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       On September 14, 1964, Dean of Students Katherine Towle issued a statement indicating that some important changes in University policies covering the use of University facilities were soon to be given effect. "Beginning September 21, 1964," the statement began, "provisions of the policy of the Regents concerning `Use of University Facilities' will be strictly enforced in all areas designated as property of the Regents...including the 26-foot strip of brick walkway at the campus entrance on Bancroft Way and Telegraph Avenue..." The statement noted that the Bancroft Way area in question had been added "to the list of designated areas for the distribution of handbills, circulars or pamphlets by University students and staff in accordance with Berkeley Campus policy." Previously, at least from the date of the adoption of the "Use of University Facilities" policy of February 1, 1960 (which superseded Regulation 17), though distribution of handbills and circulars in the Bancroft Way area had not been officially authorized, it was permitted and not interfered with. In addition to such activities, posters, easels and card tables had been in use in this area throughout this period. Both sets of activities had involved solicitation of membership in political organizations, support or opposition of candidates, propositions and policies connected with various elections or social, economic or political matters of public concern; and solicitation of funds for the aid of projects not directly connected with an authorized University activity. Now, Dean Towle's statement said, "Posters, easels and card tables will not be permitted in this area because of interference with the flow of traffic." And, the statement added, "University facilities may not, of course, be used to support or advocate off-campus political or social action."

       On September 28, 1964, Dean Towle issued a new statement in response to student requests. On a "trial basis" a limited number of tables ("one table and one chair may be placed in front of each concrete pillar and one on the east side in front of and parallel to the concrete wall") were to be allowed in the Bancroft Way area; posters were also to be permitted. A clarification of the statement of policy of September 14 was then made: " is permissible to distribute in designated areas materials presenting points of view for or against a proposition, a candidate, or with respect to a social or political issue. Campaign literature, including bumper strips and campaign buttons, may also be made available for free distribution. It is not permissible on University property to solicit political party membership, to plan or initiate direct action pertaining to off-campus political or social issues, or to recruit individuals for such action." Finally, it was indicated that "because of the oft-repeated complaint that the presently designated `Hyde Park' area in the Student Union Plaza is somewhat isolated, a second `Hyde Park' area is being established, on an experimental basis, at the main entrance to Sproul Hall... Because of possible disturbance to persons working in Sproul Hall offices, voice amplifiers will not be permitted. There must be no interference with traffic or the conduct of University business."

       Also on September 28, 1964, Chancellor Strong stated, in an apparent effort to further clarify the situation. "Consistent with University policy regarding use of University facilities, no one is permitted on campus to use these facilities (it is unclear whether University facilities were implied to be available off campus and if so whether they could be used in the ways not permitted on campus) to mount social and political action directed to the surrounding community" (Whether such action legitimately could be mounted for direction to non-surrounding communities was not specified.) Strong then quoted the following statement of principles issued by President Kerr, June 12, 1961:

1. Freedom to speak and to hear is maintained for students and faculty members...

2. Subversion and other illegal activities are not tolerated; and we will not employ a Communist.

3. Law and order are maintained on the campus.

4. A balanced program of speakers and ideas is presented.

5. No exploitation of the name of the University is allowed.

6. No student may be compelled to join an organization which engages in social or political action.

7. No efforts at conversion and solicitation of members by political or religious groups are permitted on campus.

       Strong then stated that a petition from the ASUC Senate dated September 22, 1964, and requesting freedom to "(1) solicit political party membership, (2) mount political and social action on the campus, (3) solicit funds on campus for such action, and (4) receive funds to aid projects not directly concerned with an authorized activity of the University" had been received and brought to the attention of the Regents and President. "University facilities," said Strong, "are not to be used for any of these four purposes. Any student or group of students seeking to recruit members for social or political action, or to solicit funds for such action, is free to do so off-campus, but is prohibited from doing so on-campus."

