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Professor Fires Off Lengthy Email In Defense Of Student Forbidden From Handing Out Copies Of The Constitution

By Tim Cushing | Techdirt | November 1, 2013

On Constitution Day (Sept. 17th), a student of Modesto Junior College, Robert Van Tuinen, was prevented by Modesto Junior College administration from handing out copies of the Constitution. The college apparently believes free speech is limited to a single small concrete slab on campus, generously named the “Free Speech Zone.” Contrary to the First Amendment (and the state’s laws governing public university policies), MJC restricts free speech to no more than two people per day, subject to approval of the administration.

Van Tuinen set out to challenge the stupidity of this policy and MJC administration obligingly played its part, resulting in a story that spread across blogs and news sites. As a result of its actions, the staff at MJC was “subjected” to insults, death threats, and even worse, an “unfair and negative portrayal” by the media. While no one condones death threats, one would be hard pressed to agree with Jill Stearns, the president of MJC, that the portrayal was “unfair” or that the school’s willingness to place policy above all else, including the Constitution and common sense, wasn’t deserving of a few disparaging remarks.

Shortly after MJC went into damage control, Van Tuinen sued the school for violating his First Amendment rights. Van Tuinen is seeking a permanent injunction against the school’s unconstitutional policies, as well as damages and court costs.

Now the organization that originally brought Van Tuinen’s experience to national attention (FIRE) brings news that a Modesto Junior College professor has written a lengthy email to all Modest Junior College faculty members to call attention to the college’s actions which the administration seemingly wants to let recede into the background.

Professor William J. Holly was kind enough to forward his entire email to me, as well as provide some additional info on California laws governing schools and students’ First Amendment rights, as well as this bizarre and tense interaction with school security over the supposed rule changes President Jill Stearns said were underway.

I do not know what rules are now in effect. Last week I stopped by campus security and asked what the rules now were, and he referred me to ASMJC office on the other campus. I said he must know what the rules are since he was responsible for enforcing the rules. He kept pushing the paper with the name of the office on it, saying he was referring me to that office. It got a little tense because I kept saying he must know the rules and should be able to let us know what the rules are. Finally, he said he was not allowed to discuss this with anyone because they are under litigation. Stearns says the rules are being reviewed. Does that mean there are no rules?

Stearns’ statement says the college is “evaluating its policies and procedures.” It also says this:

There is absolutely no requirement that a student register weeks in advance and hand out his literature only in a small marked area.

There may not be one now, but that requirement was certainly in place back in September.

It also says this.

To those who were offended by the appearance of censorship, we again affirm the commitment of the college and district to civil discourse.

Hilarious. Pity the poor people who took offense at Van Tuinen being accosted by a campus cop and repeatedly told he’d need to get on the waiting list for the Freedom Slab and mistakenly believed it violated his First Amendment rights.

Holly does a wonderful job in his email dismantling Stearns’ non-apology.

[I]t is unclear what she means when she addresses “those who were offended by the appearance of censorship.” Van Tuinen was not subjected to the mere “appearance of censorship.” He was silenced and he was prevented from distributing his literature. That is outright censorship, pure and simple, whether it resulted from a misunderstanding or not.

But Holly’s letter is more than just a deconstruction of Stearns’ statements and MJC’s dubious policies. It’s also a wake-up call directed at his colleagues, many of whom were either unaware of this event or simply stood by and let incident pass by not remarked on.

Dear Colleagues:

The paper attached above (Destructing Causal Deconstruction) exposes some of the absurdities that are committed in the name of “Deconstruction.” I think it is a good read — clear, amusing, imaginative, and instructive. If you ever wondered what “deconstruction” is really about, you would be hard pressed to find a better introduction. One question that I cannot answer, however, is whether or not I would be arrested by a security officer if I insisted on wandering about the quad on our campus, handing out copies of this paper and discussing it with those who might be interested in the topic. This is not a silly question…

Nearly a month ago (Sept. 17th) one of our MJC students, Robert Van Tuinen (also a veteran), was trying to pass out copies of our federal Constitution on Constitution Day. He was prevented in this exercise of free speech by an MJC security officer, and then by an official at the office of Student Services who told him he was allowed freedom of speech and the right to pass out literature only in certain tiny restricted areas on our campus, and then only after booking a reservation — which would not be available until the following month!

