FOR COMMENT: |
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March 3, 2015, Volume 61, No. 25 |
On Thursday, March 26, the Committee on Open Expression will hold a series of three open hearings, at noon, 12:30 p.m. and 1 p.m., soliciting the views of individuals and groups on the following two proposed interpretive rules. The open hearings will be held at the Law School, 3501 Sansom Street, Silverman Hall room 147 (enter at 34th Street between Chestnut Street and Sansom Street). Any member of the University community is welcome to submit comments in writing in advance of the hearings or to offer comments in person at a hearing. Anyone wishing to comment in writing or to speak should email the chair of the committee at sbibas@law.upenn.edu no later than Wednesday, March 18 at noon, indicating whether the commentator wishes to speak in person and providing a summary of proposed remarks for circulation to the committee.
University of Pennsylvania Committee on Open Expression - Open Hearing: Proposed Rules Interpreting the University’s Guidelines on Open Expression
Pursuant to the University’s Guidelines on Open Expression, and in particular Parts I.C (charging this Committee with the “major task[]” of “interpreting these Guidelines”) and IV.B.1 (conferring jurisdiction to adopt such interpretive rules after an open hearing), the University of Pennsylvania Committee on Open Expression proposes to adopt the following “rules to interpret[] [and] give more specific meaning to the Guidelines.” “The University shall publish [these interpretive rules] at least once each academic year in a manner that brings them to the attention of Members of the University Community.” (III.A.1):
I. Inviting Speakers to Campus
A. The Guidelines clearly express the foundational value of free speech at Penn (I.A.): “The University of Pennsylvania, as a community of scholars, affirms, supports and cherishes the concepts of freedom of thought, inquiry, speech, and lawful assembly. The freedom to experiment, to present and examine alternative data and theories; the freedom to hear, express, and debate various views; and the freedom to voice criticism of existing practices and values are fundamental rights that must be upheld and practiced by the University in a free society.” These values are of paramount importance: “In case of conflict between the principles of the Guidelines on Open Expression and other University policies, the principles of the Guidelines shall take precedence” (I.D).
By allowing a controversial speaker to speak or a group to organize and invite a speaker or hold an event, the University of course in no way endorses that speaker’s or event organizer’s content or viewpoint; rather, it affirms the value of creating a robust marketplace of ideas and fostering reasoned disagreement and discourse.
B. The Guidelines on Open Expression already unambiguously forbid discriminating against particular content and viewpoints (I.B): “the substance or nature of the views expressed is not an appropriate basis for any restriction upon or encouragement of an assembly or demonstration.” The unpopularity of a speech’s content or viewpoint is not a reason to suppress speech. Objectors may not have a “heckler’s veto” over speech with which they disagree. Allowing threats of protests or violence to suppress speech in any way would encourage protesters to make such threats. In keeping with this foundational principle, the University has never revoked a commencement speaker’s invitation to speak based upon the substance of the speaker’s views, including any controversy they might generate.
Most speakers at Penn are invited not by the University itself, but by particular organizations, departments, schools, and individuals at Penn. The Guidelines protect members of the entire University community against official reprisals for hosting controversial speakers and events. An event organizer is at liberty to change its mind freely, without duress, and to cancel an event or a speaker invitation. Other members of the University community likewise have the right to criticize a proposed speaker’s or event’s substance or viewpoint, or even to call upon the event organizer to cancel an event or rescind an invitation. But they may not go beyond criticism to exert any duress on the event organizer or speaker to withdraw. Duress includes any express or implied threat—by an administrator, a member of an administrative staff, a student leader, or a faculty member or teaching assistant in a supervisory or hierarchical relationship to an event organizer or speaker (particularly one within the same department or school)—to an organization’s or speaker’s or event’s safety, recognition, registration, budget, funding, or access to venues or security, or to any faculty, student, administrator, or staff member’s employment, tenure candidacy, funding, grades, honors, academic standing, or other status within the University, or a threat of violence or similar unlawful conduct. Any such duress, express or implied, gives rise to the natural inference that the actor is seeking to suppress speech because it is controversial or unpopular. That would amount to “any restriction upon” “the substance or nature of the views expressed,” in violation of the Guidelines (I.B).