       Continuing with this statement, Chancellor Strong sought to provide the reasons for the prohibitions:

"The University respects the right of each student as a citizen to participate as he sees fit in off-campus, non-University courses of action. When an individual, in so participating, acts in a disorderly way or is in violation of the law, he is answerable to the civil authorities for his conduct. Some citizens demand further that the individual as a student also be disciplined by the University; that is, that he be censored, suspended, or expelled. We answer such demands by pointing out that we respect the right of our students to act in their capacity as citizens in the public domain.

"On the one side, an individual as a student is held responsible by the University for compliance with its rules and regulations. On the other side, when a student goes off-campus to participate in some social or political action, he does so on his own responsibility as a citizen. He has no right, acting as a citizen, to involve the University, either by using its name or by using any of its facilities to further such action. For, were the University to become involved the consequence is clear. We ask and expect from the State an indispensable freedom residing in independence -- independence that rests on fulfillment of a public trust; namely, that the University will never allow itself to be dominated nor used by parties, sects, or selfish interests. By honoring this public trust steadfastly, the University is enabled also to honor and defend the rights of its members to act freely in the public domain in the capacity as citizens The consequence of defaulting on this public trust would be the erosion of the independence of the University and the destruction of the position maintained by the University respecting the responsibilities of an individual as a student in the University and respecting his rights and responsibilities as a citizen of the State. As a student in the University, an individual is answerable to the University for conduct coming under its rules and regulations. As a citizen of the State, an individual is answerable to the State for conduct coming under the laws of the State. This is as it should be to insure freedom with responsibility within the University and in civil society. The University extends many privileges to its students. In return, the University expects observance by its students of the University's published policies relating to students and student organizations."

       Thereafter a series of clashes between students and administration escalated to a point where students violated the prohibitions, were suspended and took direct action in protest against the situation. The consequences are, at present, still not entirely clear. Proper rules for the use of the campus for political and general free speech purposes are presently being negotiated by a tri-partite committee representing students, faculty and administration. The suspended students are being represented by the ACLU, and hearings are being conducted by a faculty committee to determine how these cases should be decided.

       It is the purpose of this memorandum to deal with the following questions: If no issues of traffic flow, interference with the conduct of classes or offices, destruction of property or greenery or fraudulent solicitation of monies are involved, under what conditions would prohibitions of the exercise of First Amendment freedoms on campus be constitutional?


"       The freedom of the individual to participate in political activity is a fundamental principle of a democratic society and is the premise upon which our form of government is based." Fort v. Civil Service Commission, 61 AC 329,332. It is the First Amendment's function to guarantee that Americans will not be deprived of the right to exercise these freedoms. The people's rights to discuss freely and generally all matters of public concern and to engage in all activities which may be integral or in aid of the processes of establishing, questioning or changing public attitudes or policies with regard to such matters include such activities as the following: publishing and circulating literature, soliciting and organizing litigation, picketing and demonstrating (including singing, clapping and chanting) in places where the people concerned can most effectively be reached whether on public streets, "private" property serving "public" functions (such as the streets of a company town or the parking lot of a super-shopping center) or "public" property serving similar ones, such as the grounds surrounding a state capitol. See, e.g., Grossjean v. American Press Co., 297 US 233; NAACP v. Button, 371 US 415; Hague v. CIO, 307 US 496; March v. Alabama, 326 US 501; Schwartz-Torrance Investment Co. v. Bakery and Confectionery Workers" Union, 61 AC 832; Edwards v. South Carolina, 83 SCt 680.

       Thus, in the Schwartz-Torrance case, for example, the California Supreme Court unanimously affirmed the right of union members to picket a bakery located in a shopping center by patrolling in a privately owned parking area which was the most realistically situated place for "mounting" the organizational activities in question. The "owner's" claim that he had a property right to prohibit the picketing received the following riposte from Justice Tobriner: it was a "right" worn thin by public usage. Nor, Justice Tobriner continued, "is a union's interest diminished because it may communicate its message at other admittedly less advantageous locations off plaintiff's premises." Id at page 836, And see Schneider v. State, 308 US 147, 163. "Neither a state nor a municipality can completely bar distribution of religious and political literature on its streets, sidewalks, public places or make the right to distribute dependant on a flat license tax or a permit to be issued by an official who could deny it at will." Lovell v. Griffin. 58 SCt. 666.