I am puzzled why there has been no faculty outcry over this ugly incident. Why are we not standing up for our student who only wanted to exercise his constitutional right to free speech? Do we really want to be known nationwide as the college that wouldn’t let a veteran pass out copies of our Constitution on Constitution Day?

Holly’s not being facetious about “nationwide.” The story was picked up by the Huffington Post, the Washington Times, FOX News, the L.A. Times, along with numerous other well-read sites like Reason, the Daily Caller and National Review Online. But Modesto Junior College itself? Apparently it isn’t interested in providing current or prospective students (or faculty, for that matter) with anything more than the president’s statement.

The First Amendment in pertinent part says, ” Congress shall make no law … abridging the freedom of speech, or of the press …” Some have taken this to be a right you have against the Federal Government, but not (say) against the State of California (as though the rights you thought you had simply in virtue of being a citizen of the United States could be nullified by the particular state in which you live). Happily, the point is largely moot because the constitution of California has its own guarantees of rights that largely parallel the U.S. Constitution Bill of Rights — including separation of church and state, etc. Guarantees of freedom of expression even exist in parts of the California Code of Education, and even the University of California has a constitution that holds out these rights, and even individual campuses have their own codes regarding such things as Academic Freedom. At CSUS and at PLU, the rules that claim Academic Freedom for faculty make clear that such freedom should extend equally to students!

The most pertinent part of the California Education Code is this section.

66301. (a) Neither the Regents of the University of California, the Trustees of the California State University, the governing board of a community college district, nor an administrator of any campus of those institutions, shall make or enforce a rule subjecting a student to disciplinary sanction solely on the basis of conduct that is speech or other communication that, when engaged in outside a campus of those institutions, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article I of the California Constitution.

Considering Van Tuinen’s lawsuit, the directly-following subsection is also relevant.

(b) A student enrolled in an institution, as specified in subdivision (a), at the time that the institution has made or enforced a rule in violation of subdivision (a) may commence a civil action to obtain appropriate injunctive and declaratory relief as determined by the court. Upon a motion, a court may award attorney’s fees to a prevailing plaintiff in a civil action pursuant to this section.

Given the state law governing the public college, it would appear that MJC’s free speech policies are in violation of state law, not to mention the state’s constitution, even granting a very generous reading of “time, place and manner” wording.

Holly also questions the “formal apology” extended by the school to Van Tuinen. Whatever it was (and no one has seen it but Van Tuinen and administrators), it’s clearly not sufficient.

[W[e are told that a formal apology has been provided the student. It seems to me, however, that apologies in such cases are best made in public. I think Van Tuinen would want a published apology, a public admission that MJC had no right to deny him the exercise of his liberties that they did, and a promise that no other students would have their rights similarly violated. And, since the violation of the rights of one of our fellow citizens violates us all, I believe that we all are entitled to see a copy of that apology, to see the particulars of the concessions made, and to see in what manner those liberties now are affirmed that then were denied.

As Holly points out, the fact that Van Tuinen is proceeding with his lawsuit is a good indicator that the apology offered wasn’t satisfactory.

Holly then goes further, suggesting what should be done, not only to satisfy Van Tuinen, but to make sure other students know their rights are protected and ensure this sort of restriction doesn’t make its way back into the school policies in the future.

In one interview, [Van Tuinen] has said that he is not doing this for the money. I think what he wants is a civil rights victory. That should be easy to give him, especially if President Stearns is right this all has just been a misunderstanding…

If he doesn’t really care about money, if he just wants public acknowledgement that he was wronged, perhaps we should offer this: Buy him a couple thousand copies of the Constitution or of the Bill of Rights, and offer to make the individuals he has sued do community service that is relevant. Make them each do twenty hours of community service that consist of passing out copies of the Constitution and explaining to people the importance of everyone’s right to free speech. That ought to make him whole. And, to show my sincerity, I hereby offer to do 20 hours of such community service myself. Perhaps I too bear part of the responsibility here, because this one flew under my radar too. I did not check to see if my students’ rights to free speech were properly protected. Sometimes the implications of rules just do not strike us until we see them enforced.

