WEBVTT - DOJ Takes on Campus Free Speech Case (Audio)

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<v Speaker 1>Kevin Shaw was handing out Spanish language copies of the

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<v Speaker 1>Constitution at Pierce College in Los Angeles when a university

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<v Speaker 1>official told him he had to stop. I should have

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<v Speaker 1>said a college official. That's a community college. Shaw, it seems,

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<v Speaker 1>was outside the school's designated free speech zone, a space

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<v Speaker 1>about the size of three parking spaces on the fo

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<v Speaker 1>Acre campus. School. School policy says people looking to distribute

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<v Speaker 1>material or obtain signatures must get a permit, must stay

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<v Speaker 1>within the free speech zone, and must do the work

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<v Speaker 1>between nine am and seven pm. Shaw, who's the president

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<v Speaker 1>of a libertarian student group, sued and now he has

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<v Speaker 1>a powerful ally. The Trump administration this week filed papers

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<v Speaker 1>supporting Shaw and saying the policy is unconstitutional. With us

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<v Speaker 1>to talk about the case is enriqi ar Mijo. He's

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<v Speaker 1>a professor at Elon University Law School in North Carolina. Enrique,

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<v Speaker 1>thanks for joining us. Let's start with that. The papers

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<v Speaker 1>filed by the administration. UH just this week. What's the

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<v Speaker 1>argument that the Justice Department department is making for why

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<v Speaker 1>this policy is unconstitutional? Well, Attorney General Sessions kind of

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<v Speaker 1>forecasted the Justice Apartment's involvement in this case a few

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<v Speaker 1>weeks back when he gave a speech at Georgetown University

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<v Speaker 1>talking about the what he viewed and by extension with

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<v Speaker 1>the Dustic Department, views as unconstitutional free speech zones on

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<v Speaker 1>public college campuses. The basic argument is that setting out

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<v Speaker 1>a space within the campus where students can speak violates

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<v Speaker 1>the First Amendment right of those students, Enrique, Have courts

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<v Speaker 1>in the past ruled on these free speech zones and

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<v Speaker 1>whether or not they are violations of the First Amendment

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<v Speaker 1>that they have? There are a few cases on free

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<v Speaker 1>speech zones, and unlike in a lot of other areas

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<v Speaker 1>of free speech law, Um, the students here have an

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<v Speaker 1>unblemished record. I believe every federal court to look at

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<v Speaker 1>a free speech zone at a public university has found

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<v Speaker 1>it to be unconstitutional and just really based on this

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<v Speaker 1>basic idea that the whole point of the university is

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<v Speaker 1>to expose students to different perspectives and and it violates

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<v Speaker 1>the First Amendment rights of student speakers to kind of limit, um,

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<v Speaker 1>when they can say what they want to say. Well, Enrique,

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<v Speaker 1>what's the best argument that that a college or university

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<v Speaker 1>can make in defense of a policy like this? Well, Um,

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<v Speaker 1>there are many good ones. Uh, the school. Certainly at

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<v Speaker 1>the K through twelve level, public schools have been successful

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<v Speaker 1>in arguing that UM the restriction of speakers doesn't violate

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<v Speaker 1>the First Amendment on the ground that that speaker or

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<v Speaker 1>that speech raises some kind of UM material disturbance with

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<v Speaker 1>respect to the educational function of the school. So a

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<v Speaker 1>student can stand in the middle of an algebra test

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<v Speaker 1>and say, uh, I prost test algebra. I think it's wrong,

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<v Speaker 1>or I think it's bad, or I think we should

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<v Speaker 1>be learning something else. But but those are the kind

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<v Speaker 1>of disruptions that really go to the actual day to

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<v Speaker 1>day teaching and operation of the university. Free speech zones

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<v Speaker 1>courts of uniformly found are not that kind of disruption

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<v Speaker 1>where where the court will accept interference with students speech

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<v Speaker 1>in this way. There seems to be a trend. Lawmakers

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<v Speaker 1>in Colorado and Utah have approved bills that ban free

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<v Speaker 1>speech zones. Do you see a trend in across the

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<v Speaker 1>nation in in banning the zones and expanding UM protections

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<v Speaker 1>for free speech on public campuses. I do, and I

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<v Speaker 1>think that's a good thing, and it really is kind

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<v Speaker 1>of in a larger context of some things that have

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<v Speaker 1>happened UM at Berkeley, and it's some other schools where

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<v Speaker 1>it's kind of a very much a hot topic on

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<v Speaker 1>college campuses right now, the idea that campuses should not

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<v Speaker 1>discriminate UM with respect to who student groups bring on

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<v Speaker 1>campus and how the speakers are treated. Uh. In my view,

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<v Speaker 1>this is a very positive thing for the First Amendment because,

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<v Speaker 1>after all, as I said, and as the cases have said,

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<v Speaker 1>the whole point of college is to really exposed students

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<v Speaker 1>to different perspectives and and and and the college administrators

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<v Speaker 1>and community college administrators should really see that as as

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<v Speaker 1>their primary goal here. All right, let me try to

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<v Speaker 1>give my best defense of this policy. Um. So, Uh,

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<v Speaker 1>the government does have the ability to to regulate the time, place,

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<v Speaker 1>and manner of speech. And even though this areel on

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<v Speaker 1>this campus is both very small and designated as a

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<v Speaker 1>free speech zone, it doesn't mean you can't speak other places.