       It is precisely this power to deny at will the most fundamental freedoms we possess which the University administration is asserting. But the First Amendment, as incorporated into the Fourteenth, "protects the citizen against the State itself and all of its creatures -- Boards of Education not excepted. (Nor, we may add, Boards of Regents) These have, of course, important, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights. That they are educating the young for citizenship is reason for scrupulous protection of the Constitutional freedoms...if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes." West Virginia Board of Education v. Barnette, 319 US 671.

       What is the University's rationale for ignoring the compulsions of the First Amendment? As is evident from Chancellor Strong's statement of September 28, 1964, there is no claim of interference with traffic flow; there is no claim of disruption of classes or offices by shouting or singing; there are no claims of destruction of property or of dirtying the walkways of the campus. Nor is there any claim that the solicitation of funds has been or is other than bona fids -- fraud has never even been mentioned. What then is the claim which in the University's view justifies this draconian interference with the political freedoms of those whose lives are centered around the campus or those who seek to reach them?

       The claim, stated plainly, is that it is more important for the University to save its "image" from somehow being identified with controversial or partisan positions than it is to uphold the First Amendment. To draw on an unflattering but apt analogy, the University's position is very much like that of some commercial sponsor of a soap opera: no part of the viewing audience must be offended! What is preserved by this attitude of constitutional and intellectual supineness? "Freedom and independence" we are told. Perhaps so. For there is an argument to be made for the proposition that this is a policy well calculated to produce freedom from the commands of the constitution and independence from the commitments which are ordinarily associated with intellectuality. But there is no argument to be made for the meaning which the University would have us pluck from its pleas: they are either speciously or meretriciously false.


       First, a few preliminary matters. The argument is sometimes encountered that an education at a public university is a "privilege" or "benefit" and that it may therefore be conditioned in ways which would not be available if a university education were a "right." The short answer here is that "it is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial or placing of conditions upon a benefit or privilege... In Speiser v. Randall, 357 US 513, we emphasized that conditions upon public benefits cannot be sustained if they so operate, whatever their purpose, as to inhibit or deter the exercise of First Amendment freedoms." Sherbert v. Vernor, 10 LEd 2d 965, 971; Torcaso v. Watkins, 367 US 488, 496. Moreover it is probably no longer true, if it ever was, that an education is a mere "privilege". In any event, it is obvious that this doctrine would be close to the hearts and statute books of the segregationist South if it were but available. But Brown v. Board of Education and Florida ex rel Hawkings v. Board of Control, 350 US 413 out the other way. It can easily be imagined that the civil rights movement, so largely based on the activities of our young people and college students "mounting" action for the realization of basic human and constitutional fights on their campuses, would be seriously compromised if the bigots could compel a choice between an education and constitutional freedoms. Fortunately the danger is more imaginary than real.

       It is sometimes suggested that there is an "academic freedom" right to regulate the thought of students and that this "right" reaches so far as to control the reading, associations and actions of students, According to this theory, a University could constitutionally order a student not to read Freud or Marx. Again, the short answer is that there is no such right. Since the reversal of the Gobitis decision by West Virginia Board of Education v. Barnette, 319 US 624, it has been clear that teaching by persuasion and example is not to be confused with teaching by compulsion which coerces an attitude of mind; but more particularly, it has been clear that the claim of educational competence will not automatically resolve questions which require a constitutional separation of academic authority from academic usurpation of power forbidden under our constitution to any authority, high or petty.


       Action may fall within or without the protection of the First Amendment.

       Generally, if governmental power to abridge the liberty of action exists at all, the test of the legitimacy of an exercise of such power is radically more stringent for the category of action that is within the protection of the First Amendment than it is for the category of action that falls outside of that protection.

       Activities which fall within the area of First Amendment protection may be divided into two categories. First, those which constitute no more than an exercise of First Amendment freedoms. Second, those which affect or involve other matters which may be regulated or prohibited so long as due process of law standards (as contrasted with First Amendment standards) are met.

