Lisa Rubens
Free Speech Movement Oral History Project
Malcolm Burnstein
August 1, 2000
P4
Rubens: I mean, did you feel the university had overstepped its bounds?
Burnstein: Oh, there’s no question about it because the university is a public institution. The First Amendment prohibits the government—and that includes state and local government as well as the federal government—from censoring the content of speech, except in very limited circumstances. It certainly prohibits censoring the content of political speech. That’s exactly what the University of California was doing. It was censoring the content of political speech. It was unconstitutionally doing so. The students were absolutely right in their initially very modest demand, that they be allowed to re-establish tables at the corner of Bancroft and Telegraph, at the entrance to the university. That’s all they wanted to do. That’s what they had been doing for years. When the university shut that down, all they wanted to do was put their tables back there. They ended up, of course, with tables everywhere on the campus.
p8
Rubens: Do you have a recollection of the stance you took, what you advised them?
Burnstein: We talked about what the constitutional requirements were. At that point, it became fairly clear that the students’ position was not only defensible but quite modest given the constitutional standards that apply to the university. The university can enforce time, place, and manner rules about speech. But it can enforce no rules about the content of speech. Now, there are current Supreme Court cases that say public institutions may sometimes ban all nonacademic speech. But that wasn’t the case then. Of course, the university wasn’t trying to ban all non-academic speech, only some political speech. |
