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The People Out of Doors — In Trees The People Out of Doors — In Trees – Concurring Opinions

The People Out of Doors — In Trees

As reported here, for several months now activists have been protesting the planned construction of a new athletic facility at the University of California-Berkeley. Some of the protesters have been camping out in and near a grove of trees slated for destruction. The protest tactics are hardly notable, particularly at Berkeley. What is notable is the University’s latest move in this ongoing dispute. Under cover of darkness, university officials had the grove surrounded by a 10-foot-high fence. The erection of the fence was necessary, said university officials, to “protect” the protesters from angry football fans.

The Berkeley episode is one indication that campus spaces, once facilitative platforms for social movements, have become microcosms of the spaces outside their gates. Like other state actors, public college and university officials have increasingly turned to “free speech zones” and other spatial tactics to control outdoor expressive activity. In some instances, adverse publicity has caused officials to rethink these tactics, or at least re-zone campus space to allow for additional open forums. But expressive zoning, detailed permitting requirements, and other spatial controls are prevalent on many campuses today.

The argument that the fence facilitates free speech by “protecting” the speakers, advanced by the university’s vice chancellor for administration, is typical. But putting speakers inside fences is an affront to free expression. The structure itself communicates that it is the public that needs to be protected from the speakers. Unless and until the protest is held to be unlawful (an argument the university is now pressing in court), public officials have a duty to protect these protesters from any hostile audience. That means providing some form of security in the event those currently voicing hostile opinions on the Web actually show up, not diluting and demeaning the protesters’ message by caging their display.

As the Berkeley response also demonstrates, the use of spatial tactics like these can seriously backfire on administrators. The erection of the fence has apparently engendered solidarity among groups and community activists that do not typically join cause. It may not be, as one activist described it, a “Guantanamo Berkeley,” but the Berkeley fence is an oddly ironic structure in the birthplace of the Free Speech Movement.

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8 Responses

  1. Orin Kerr says:

    You write:

    Unless and until the protest is held to be unlawful (an argument the university is now pressing in court), public officials have a duty to protect these protesters from any hostile audience.

    I don’t understand this. If I read the article correctly, the protesters are literally living in a tree on public land and are refusing to leave the tree. Why would you need a court to tell you in a formal decision to know that this is unlawful? Surely the park regs cover this pretty clearly. And if you do need a court, is a trial court decision good enough, or do you really need an appellate court or the state Supreme Court to weigh in before this “duty” of protection is overcome?

  2. Greg says:

    I know it adds flair, and it’s the way the Times reported it, but this is hardly “under cover of darkness.” And lest someone think the Chronicle photo is doctored, I drove by the area under cover of daylight on my way to work that day with the fence still under construction.

  3. Tim Zick says:

    In response to Orin Kerr’s question: The protesters have apparently been there since December, 2006. The university has not sought to cordon off the area or ban access to it. Nor, as far as I know, have officials moved to arrest the protesters for trespass or any other crime. The university has instead maintained that the protest raises a variety of health and safety concerns. A judge today denied the university’s request for a TRO ending the protest. See http://www.mercurynews.com/breakingnews/ci_6882974 It thus appears that the local regulations do not clearly and unequivocally indicate that this form of protest is unlawful (that issue may, as you suggest, be clearer in places more distant from People’s Park and its immediate environs). If the university’s allegations are proven in court, then there are legitimate health and safety reasons for enjoining or at least limiting the protest. Under at least one interpretation of the First Amendment (post-Feiner), until then officials have a duty to protect these speakers from “hostile” audiences. The justification for the fence is that it serves this protective purpose. I don’t think that’s what the Supreme Court had in mind in Edwards v. South Carolina and Cox v. Louisiana.

  4. Orin Kerr says:

    Tim,

    The story indicates that the judge concluded that there was no emergency right now, so he was not going to act at this time. But I still don’t understand why a *court* ruling is needed here before the university can take action. I’m not familiar with the cases here, but is there some case that says that the government cannot legally take action until a court allows it ex ante? Or is it just your view that this is the preferred course as a matter of policy?

  5. Tim Zick says:

    Orin —

    Fair point. The university obviously does not have to wait for a judicial pronouncement to arrest or forcibly evict someone it considers a trespasser. My post assumed that the university was not willing to do that. Indeed, I don’t think the university wants to go that route here, for a combination of legal and public relations reasons. If they are not going to do that, however, then I think the protest remains presumptively lawful. And in that case, I think the First Amendment does impose some duty to protect the protesters from hostile audiences.

  6. Orin Kerr says:

    Tim,

    Thanks for the response. If I can push you a bit, though, I don’t think I understand why the university’s enforcement strategy makes the protest presumptively lawful. The university has apparently decided that it would be better to respond to the illegal protest by bringing a lawsuit and building the fence rather than having the protesters kicked out immediately. Why does that strategic decision create a presumption that the protest is lawful?

  7. Tim Zick says:

    Orin,

    The university would seem to have three options: (1) ignore the protest; (2) remove the protesters as trespassers and defend that action in court (at which point we would learn whether the protest was or was not “illegal”); or (3) allow the protesters to remain on the property and go to court to seek an injunction to end the protest (in the meantime, erecting a fence for the protesters’ “protection” from hostile football fans).

    I don’t think the presumptive lawfulness of this protest turns solely on the university’s strategy. There is no allegation that the speakers are conveying any illegal message. They did not apparently need or obtain a permit to occupy the space. The university has gone to court seeking a TRO; it of course bears the burden of proving unlawful presence. The property the protesters are occupying is public space — likely a public forum of some sort (at least the areas beneath the trees, if not the trees themselves — all of which is now located within the fence). The university has not sought their removal as trespassers. As far as I can tell, it has not made that argument in court either; it has instead argued that what they are doing there poses some health and safety risks. It may well be that even if they have a lawful right to be there, removing the protesters from the trees or otherwise limiting this display is a valid time, place, and manner regulation. But a court has to make that determination.

  8. Orin Kerr says:

    Got it. I guess I’m not sure if you mean “presumptively lawful” in a descriptive legal sense or a normative policy sense, but I appreciate the exchange.