THE POSITION OF THE FREE SPEECH MOVEMENT ON SPEECH AND POLITICAL
The following statement sets out and
explains the position of the Free Speech Movement on the rights of speech and advocacy.
The statement is divided into three parts: (1) Regulation of Advocacy Under the First
Amendment; (2) Impropriety of Nonjudicial Forums for Punishing Political Activity; and (3)
On-Campus Regulation of the Form of Free Expression.
The constitutional questions involved in
regulating advocacy have been discussed informally with Berkeley Albany American Civil
Liberties Union representatives, and the FSM position is consistent with that of a
detailed formal statement issued by the Berkeley-Albany ACLU. In this connection, Mr.
Ernest Besig, Executive Director of the Northern California Branch of the ACLU, will be
pleased to discuss the ACLU position in further detail with the reader of this statement.
1. Regulation of Advocacy Under the First Amendment
Civil liberties and political freedoms
which are constitutionally protected off campus must be equally protected on campus for
all persons. Similarly, illegal speech or conduct should receive no greater protection on
campus than off campus. The Administration. like other agency of government, may not
regulate the content of speech and political conduct. Regulations governing the time,
place and manner of exercising constitutional rights are necessary for the maintenance and
proper operation of University functions, but they must not interfere with the opportunity
to speak or the content of speech.
In contrast, the University regulations
adopted by the Regents on November 20, 1964 and interpreted by the Chancellor, read as
"The Regents adopt the policy . . . that certain campus
facilities carefully selected and properly regulated, may be used by students and staff
for planning, implementing, raising funds or recruiting participants for lawful off-campus
action, not for unlawful off campus action."
By making the distinction between
advocating "lawful" and "unlawful" action, the Regents propose to
regulate the content of speech on campus. It is this distinction that is at the heart of
FSM opposition to these regulations. The U.S. Supreme Court has made clear that advocacy
of unlawful conduct cannot constitutionally be punished -- even in the courts -- so long
as the advocacy will not clearly and presently cause some substantial evil that is itself
2. Impropriety of Nonjudicial Forums for Punishing
Under the November 20th regulations, if
the Chancellor accuses a student of advocating an unlawful act, the student and his
sponsoring organization are liable to punishment by the University. A student so accused
may appear before the Faculty Committee on Student Conduct, whose members are appointed by
the Chancellor, and whose opinions are only advisory to him.
The Free Speech Movement considers this to
be unconstitutional and unwise for the following two reasons.
(1) Since such a procedure allows the
Chancellor to assume the role of prosecutor, judge and jury simultaneously, the students
have no confidence that the final verdict will be fair. In fact, the history of the
treatment of civil liberties cases by the campus administration reveals an insensitivity
to safeguarding such liberties.
Further, the fact that the Administration
is peculiarly vulnerable to pressures originating outside the University should remove it
from consideration as the proper authority for determining guilt or innocence in the
extremely sensitive area of speech, assembly and protest within the First Amendment. It
must be emphasized that the current crisis has not developed in a vacuum. These rules work
a grave hardship on the civil-rights movement in Northern California. Organizations in
this movement rely heavily on negotiations, demonstrations. picketing and other such legal
tactics. It is true, however, that in order to focus attention on a serious injustice and
to bring pressure to bear for its correction, civil-rights workers sometimes employ
tactics which result in violation of law. Without passing on the propriety of such acts,
the Free Speech Movement insists that the question whether their advocacy is
legal or illegal must be left to the courts, which are institutionally independent of the
shifting pressures of the community. Moreover, the standard that the Chancellor is free to
apply is only one of "responsibility" of the act of advocacy for the act
advocated, which is far more inclusive and vague than the "clear and present
danger" test. Hence, guilt is likely to be found upon much less substantial and
compelling grounds than would be necessary to obtain conviction for illegal advocacy in a
court of law. Students are convinced that the regulations providing for such a hearing are
the direct result of pressures generated by the civil-rights movement in the surrounding
community, and enable the Administration to respond to such pressures by disciplining
student civil-rights workers.
(2) Even if complete mutual trust existed
between the Administration and the student body, and even if the University attempted to
observe the requirements of due process, it would be impossible for it to provide all of
the safeguards of our judicial system, or otherwise to fulfill the functions of a court.
The points in controversy, relating to the degree of responsibility of an act of advocacy
for an act advocated, are of such a delicate and complex nature that even the courts have
not built up wholly adequate precedents. Certainly, then, a nonjudicial body should be
considered incompetent in this area.
On the other hand, the students' position
that the courts alone have jurisdiction does not in any way imply the creation of a haven
for illegal activity on the campus. On the contrary, it involves just the opposite of this
-- the removal of any special protection the University may now afford, as well
as any extra-legal punishment. The student becomes subject to the same process of trial
and punishment for illegal acts that all other citizens must accept.
3. On-Campus Regulation of the Form of Free Expression
The Free Speech Movement recognizes the
necessity for regulations ensuring that political activity and speech do not interfere
with the formal educational functions of the University. Rallies must not be held so as to
disturb classes, block traffic, dam age University property, conflict with other scheduled
public meetings or rallies, etc. Such regulation is purely formal; no discretion to
regulate the content of speech can constitutionally be permitted the controlling
authority. Further, the regulations must be carefully tailored to protect or promote these
State interests without unduly burdening the opportunity to speak, hear, or engage in
political activity on the campus.
At the present time, University
regulations governing the form of expression on the campus are promulgated by the
Administration, while other segments of the University community are limited to a purely
advisory capacity. It is the general position of the Free Speech Movement that those
persons and organizations subject to regulations must have a part in their final
enactment. It is especially important as a safeguard against abuse or factual error that
students share the responsibility for promulgating regulations over the form of speech.
The Administration has demonstrated many times its propensity to plead the necessity to
regulate form as an excuse for regulating content. For example, the Administration has
until recently designated a place removed from the area of normal student traffic as the
sole "Hyde Park area," thus seriously hampering access to listeners. As the
local ACLU has pointed out,
'"a denial of certain avenues of such access (such as the
open areas of the campus) with the claim that there are others, which though perhaps not
as desirable are nonetheless available, will not avoid violation of the First Amendment
unless the government entity . . . can demonstrate that there are no available alternative
means of achieving its purposes, and that the purposes in question are so necessary as to
be, in the language of the Court, 'compelling.'"
Students have thus regarded the designation of such an area as an
unreasonable and unconstitutional restriction and refused to accede to it.
Because of such past experience, and
because of the important principle of democratic self-government involved, the Free Speech
Movement has taken the position that final regulation of the form of exercise of speech
should be by a tripartite committee, consisting of representatives chosen independently by
the students, faculty and administration.