       The first category -- activities which fall within the area of First Amendment protection and constitute no more than an exercise of First Amendment freedoms -- may be illustrated by the following example: a peaceable, voluntary gathering of persons in a private home discussing the content of a proposed petition for redress of grievances to be directed to an appropriate legislative body.

       The second category -- activities which fall within the area of First Amendment protection which affect or involve other matters regulable or prohibitable subject only to the standards of due process of law -- may be illustrated as follows. A person may be prohibited from throwing refuse (banana skins or confetti, for example) on the streets. The test of the constitutionality of such regulation is a due process test. Under this test, the regulation is presumptively valid; the burden of proof rests on the party questioning the regulation's validity. In order to prevail, such a party must prove that there is no rational basis for the presumption of relevance as between the means adopted by the regulation (prohibiting refuse from being thrown on the streets) and some legitimate governmental goal (keeping streets reasonably clean). Thus far no First Amendment question has been raised inasmuch as throwing refuse on the street is, of course, action outside of the scope of First Amendment protection. However, when a regulation -- in the name of a legitimate governmental goal such as keeping streets reasonably clean -- reaches into the area within the First Amendment's protection, and the validity of such a regulation is questioned, the standards for judgment are radically different. Thus, if in the name of clean streets a regulation prohibits the distribution of all leaflets, it is clear that (whether intentionally or not) the First Amendment is affected. By the same token, it is clear that we are dealing with a category of activities which (at least to the extent that the leaflets deal with matters of public concern) fall within the protection of the First Amendment, but which also affect or involve other matters that in themselves are regulable or prohibitable subject only to the requirements of Due Process. Since First Amendment freedoms are now involved, the test of the validity of the regulation is radically changed. In the first place, the burden of proof now rests on the entity claiming the right to limit First Amendment freedoms. It must demonstrate that there are no means for reaching its legitimate goals other than or alternative to those which infringe upon First Amendment freedoms. Nor is that all. If such a claim can be established -- that there no alternatives (and here questions of economy or convenience will ordinarily be deemed irrelevant -- Schneider v. State, 308 US 147) -- that will not suffice as proof that the regulation is constitutional. In addition to proving that there are no other ways of reaching its legitimate goal, the entity claiming the right to curtail First Amendment freedoms must also prove that there is an overwhelming need to sacrifice the First Amendment freedoms to the goal in question, a need which is so great that it may be deemed "compelling" -- the need must carry compulsion of the character created by a "clear and present danger."

       Activities within the first category of First Amendment protection -- those which constitute no more than an exercise of First Amendment freedoms -- may not be abridged. As Chief Hughes put it in De Jonge v. Oregon, 299 US 353, 364-365:

"The people through their legislatures may protect themselves against ... abuse. But the legislative intervention can find constitutional justification only by dealing with the abuse. The rights themselves must not be curtailed."

       Activities within the second category of First Amendment protection -- those which affect or involve other matters regulable or prohibitable subject only to the requirements of Due Process of law -- may be curtailed only if the abridging entity can sustain the burden of proving that there are no alternative means for dealing with a legitimate problem and that the need to so deal with it is so overwhelming as to be deemed "compelling." Sherbert v. Verner, 10 L ed 2d 965: NAACP v. Button, 9 L ed 2d 405.


       The activities of voter registration, constitutional adjudication, and so on down the list of political efforts to achieve an end to racist desecration of the constitutional guarantee of equal protection are sheltered by the First Amendment. NAACP v. Alabama, 357 US 449; Bates v. Little Rock, 361 US 516; NAACP v. Button, supra, 9 L ed 2d 405; Edwards v. South Carolina, 9 L ed 2d 697.

