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VIA EMAIL April 3, 2024

Santa J. Ono, University President

Timothy Lynch, Vice President and General Counsel

3190 Ruthven Building

1109 Geddes Ave.

our serious concern that the proposed policy, as drafted, will impair civil liberties on campus. We

policy or, at the very least, substantially re-write it to better protect First Amendment rights.

As discussed in our December 19, 2023, letter to University officials, universities are the

cradle of our democracy. In fact, courts have recognized that First Amendment concerns are at

their peak in the university setting, where “the State acts against a background and tradition of

thought and experiment that is at the center of our intellectual and philosophic tradition.”

Our principal constitutional concern with the proposed policy is its vagueness and

overbreadth. We do not question the premise that all colleges and universities have a legitimate

interest in minimizing major disruptions to their events and operations so that they may fulfill their

academic mission, and doing so may incidentally regulate, to some extent, the time, place, and

manner that speech and expressive activity on campus may occur. Healy v. James, 408 U.S. 169,

184, 192-93 (1972). However, when a policy that validly restricts some activity also sweeps within

its ambit a substantial amount of protected speech that cannot constitutionally be restricted, the

policy is overbroad in violation of the First Amendment. Ashcroft v. Free Speech Coal., 535 U.S.

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leaving it unclear whether and what speech comes within its coverage and how it will be applied,

Several aspects of the proposed policy stand out as vague, overbroad, or both. Policy

“impede.” The online Cambridge Dictionary defines “impede” as “to slow something down or

prevent an activity from making progress at its previous rate.” It is very common for protests and

University buildings. As a natural and accepted consequence of such gatherings some people will

speaks or holds up a sign in a public place, onlookers may naturally slow down and pause to watch,

listen, or engage—for which neither they nor the speaker should be subject to penalty. See Stahl

v. City of St. Louis, 687 F.3d 1038, 1040-42 (8th Cir. 2012). The Constitution’s broad free-

expression protections accommodate these minor inconveniences and interactions, but the

including but not limited to the communications or activities of

speakers or performers on University Facilities, or of any class,

laboratory, seminar, examination, performance, formal proceeding,

activity in a reserved space, field trip, or other educational, research,

artistic, athletic, medical, operational, or service activity occurring

amplified noises, projecting light or images, or otherwise creating

substantive distractions.

discipline, police enforcement, prosecution, and similar penalties. See Shamloo v. Mississippi State

Bd. of Trs., 620 F.2d 516, 522 (5th Cir. 1980).

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accepted and even embraced in the campus environment but could be regarded by some as

“disruptive” or “distracting.” Additionally, in stating that no person may “disrupt” operations “by

obstructing lines of sight, making loud or amplified noises, projecting light or images, or otherwise

creating substantive distractions,” the proposed policy is unclear as to whether these latter

activities are definitionally what it means to disrupt, or instead that these activities are prohibited

only if they are also disruptive. Either way, the prohibitions sweep or threaten to sweep far beyond

undefined, the proposed policy leaves open the possibility that window signs, bumper stickers,

fall within its scope of prohibited activity.

appears that an entire group of people engaged in some kind of concerted activity, however

innocent, trivial, or innocuous, can be ejected from an event or facility if just one person does

something disruptive, and even if the disruption was not intended and not ongoing. And when

coupled with the proposed policy’s failure to define key terms or set meaningful boundaries, the

lack of an intentionality requirement risks producing even more absurd results. For example, if a

student suffers a visible, yet involuntary health complication in the middle of class, they will

and threatens, through vagueness and overbreadth, to chill the exercise of First Amendment rights

and penalize innocent quotidian conduct.

The proposed policy is imprecise in another way that may lead to First Amendment

protected activity differ depending on the context, nature, and purpose of the location or event, but

the policy fails to reflect that nuance. Courts typically deploy a “forum analysis” for determining

are subject to the highest scrutiny, whereas speech in other forums, like a classroom, can be subject

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appropriately tailored depend on the nature, purpose, and traditional uses of the particular forum

involved. See United States v. Doe, 968 F.2d 86, 88-90 (D.C. Cir. 1992). Thus, the nature and

strength of the University’s interest in preventing “substantive distractions,” as well as the level of

policy, however, appears to apply bluntly and uniformly throughout campus regardless of the

Courts have long recognized that laws and policies that are vague or overbroad in the ways

is constitutionally protected will stay silent rather than speak out of fear that their speech will be

punished. Virginia v. Hicks, 539 U.S. 113, 119 (2003). So, too, with vagueness: A policy’s ill-

clearly marked, inhibiting speech that the First Amendment protects. Baggett v. Bullitt, 377 U.S.

360, 372 (1964).

to self-censor. Thornhill v. Alabama, 310 U.S. 88, 97-98 (1940). The result is a distortion of the

discourse, indirectly dictating which messages on matters of public importance are safe to be

campus is no place for such speech-suppressive policies.

important distinctions that would prevent predictable First Amendment violations, and if adopted

in its current form the policy risks chilling a substantial amount of constitutionally protected

speech and expression on campus. We urge the University to cure these errors through a substantial

rewriting of the policy. Or, as we explain below, we urge the University to reconsider whether

adopting this policy is even necessary in light of relevant existing policies and procedures.

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601.01 and paragraph IV(N) of the Statement of Student Rights and Responsibilities—adequately

existing ones here is unnecessarily punitive and reactionary.

Major disruptions at those events and others can be addressed through these longstanding policies.

distractions or embarrassment.” It also expressly states that protesters always have the right to

demonstrate outside of the hall or facility where an event is being held, or elsewhere. And the

Statement of Student Rights and Responsibilities, while prohibiting obstructions and disruptions,

expressly carves out exceptions “for behavior that is protected by [SPG 601.01].”

certainly fails to explicitly embrace—any of these important nuances and distinctions which are

critical to a healthy and free exchange of ideas in a university community. In addition, there is

reason to be concerned that the Disruptive Activity Policy will not just overlap with SPG 601.01

but supersede it. The proposed policy references SPG 601.01 in passing, but goes on to state: “In

processes (such as those referenced in the Statement of Student Rights and Responsibilities) to

address them. A new policy—especially one as vague, overbroad, and hastily written as the

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Disruptive Activity Policy—will only add more unnecessary fuel to an already fiery campus

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disagree on matters of intellectual significance, we make space for contesting perspectives…. We

threatens expulsion and criminal charges for engaging in disfavored demonstrations. That is an

unfortunate about-face from the Principles.