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<v Speaker 1>It just means that you can't distribute things everywhere on campus,

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<v Speaker 1>and it means you can't obtain signatures everywhere on campus.

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<v Speaker 1>So why isn't there at least an argument that this

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<v Speaker 1>is just a time, place, and manner restriction. Well, the

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<v Speaker 1>doctrine of time, place, and manner, which as you say,

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<v Speaker 1>is really aimed not just um not at speech, but

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<v Speaker 1>in the form that that speech takes, so that the

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<v Speaker 1>argument there is as you said, Uh, it's okay to

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<v Speaker 1>pass um bands on leafleting because the concern there is litter,

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<v Speaker 1>not what's in the leaflet. Well, I think those arguments

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<v Speaker 1>tend to fall apart um in in college environments of

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<v Speaker 1>open campuses, where students are interacting on a range of

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<v Speaker 1>other issues and talking about all kinds of other things

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<v Speaker 1>as well. And and when, of course look at these things,

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<v Speaker 1>they actually start um with the whole idea of a

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<v Speaker 1>free speech zone. And and federal courts have often said, um,

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<v Speaker 1>does that not necessarily, by implication mean that the rest

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<v Speaker 1>of the campus is an unfree speech zone? Uh? And

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<v Speaker 1>and and once the once an opinion kind of starts

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<v Speaker 1>like that, you know that the that the restriction in

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<v Speaker 1>question is doomed to fail. Enrique. And in some of

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<v Speaker 1>the cases earlier in the year, there were invitations to

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<v Speaker 1>controversial speakers and the schools wanted to limit the appearance

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<v Speaker 1>to certain places because they feared there might be some

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<v Speaker 1>violence in that area. Is the school in the have

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<v Speaker 1>a better case or are they in the right very much. So,

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<v Speaker 1>I mean for for for the Attorney General to get

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<v Speaker 1>involved in this particular cases is honestly a bit of

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<v Speaker 1>a lay up. I mean, the the speech at Georgetown

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<v Speaker 1>talked about a lot of things. Student didn't just talk about,

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<v Speaker 1>UH this free free free speech zones had talked about

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<v Speaker 1>the the incidents that you're referencing, the free speech week

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<v Speaker 1>at Berkeley and some of these much more contentious issues

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<v Speaker 1>uh where where where speakers have been invited by uh

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<v Speaker 1>student groups and have been shouted down, and they've been protests,

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<v Speaker 1>and some of those protests have turned violent. UM and

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<v Speaker 1>and university administrators are in a very tricky position. They

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<v Speaker 1>have very limited resources. So some of them, you know,

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<v Speaker 1>some of the bigger schools can say, okay, we can

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<v Speaker 1>handle um several hundreds and dollars worth of security to

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<v Speaker 1>basically secure the speaker and the people who want to

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<v Speaker 1>listen to speakers right to speak. But it gets a

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<v Speaker 1>lot more difficult when you have smaller campuses, smaller public campuses,

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<v Speaker 1>who bring on speakers who are controversial and who tend

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<v Speaker 1>to elicit kind of very very adverse reactions and sometimes violence.

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<v Speaker 1>And I think what school administrators are finding is they're

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<v Speaker 1>being critiqued for it. But if they very narrowly um

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<v Speaker 1>state that the reason for kind of provoking an invitation

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<v Speaker 1>is not because of what the speaker is going to say,

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<v Speaker 1>or not even really because the speaker is controversial, but

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<v Speaker 1>because we are not equipped to keep our students safe

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<v Speaker 1>in the event of violent protests, then the First Amendment

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<v Speaker 1>question has become a lot more complicated. And I would

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<v Speaker 1>actually be surprised if the Trump administration got involved in

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<v Speaker 1>one of those cases. Despite what the Attorney General said

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<v Speaker 1>at Georgetown, We're gonna have to leave it there. I

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<v Speaker 1>want to thank our guest, Enrique Ramiko, professor at Elon

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<v Speaker 1>University School of Law. That's it for this edition of

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<v Speaker 1>Bloomberg Law. We'll be back tomorrow. Thanks to our technical

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<v Speaker 1>director Chris try Comy and our producer David Sutterman. You

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