Commentary: UC Davis’ Protest Policy Probably Won’t Work

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One of the more heated discussions has been how to allow free speech on campus in the face of pushback against mostly conservative speakers.  The issue naturally began at UC Davis when campus officials urged Milo Yiannopoulos to cancel his January speech in light of safety concerns and protests blocking access to the venue facility.

The problem has continued with incidents at Berkeley that led to Mr. Yiannopoulos and later conservative commentator Ann Coulter to cancel their events.

The Vanguard has long been a champion of free speech, believing that the appropriate remedy for objectionable speech is vigorous debate, or in some cases denying the agitators a platform for their views by simply ignoring them.

However, other groups have seen themselves, particularly in the Trump era, as being marginalized and therefore vulnerable to hate speech.  We have seen in recent months an increase in hate crime violence toward groups like the Muslims and concerns about safety arising out of those upticks.

UC Davis put together a working group on the topic comprised of faculty, staff and students.

“Our obligation to uphold First Amendment freedoms is essential in our democracy and on our campus,” UC Davis Interim Chancellor Ralph J. Hexter said. “While all expression is subject to time, place and manner restrictions, it cannot include silencing or blocking speakers, even if we disagree with what is being said. I appreciate the commitment demonstrated by the working group to gather feedback from a wide range of our campus community.”

But some in the working group apparently disagree with the plan.  And others have argued that the “freedom of expression” policy itself focuses on “limiting and punishing the free speech of protesters.”  They see it as an extension of the university which pepper sprayed seated protests and view this as “authoritarian crack down” that “should be fought tooth and nail.”

The report points out that there is a recurring problem which “on the UC Davis and other university campuses has been that some groups have sought to silence speech of those with whom they disagree.”  They see this as adversely impacting “the First Amendment rights of speakers and those who desire to hear their speech.”

Moreover, they found, “The campus lacks a clear rule for disciplining students who disrupt the speech of others on campus. There currently is little, or no, disciplining of students who disrupt the speech of others.”

One of the big problems here, as the working group acknowledges, is that “some of the protesters at campus events are not students and are not subject to student discipline.”  There they suggest “criminal activity by students and community members can be the subject of police action.”

While perhaps well-intentioned, the notion that protests and protesters would be subject to both disciplinary and criminal punishment might itself be seen as curtailing freedom of speech.

The biggest of the recommendations is: “The campus should authorize the imposition of discipline for the disruption of campus events and invited speakers.”

This is the problem: “The determination of what constitutes disruption may be fact-specific and contextual in some cases and require the exercise of official discretion, the campus should clearly delineate disruptive behavior it deems presumptively unacceptable and provide clear notice to students engaging in such behavior that their conduct warrants a disciplinary response. Consistent with privacy protections, the enforcement of anti-disruption regulations should be publicized to the campus community.”

Based on this, I see three clear problems in the implementation.

First, any policy that is heavily caveated by “fact-specific” and “contextual” is going to immediately run into problems.  Look, there are clear-cut situations where the behavior is obviously unlawful, but we already have tools to deal with clearly unlawful behavior.

The grayer areas are where we should be more concerned about the policy implications – does merely have a large group of protesters and a potential fear of violence, but no actual violence that ends up shutting down a speaker, trigger this?

Moreover, there are some real enforcement problems here.

The second problem relates to the issue of non-students.  The campus might be able to impose discipline for students, but certainly not for non-students.  For instance, the problems that occurred at Berkeley in February had to do with Black Bloc and Antifa, non-student groups who arrived wearing black masks with the intent to disrupt and shutdown the event.

As UC Berkeley made it clear in a statement, “The violence was instigated by a group of about 150 masked agitators who came onto campus and interrupted an otherwise non-violent protest.”

The UC Davis policy would be useless in that case.

That leads us to the third problem – identification.  Basically, UC Davis has taken a non-confrontational approach to protesting ever since the pepper spray incident exploded on them.

When protesters blocked the US Bank in the Memorial Union, the police did not intervene – much to the chagrin of the bank.  They eventually documented crimes and turned over the case to the district attorney’s office.

Given that many people will wear masks and conceal their identity, unless UC Davis is determined to actually confront large groups of people and arrest them – this policy is difficult to implement.