C. The norm at the University is to allow reservations of rooms and other venues on a first-come, first-served basis. Denying a room-reservation request on any other basis, or worse rescinding an existing reservation of a room or other venue, raises the almost inescapable inference that the denial or rescission is based on “the substance or nature of the views expressed” (I.B). Thus, the Guidelines already require, “if practicable, consulting with the Committee on Open Expression before denying a request for use of a room, facility, or space by an organization recognized by the University for a reason other than prior assignment of the room, facility, or space. In any event, any such denial must be reported promptly to the Committee” (III.A.2.d).
The same principle, in keeping with the Guidelines’ letter and spirit, applies to the authorization of events and to the provision of security, audiovisual, publicity, and other logistical support. An organization must of course have a budget sufficient to defray the necessary expenses and must reserve any such resources sufficiently in advance to allow the University to provide them on a first-come, first-served basis. Once such reservations have been made with adequate funding and advance planning, however, and particularly once a student group, faculty member, school, department, or organization has formally invited a speaker, whether by contract or other formal invitation such as one on University letterhead, any rescission or compelled modification of existing reservations or security arrangements raises the strong inference that the rescission or modification is based on “the substance or nature of the views expressed” (I.B). “[I]f practicable, [any member of the University community must thus] consult[] with the Committee on Open Expression before denying [such] a request [or rescinding or forcibly modifying such a reservation] . . . for a reason other than prior [reservation of the scarce resource at issue]. In any event, any such denial [including a rescission or compelled modification] must be reported promptly to the Committee” (III.A.2.d).
D. “[T]o ensure the continuing openness and effectiveness of channels of communications” at Penn, the Guidelines establish the Committee on Open Expression (I.C). The Committee is expressly charged with “its major tasks” of “interpreting these Guidelines” and “recommending policies and procedures for the improvement of all levels of communication” (I.C). The Committee is also expressly charged with preventing, mediating, and resolving conflicts related to open expression (IV.B).
Penn’s tradition strongly encourages consulting with interested stakeholders across campus. On issues involving open expression, such consultation ought to include the Committee on Open Expression and the Office of the Vice Provost for University Life. The Committee strongly encourages students, faculty, staff, and campus organizations and groups to raise such issues at the earliest possible opportunity. If a student group or other University of Pennsylvania affiliate believes that a member of the University community is violating or attempting to violate the Guidelines on Open Expression, including any of the foregoing provisions, it may ask the Office of the Vice Provost for University Life to mediate to resolve the issue. If the mediation does not produce a mutually satisfactory resolution, the aggrieved party may file a complaint with the Committee on Open Expression, or with the chair, administrative liaison, or members of the committee if a quorum is not immediately available.
II. Open Expression in Electronic Media and Cyberspace
The University’s Guidelines on Open Expression were originally drafted decades before the spread of email and the Internet and well before the creation of social media, and therefore do not expressly mention electronic forms of communication. But their principles apply equally online.
The value of free and open expression and vigorous debate apply with equal force to newer forms of communication, including emails, web sites, social media, and other technologies and communication media. As the University’s Information Systems and Computing Division’s Policy on Acceptable Uses of Electronic Resources puts it, “The University’s commitment to the principles of open expression extends to and includes the electronic information environment, and interference in the exercise of those rights is a violation of this policy and of the Guidelines on Open Expression” http://www.upenn.edu/computing/policy/aup.html Whether communications occur on Locust Walk or in cyberspace, open expression remains equally valuable to the University and equally protected to the same extent, under the same principles, and subject to the same limitations as non-digital forms of communication. |