SHOOT YOU!” and advertised a meeting to be held later that evening. A copy of the flyer is enclosed with this letter.

We have received reports that UC police officers have “cited” students and staff who posted these flyers. In one incident, for example, which occurred at approximately 8:40 am on November 18, 2010, one student and one off-duty staff member were walking on upper Sproul Plaza when they were approached by two UC police officers. They had a box of flyers and had just posted some flyers in areas designated by University policy for posting notices and announcements. See Berkeley Campus Regulations Implementing University Policies ¶ 363. The police officers stopped them, and asked to look at their flyers. The officers asked for identification, wrote down the individuals’ names, and stated that the individuals would be “cited.” The officers did not provide a written citation, but stated that the individuals would be contacted later. One officer mentioned something about an “academic review.”

The officers stated that they had seen the same flyer possessed by these two individuals in non-designated areas of Dwinelle. The student and staff member informed the officers that they had not been in Dwinelle and that they had been flyering in designated areas. The officers then responded that the two would be cited for “association” with a flyer that had been posted in non-designated areas. The police officers also stated that the flyer was “offensive” and “inappropriate.” The officers then “asked” for the remaining flyers and, having been just “cited,” the student and staff member obliged the request of the uniformed officers.

We understand that police officers have also asserted concerns that the flyer jeopardized the safety of the police officer in the picture.

LEGAL ANALYSIS

The First Amendment represents a “profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). Any effort to punish or otherwise chill the efforts of students and staff to post the flyer are intolerable under the First Amendment.

The officers’ citation of the two individuals here for “association” with a flyer that was posted in non-designated areas violates the fundamental tenet of our legal system that prohibits the government from finding us guilty by mere association. Even assuming that posting a flyer in non-designated areas rises to the level of “disorderly conduct” subject to disciplinary action, the officers did not witness the two individuals they cited engaged in any prohibited activity. Indeed, when the officers questioned them about flyers that had been posted in non-designated areas of Dwinelle, the two made clear that they had not been in that building and instead had been flyering in designated areas. As the Supreme Court made clear in the seminal civil rights case NAACP v. Claiborne Hardware Co., “[c]ivil liability may not be imposed merely because an individual belonged to a group, some members of which committed” unlawful acts. 458 U.S. 886, 920 (1982). It is “unconstitutional” for the government to “impos[e] guilt” “by reason of association alone,” and yet that is precisely what the officers did here. Humanitarian Law Project v. Reno, 205 F.3d 1130, 1133 (9th Cir. 2000) (internal quotation marks, citation omitted).

The other asserted grounds for “citing” these two individuals fare no better. We have no doubt that the police officers may have found the flyers “offensive” or “inappropriate.” But “[t]he fact that society may find speech offensive is not a sufficient reason for suppressing it.” FCC v. Pacifica Foundation, 438 U.S. 726, 745-46 (1978). In the tradition of “political cartoons” that “exploit[] . . . politically embarrassing events,” Hustler Magazine v. Falwell, 485 U.S. 46, 54 (1988), the flyer juxtaposes the image of the police officer with gun drawn and a sardonic caption about fee increases, thus setting forth a stinging – but constitutionally protected – criticism of University policy that equates repeated fee increases with heavy-handed police tactics. “The sort of robust political debate encouraged by the First Amendment is bound to produce speech,” like the flyer here, “that is critical of” public officials. Id. at 51.

Nor does the flyer lose its protected status based on purported concerns for the safety of the police officer in the photograph. The flyer cannot plausibly be construed as inciting violence or making a “threat” against the officer. See Brandenburg v. Ohio,395 U.S. 444, 447 (1969) (“the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”); Watts v. United States, 394 U.S. 704, 706, 708 (1969) (criminal defendant’s statement “If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.” was “political hyperbole” and not proscribable threat); Planned Parenthood of Columbia/Willamette, Inc. v. American Coalition of Life Activists, 290 F.3d 1058, 1075 (9th Cir. 2002) (“a threat is ‘an expression of an intention to inflict evil, injury, or damage on another’”).

And it is well-established that speech may not be censored based on mere speculation that others may react disruptively. See, e.g., Cox v. Louisiana, 379 U.S. 536, 550-51 (1965); Ovadal v. City of Madison, 416 F.3d 531, 537 (7th Cir. 2005). It bears emphasis that the photograph in the flyer was very similar to the photograph published by the San Francisco Chronicle, which, unlike the flyer, actually identifies by name the officer who drew his gun. Thus, the flyer did not shatter the anonymity of a previously unknown officer.

* * *

We have grave concerns that the UC Police have “cited” individuals for posting flyers in areas designated by University policy for free speech – apparently because the police officers deemed the content of the flyer embarrassing.(3) “Speech does not lose its protected character . . . simply because it may embarrass others or coerce them into action.” NAACP v. Claiborne Hardware Co., 458 U.S. 886, 910 (1982). Such actions are at odds with well-established constitutional rights, and the University’s proud tradition of promoting robust debate.

Thank you for your attention to this matter. We look forward to your prompt response confirming that police will not attempt to stop the posting of flyers critical of the University or on any other topic deemed by UC Police “offensive” or “inappropriate” on designated kiosks and bulletin boards, and that students and staff who have done so will not face any form of discipline or retaliation. We further believe that in addition to such assurances, something more pro-active is required here. Even if students and staff do not face any discipline, the harm in many ways has already been done because they were deterred from communicating a constitutionally protected message. We therefore believe training for UC Police on the free speech rights of students and staff may be appropriate.

Very truly yours,

 

Linda Lye

Staff Attorney

 

Enclosure

Cc: Chancellor Robert Birgeneau
George Breslauer, Executive Vice Chancellor and Provost
Christopher Patti, Campus Chief Counsel and Associate General Counsel

 

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1. http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2010/11/17/state/n104641S46.DTL

2. http://www.sfgate.com/cgi-bin/object/article?f=/n/a/2010/11/17/state/n104641S46.DTL&object=%2Fc%2Fpictures%2F2010%2F11%2F17%2Fba-REGENTS18_0502576470.jpg

3. While the University may implement content neutral time, place or manner restrictions on speech that are narrowly tailored and make available ample alternatives for communication, see, e.g., Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984), it is not enough that its written policy designating certain billboards and kiosks for public notices be content-neutral. The University must also enforce any such restrictions in a content and viewpoint neutral manner. To the extent UC Police have cited individuals for posting flyers in non-designated areas (and not merely for “association” with unknown others who did), we urge an investigation into whether such enforcement was truly neutral.