Challenge “Free Speech Zones!”

Kevin Shaw was not happy when he was told by a school administrator to stop distributing pocket Constitutions outside the campus free speech zone or risk being led out. So, he sued, and won.

On December 12, 2018, the Los Angeles Community College District Board agreed to open the main areas of Los Angeles Pierce College to student expression, revoke a district-wide policy that declared all property on its nine campuses to be “non-public forums,” and pay $225,000 in attorneys’ fees.

The LACCD’s actions did not come about as a result of their suddenly being “woke” to the fact that ensuring free exchange of ideas should be a principal function of an educational institution, judging by an announcement on the LACCD’s website,

In settling the lawsuit, the LACCD agreed to make the designated free speech zone at Pierce College much larger and to make sure all of the nine colleges have similar processes to allow student free speech activities.

No, the LACCD’s actions were the result of a lawsuit that Judge Otis Wright of the U.S. District Court for the Central District of California refused to dismiss. The lawsuit moving forward, media picking up the story, and Jeff Sessions (in the days he was still U.S. Attorney General) filing a Statement of Interest in the case put the LACCD in a precarious condition worthy of a fast retreat.

The Lawsuit

The lawsuit in question is Shaw v. Burke (the Burke party refers to Kathleen F. Burke, then president of Pierce College). In November 2016, Kevin Shaw, a member of Young Americans for Liberty (YAL) and student at Pierce College, was distributing copies of the U.S. Constitution outside of the college’s tiny free speech zone (the campus occupies 426 acres, and the free speech zone was 616 square feet). A college administrator warned him that he needed to file a “free-speech permit” and restrict his activities to the college’s free speech zone, or be asked to leave the campus.

In March 2017, Shaw filed the law suit with the sponsorship of the Foundation for Individual Rights in Education (FIRE). In January 2018, Judge Wright rejected a motion by Pierce College for dismissal of the case. On December 12, 2018, the Los Angeles Community College District settled.

In light of the District’s attitude towards free speech, the $225,000 in taxpayer money the LACCD paid as attorneys’ fees as part of the settlement was probably the best use of taxes the college made in a while.

The Victory in Shaw vs. Burke is Only a Beginning

Judge Otis Wright’s Order rejecting Pierce’s motion for dismissal of the case lists the strengths and weaknesses of Shaw’s complaint and of Pierce’s response based on prior cases. As a result, the Order denies Pierce’s motion to dismiss the case and grants an injunction in LACCD’s practice of approving (or denying) permits, but cites prior decisions that say exercising one’s First Amendment rights in areas where one is disrupting foot traffic or otherwise interfering with the activities of others is not permissible.

Therefore, the LACCD can say it has made the free speech zones on campuses “much larger,” as opposed to it has eliminated them. But who decides how large such zones need to be, and based on what criteria?

Maybe the next step is for liberty-leaning individuals and/or groups to file lawsuits in an attempt to overturn court decisions that allow for restraints by government agencies imposed prior to a free speech event.  Actually obstructing traffic, interfering with other people’s activities, disrupting the main purpose of education facilities – learning, or engaging in any kind of violence should be the reason for restrictive responses, not the prospect of someone stepping outside a designated zone!

The Bigger Picture

Shaw vs. Burke was filed in the state of California, where the populous coastal cities are epicenters of progressive politics, political correctness, safe spaces, and the “Resistance.” It would not be far-fetched, therefore, to surmise that folks living in these epicenters would prefer restrictive speech rater than open discussion that might disturb the accepted wisdom.

John Stuart Mill, in his epic tome On Freedom, goes beyond laws and formal bills of rights, and observes that government’s restriction of free exchange of ideas is unacceptable, even when done with the full consent and agreement of the populace.

Let us suppose, therefore, that the government is entirely at one with the people, and never thinks of exerting any power of coercion unless in agreement with what it conceives to be their voice. But I deny the right of the people to exercise such coercion, either by themselves or by their government. The power itself is illegitimate. The best government has no more title to it than the worst.

[T]he peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.  John Stuart Mill, On Freedom, Chapter II: Of the Liberty of Thought and Discussion.