A “Policy on Expressive Activity” drafted by CUNY’s central administration in June drew sharp criticism when it became public in October. A newly revised version drops some provisions that had sparked objections, but it leaves the central elements in place.
The proposal would impose “severe restrictions on how the fundamental and distinct freedoms of speech and assembly may be exercised at City University,” said PSC President Barbara Bowen in an October letter to union members, responding to the original draft. “The policy reads as an attempt to silence dissent and to stifle protest before it starts.”
Zoning Free Speech
The Doctoral Student Council warned that that adoption of the proposed rules would “threaten the free expression of ideas” at CUNY, and an online petition against the measure said it “has no business being part of the governing structure of any university.” Outside of CUNY, the head of the University of Chicago’s Center for Law, Philosophy and Human Values dubbed it “constitutionally dubious.”
As currently worded, the policy states that “Members of the University community may not demonstrate…[in] places that have not been designated for demonstrations.” With this rule in place, protest would be prohibited everywhere on campus except in certain designated zones.
Establishment of such “free speech zones” is fiercely opposed by civil libertarians. “As far as I’m concerned, the whole country is a free speech zone,” commented retired steelworker Bill Neel, after he was arrested in 2003 for protesting against President George W. Bush outside of a designated area.
Such restrictions by public universities have often been withdrawn in the face of political opposition or struck down when challenged in court. In 2012, for example, the conservative Foundation for Individual Rights in Education (FIRE) won a permanent injunction against a “free speech zone” policy at the University of Cincinnati. “Federal case law regarding freedom of expression simply does not support the transformation of public institutions of higher education into places where constitutional protections are the exception rather than the rule,” FIRE wrote in 2008 to UC’s then-President, Nancy Zimpher (now chancellor of SUNY).
The original draft of the policy required advance notice to a college’s director of public safety if a protest was expected to involve more than 25 people, or take place within 25 feet of a building entrance, or if organizers want to use amplified sound. The current draft, now titled “Policy on Expressive Conduct,” requires such advance notice only for amplified sound requests.
Demonstrations – of any kind – inside university buildings were completely banned under the proposal’s original terms; it now says simply that “areas designated for demonstrations need not include...areas within the interior of buildings.” A blanket ban on indoor protest can thus still be imposed, but this is now left to the discretion of campus administrators. Faculty or student representatives are given no role in this or other decisions that the policy describes; administration authority on these questions would be absolute.
On distribution of literature, the current draft policy says, “The educational units of CUNY may designate areas in which members of the University community may not distribute materials on campus, such as classrooms that are in use.” Administrators could thus ban handing out leaflets in any class, even when done with the instructor’s consent.
Like demonstrations, literature tables are to be allowed in designated areas only. After thus restricting the space available for tabling, the policy says requests for tabling may be rejected “based on availability of space.” The available spaces are to be given out on a first-come, first-served basis.
The proposed policy no longer includes a blanket prohibition on “overnight camping on University property,” as did the original. But it still gives college presidents or their designees unilateral power to decide if a demonstration is “disruptive” – and if it is, they have an absolute right “to terminate the demonstration” and may call police on campus to do so. Overall, the current version of the draft policy offers fewer specific examples of the kinds of protests that are prohibited. But most of those types of actions – overnight camping, indoor protests, etc. – could still be banned by a college president who was inclined to do so.
Alex Vitale, a sociologist at Brooklyn College who studies the policing of protest, says that the draft policy reflects “a basic misunderstanding of the nature of the right to assembly as distinct from the right to freedom of speech.”
“There are many possible outlets for ideas, including interpersonal speech, published writing and social media,” Vitale noted in a post on the Brooklyn College PSC chapter’s blog. “The right to assemble, however, involves the physical manifestation of people in space as both an exercise in communication and an expression of power. As such, it is inherently disruptive [and] disorderly,” he wrote. “It is understood that public assemblies involve an inconvenience to others.”
“The establishment of restrictive protest zones, and the intent to forcibly terminate protests that threaten to disrupt any aspect of life at the University, are an unreasonable abridgment of the right to assemble,” argues Vitale.
History of Protest
The proposed rules are not expected to come before the trustees until sometime after January 1. So far the administration has not commented on the growing opposition to the proposed regulations, which have not yet been posted on the CUNY website.
“CUNY was founded in 1847 as the result of disruption and dissent; several of its colleges have been saved from closing during fiscal crises because of protest and assembly,” noted Bowen in her letter to union members. “If CUNY is to be an intellectually vibrant university, it must recognize that ‘expressive activity’ is a vital part of campus life, not a danger to be confined to narrow limits.”