       The First Amendment's protection in this area necessarily includes all activities reasonably related to the exercise of First Amendment freedoms. Thus, is is clear that a prohibition on all fund raising activities by the NAACP would violate the First Amendment in the same way that a prohibition of all methods of raising funds so that printing activity could no longer be carried on would violate the freedom of the press. Of course, this does not mean that a newspaper publisher can claim exemption from the Fair Labor Standards Act on the grounds that it raises his costs, since it is clearly not the purpose of such legislation to inhibit the First Amendment activity of printing news but rather, in a general and nondiscriminatory way to regulate the commercial activity involved in the relation between labor and capital whether it deals with the newspaper publishing or the lumbering or other industries. See Oklahoma Press Co. v. Walling. However, if it appears that the purpose of legislation (which ostensibly deals with such ordinarily non-suspect, because general and non-discriminatory, subjects as taxation) may be (directly or latently) to interfere with or inhibit the exercise of First Amendment freedoms, such legislation will be struck down.. See Grossjean v. American Press Co. If, therefore, a general and nondiscriminatory effort is made to ensure the bona fides of those who solicit funds (regardless of the purposes of such solicitation) no First Amendment problems are necessarily presented. But, if a flat prohibition were placed on the solicitation of funds by members and friends of the Student Non-violent Coordinating Committee, or any civil rights organization, or any political organization, that would clearly violate the First Amendment. Thus, the matter of solicitation of funds may or may not be a First Amendment protected activity depending on the purpose of the solicitors. Panhandling is not a First Amendment activity; securing financial contributions for political purposes is.

       And seeking to make a profit in the newspaper publishing business, for example, may be both. Therefore regulations dealing with the liberty to panhandle need not satisfy First Amendment standards though they must meet due process standards. Regulations dealing with the liberty to carry on First Amendment activities must meet First Amendment standards. Regulations narrowly drawn so as to deal only with the commercial aspects of First Amendment businesses need not raise First Amendment questions.


       Our specific problem is the situation with respect to political activities on the University of California campus at Berkeley. It is important to specify the campus of concern because geographical data may bear on the constitutional considerations. If, for example, the campus were limited to a single building that would obviously not present the same questions as are involved in a situation where acres of open land surround classroom and administration buildings.

       Generally, the Regents of the University and its officers may, by virtue of and within the authority which the University possesses to operate as a division of the State government, regulate the affairs of the University subject however to the limitations of the federal constitution. Therefore, if limitations are sought to be placed on First Amendment freedoms, they must be justified by those seeking to impose the limitations in the ways we have reviewed. In this regard, it is irrelevant whether one or another part of the government of the State of California seeks to impose such limitations.


       Could a state university constitutionally prohibit its students from directing a petition for redress of grievances to legislatures or courts? For example, could the University of Mississippi prevent a student- perhaps a James Meredith- from seeking protection against racial discrimination on the campus? Could it, constitutionally, threaten to suspend him as a student if he did not refrain from writing to his representatives in the legislative and executive branches of government, or if he did not refrain from filing an action seeking judicial relief?

       Can the University of California prohibit its students from engaging in the First Amendment activities carried on by such organizations as SNCC in Mississippi during a period of summer recess on pain of suspension or expulsion from the University? Can it prohibit students from going to their government agencies to seek protection against alleged violations of their constitutional rights by the University? Could the University, for example, forbid the students to organize a legal campaign to determine the constitutional validity of the current limitations on the use of the campus for political purposes?

       Let us apply our theoretical framework to the last of the questions posed. Is such action by students alone or with others (including all reasonably necessary activities in aid of such action, as for example raising funds for legal expenses) First Amendment protected? Unquestionably it is. Cf. West Virginia Bd. Of Education v. Barnette, 319 US 624; NAACP v. Button, 9 L ed 201 405. Does it fall within the first or the second of our categories of First Amendment protected activities? Is it no more than an exercise of First Amendment freedom, or does it affect or involve other matters? We may eliminate the question posed by a bona fides regulation of the collection of monies on the assumption that this, when done carefully and non-discriminatorily need not interfere with any First Amendment freedom. Similarly, we may eliminate the questions posed by regulations drawn narrowly, carefully and non-discriminatorily for the purpose of avoiding disruption of the functioning of classes and offices, destruction of property, or under interference with traffic flow on the assumption, again, that such regulation need not interfere with any First Amendment freedom. * The rationale here is that the First Amendment does not guarantee the right to obtain money under false pretenses, to disrupt classrooms or administrative offices, destroy property or interfere unduly with traffic. Therefore, regulations narrowly drawn so as to control these purposes and these effects and only these purpose and these effects do not raise First Amendment questions.