Some have scoffed at the notion that UC Davis would discipline protesters – but history suggests otherwise.  When the bank blocking occurred, the students involved faced not only legal action that was turned over from the university to the DA’s office but also academic action – many faced suspension or expulsion.

Some were placed on probation, which effectively ended their ability to continue protesting.

The university’s policy is unlikely to have much impact on protests – although it does have a potential chilling effect on counter-protesters if they start cracking down on them.

However, for it to have any chance of succeeding the university would have to completely change how it engages student protesters with law enforcement.  Given the history of the pepper spray incident looming over them, the chances are that this ends up just a paper policy that they might use to hold over the heads of some students who get caught up in their snare net.

Bottom line, while it is understandable that student protest groups and activists will be nervous, it seems more likely than not that the policy simply is unenforceable and will not work.

—David M. Greenwald reporting



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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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30 thoughts on “Commentary: UC Davis’ Protest Policy Probably Won’t Work”

  1. Keith O

    While perhaps well-intentioned the notion that protests and protesters would be subject to both disciplinary and criminal punishment might itself be seen as curtailing freedom of speech.

    How so if they protest peacefully?  If they are blocking access to an event, causing physical harm or destroying property than they should face disciplinary and criminal punishment.

      1. Keith O

        Please explain dude.  Like I stated, if protesters are peacefully protesting there’s no problem, but if violence or blocking access to an event occurs then disciplinary action is warranted.

        1. Todd Edelman

          Aside from marching, blocking access has been a principal – if not the most common – tactic of non-violent peaceful protest. Moreover “violence” is subjective and qualitative, and “blocking access” describes an activity. You want everyone to just march in circles around Central Park? You think that that’ll be enough to keep your precious under-priced, non-sustainable, anti-children automotive entitlements? Good luck.

    1. David Greenwald Post author

      Blocking access isn’t necessarily criminal. But you still have the problem regardless that the policy is vague and nuanced.

      1. Keith O

        If a person or a group blocks someone’s access to a building or an event it’s not criminal?

        Well not according to the ACLU.

         

        Do counter-demonstrators have free speech rights?

        Yes. Although counter-demonstrators should not be allowed to physically disrupt the event they are protesting, they do have the right to be present and to voice their displeasure.

        picketing must be done in an orderly, non-disruptive fashion so that pedestrians can pass by and entrances to buildings are not blocked. 

        https://www.aclu.org/sites/default/files/field_pdf_file/kyr_protests.pdf

        1. David Greenwald

          You’re missing part of my point – there are degrees of interference and do you really want the university to have to weigh the various factors?

          And second – and this has not been addressed – are the university police going to change their tactical approach during protests, because if they don’t, the policy doesn’t matter.

        2. Keith O

          I agree, the laws and UCD’s free speech policies have to be enforced or we’ll just keep experiencing more of the same, leftist radical students and outside anarchists shutting down conservative free speech.

  2. Keith O

    We have seen in recent months an increase in hate crime violence towards groups like the Muslims and concerns about safety arising out of those upticks.

    Not to mention the hate speech coming from the left and the resulting hate crime where a Bernie Sanders supporter sought out Republicans to shoot them.

        1. Todd Edelman

          Your false equivalency shoots so high into the atmosphere that the scant oxygen permitted only a chuckle. There is “free” parking at the library. Go do some research. OK, here’s my offer: Stop being anonymous and I will try to explain patiently — otherwise your anti-truths don’t deserve any respect.

        2. Keith O

          Not a false equivalency at all.  David mentioned that in the Trump era people are feeling marginalized and I just pointed out that it works both ways.  The hate rhetoric coming from the left in the aftermath of the election has led a Sander’s supporter to do a hate crime.

    1. Eric Gelber

      I take it from your logic that you are now suggesting that the rhetoric of the right is responsible for every hate crime against Muslims, Jews, blacks, Democrats (e.g., Gabby Giffords), LGBT, etc.

        1. Keith O

          No it isn’t, it’s in response to Eric Gelber in which you let his comment stand.

          You just don’t like the content of the link I posted is all because it makes your party look bad.