       If we put such questions to one side and focus instead on what has actually been done by the University administration, what must we conclude? It appears that we must conclude that the attempt to limit the First Amendment activities of the students and others on the Berkeley campus is a direct attempt to limit the sort of First Amendment activities which must be placed within our first category! That is, nothing other than a pure exercise of First Amendment freedoms remains to be regulated and therefore it is the prevention of the exercise of the First Amendment rights and First Amendment rights alone which is involved. Thus, the University, if it desires to justify its action, must argue that it has the power to prevent someone like a James Meredith from organizing support for his efforts to secure constitutional justice or even from doing what he might alone and without organized support, because and only because it claims to be able to limit his rights as an end in itself, in the sense that no abuse--no substantive evil which could itself be prescribed--exists as a justifying fulcrum for the limiting lever.

       If the University desires to justify its restrictive ukase on any grounds other than that it is pleased to do so, then, since we are operating, according to our theoretical framework, within our second category the University will have to bear the burden of proving that there are legitimate objectives which it can not reach without trespassing upon First Amendment protections, and then it will have to prove that its need to violate the First Amendment is so overwhelming as to be compelling. But what could these legitimate objectives be? There is no claim that traffic flow is being upset (though the claim, now retracted, was once advanced); there is not now and has not been any claim that the activities sought to be suppressed involve or threaten the disruption of classroom, laboratory or office; there is not now nor has there been any claim of actual or threatened destruction of property. Thus, the question as to whether such claims, if they existed, might support the required showing of overwhelming or compelling need is rather less than academic.

       Perhaps the University may wish to argue that it must limit its students' First Amendment freedoms in order to avoid outside pressures which might kill the University. There are three answers here. First, Art. IX Sec. 9 provides that the University shall not yield to partisan political pressures in the appointment of its regents or in the administration of its affairs. Second, why should a distinction be drawn here between faculty and students? Suppose outside pressure were brought to bear to force students to stop learning "evolution"--and thus, necessarily, for teachers to stop teaching "evolution?" Could the University dismiss a professor of biology who refused to knuckle under to this pressure? If the professor brought court action to protect his job, would the First Amendment come to the aid of this sort of academic freedom? Finally, this argument is not distinguishable from the argument of the Little Rock board of education when it was threatened with violence if it undertook to observe the law and enforce integration. In response the school board sought to deny rights which it had a duty to enforce. As Justice Frankfurter said in Cooper v. Aaron. 358 U.S. 1 (concurring opinion):

"No explanation that may be offered in support of such a request can obscure the inescapable meaning that law should how to force. To yield to such a claim would be to enthrone official lawlessness. "

       Our conclusion is that, so far from the University having a legitimately compelling justification for its action, its action is neither legitimate nor compelling nor justifiable. Moreover, we may go farther and affirm that no theoretical considerations which have been advanced in any serious sense--whether the administration has appealed or adverted to them directly or impliedly--can, in view of the appropriate tests of constitutionality, justify the University's position. It is simply indefensible.

                     -- Albert Bendich.
                         Former Staff counsel to the American Civil Liberties Union
                         Member of Executive Committee, ACLU, Berkeley Chapter

* However, though such regulations need not interfere with First Amendment freedoms, they well might. For example, among the freedoms guaranteed by the First Amendment is the freedom to employ the most effective avenues of approach to others for political and other First Amendment purposes. Therefore, a denial of certain avenues of such access on 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 governmental entity seeking the suppression or curtailment can prove that there are no alternative means of achieving its purposes and that the means in question are so overwhelmingly necessary as to be "compelling." Schneider v. State. So important is the substance of this guarantee that the form of property ownership will be analytically pierced when necessary even to the extent of imposing First Amendment restrictions on "privately" owned property. See Marsh v. Alabama, 1326 U. S. 501; Schwartz-Torrence, supra, 61A, C. 832.


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