        2. David Greenwald

          Both are off-topic frankly.  The topic of this article is free speech and protest rules at UC Davis, not which side made the stupidest comments in the national context.

        3. Keith O

          Was just showing the that the rhetoric coming from the left has made some conservatives vulnerable in response to your:

          However, other groups have seen themselves, particularly in the Trump era, as being marginalized and therefore vulnerable to hate speech.  We have seen in recent months an increase in hate crime violence toward groups like the Muslims and concerns about safety arising out of those upticks.

           

        4. Keith O

          And conservatives, people who aren’t protesting free speech, feel vulnerable in the current climate too. There are incidents and hateful statements to prove they’re right.

          The people who are protesting shouldn’t feel vulnerable as long as they don’t break the law. Protest peacefully and you have nothing to fear.

  3. Keith O

    One thing I think we can all agree on.  If it were a group of conservatives shutting down leftist speakers at UCD because they considered it hate speech the outcry and uproar from this community would be enormous.   In my opinion David’s articles would be much more vehement that it needed to stop.  Right now it seems like everyone is just giving this a little lip service because it’s not someone on their side of the political spectrum being denied free speech.

    1. David Greenwald

      Ok.  You’re acting like this is some sort of big revelation.  I support the right to free speech – on both sides.  I see some dangers in this policy from the perspective of the protesters.  And I see a lot of problems trying to implement from the perspective of the speakers.  So what good does this policy do?

  4. Robin W.

    David — The article posted yesterday stated guidelines and called for policies to be drafted.  Since those policies have not yet been drafted, how can you conclude that they will be too vague to be enforceable?

    As a point of clarification, the problem with suppressing the free speech of others did not start with Milo’s scheduled speech in January, and the problem is not predominantly non-student “outsiders.” UCD has a had a problem for at least ten years of student protesters preventing invited speakers from speaking (and preventing the audience from hearing the invited speakers) by filling the room assigned for the speech and out-shouting the speaker with constant shouts or chants.  I do not know all of the contexts in which this has taken place, but it happens every time an Israeli speaker is invited to speak (about any topic) and every time any speaker is invited who is critical in any way of extreme Islamist politics (e.g., critical of the treatment of women or LGBT people in societies with strict Sharia law).  Frequently campus police are present but take no action whatsoever to quiet or removed the disruptive students who are in the room or to otherwise ensure that the speaker can speak and the audience can hear.

    Time, place and manner restrictions are necessary, as is enforcement of those restrictions and policies regarding discipline of those who willfully violate such restrictions in a manner that is designed to infringe on the free speech rights of the speaker and the audience that wishes to hear the speaker. Kudos to the UCD administration for moving forward with this.

    1. Keith O

      Thanks Robin, well stated.  I agree with everything you wrote.

      David, isn’t what she wrote reasonable or are you more worried about the people who are protesting the events shutting down free speech because they might feel vulnerable in the current political climate?

  5. Dave Hart

    The use of violence, or threat of it, is and indicator of weakness.  People who protest speakers representing the state of Israel are in a position of weakness with respect to the aligned support of the U.S. government with the Israeli government.  Suicide bombers act out of a sense of powerlessness and weakness with nothing left to lose.  Dylan Roof saw himself as besieged by a group of people that he viewed as having an advantage over him.  Trump supporters who sucker-punched protesters in election rallies felt oppressed by the elitist left.

    The University should be in the business of promoting free speech in all its forms including spirited protest.  They need to be very careful in determining when and under what conditions protest crosses the line from protected speech and becomes decidedly more disruptive than supportive of speech.

    I hope the University can frame a policy that is fundamentally in support of free speech, which includes protest, and only secondarily about improper protest activity.  It might help if the University were to be more proactive when controversial speakers are scheduled on campus to work with those groups who feel threatened.  Do they already do this?  Are they supportive of groups who might like to organize a competing teach-in before, during or after an appearance by a controversial speaker?  Teach-ins could be encouraged to cover points made at the “offending” speech thus using free speech to unravel the points made.  The University doesn’t have to do any of the organizing work, but do its best to remove obstacles to make such an event possible with the onus of the work on competing student groups.  Just a thought.

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