Summing things up, Holly asks what some famous free speakers would run into if attempting to speak on MJC’s campus.

Now, if you do not like my suggestion that we should have a policy of completely free, unfettered and unqualified freedom of thought and expression on this campus, just ask yourself this one question: Suppose that Thomas Paine, the great pamphleteer (“These are the times that try men’s souls…”) were to come to MJC. Would you make him show his ID or make an advance appointment? Would you sic campus security and Student Services on him before allowing him to distribute his literature? Hell, what would you do if Jesus came? Would you have Student services tell Him he needs an appointment in advance, that the free speech zone is booked up until next month, and that He needs to confine his speech to the designated free speech zone areas? I say, Let Freedom Reign!

Holly’s effort to light a fire under his colleagues is admirable. Many people are too willing to defer to existing policy, especially if it doesn’t apply directly to them. Van Tuinen pushed back against an unconstitutional policy and has brought the idiocy of campus “Free Speech Zones” back into the national limelight. Holly doesn’t suggest throwing away all restraints on speech (exempting classrooms and faculty offices in order to prevent disruption of educating), but his view of what a “Free Speech Zone” should actually include covers far more area than MJC’s infamous concrete slab.

Holly’s defense of students’ rights is a rarity in institutes of higher learning, many of which seem to believe the restraint of speech somehow creates better students.

Full email posted at link.

November 2, 2013 Posted by | Civil Liberties, Solidarity and Activism, Timeless or most popular | , , , , , , , | Leave a comment

California man faces 13 years in jail for scribbling anti-bank messages in chalk

RT | June 26, 2013

Jeff Olson, the 40-year-old man who is being prosecuted for scrawling anti-megabank messages on sidewalks in water-soluble chalk last year now faces a 13-year jail sentence. A judge has barred his attorney from mentioning freedom of speech during trial.

According to the San Diego Reader, which reported on Tuesday that a judge had opted to prevent Olson’s attorney from “mentioning the First Amendment, free speech, free expression, public forum, expressive conduct, or political speech during the trial,” Olson must now stand trial for on 13 counts of vandalism.

In addition to possibly spending years in jail, Olson will also be held liable for fines of up to $13,000 over the anti-big-bank slogans that were left using washable children’s chalk on a sidewalk outside of three San Diego, California branches of Bank of America, the massive conglomerate that received $45 billion in interest-free loans from the US government in 2008-2009 in a bid to keep it solvent after bad bets went south.

The Reader reports that Olson’s hearing had gone as poorly as his attorney might have expected, with Judge Howard Shore, who is presiding over the case, granting Deputy City Attorney Paige Hazard’s motion to prohibit attorney Tom Tosdal from mentioning the United States’ fundamental First Amendment rights.

“The State’s Vandalism Statute does not mention First Amendment rights,” ruled Judge Shore on Tuesday.

Upon exiting the courtroom Olson seemed to be in disbelief.

“Oh my gosh,” he said. “I can’t believe this is happening.”

Tosdal, who exited the courtroom shortly after his client, seemed equally bewildered.

“I’ve never heard that before, that a court can prohibit an argument of First Amendment rights,” said Tosdal.

Olson, who worked as a former staffer for a US Senator from Washington state, was said to involve himself in political activism in tandem with the growth of the Occupy Wall Street movement.

On October 3, 2011, Olson first appeared outside of a Bank of America branch in San Diego, along with a homemade sign. Eight days later Olson and his partner, Stephen Daniels, during preparations for National Bank Transfer Day, the two were confronted by Darell Freeman, the Vice President of Bank of America’s Global Corporate Security.

A former police officer, Freeman accused Olson and Daniels of “running a business outside of the bank,” evidently in reference to the National Bank Transfer Day activities, which was a consumer activism initiative that sought to promote Americans to switch from commercial banks, like Bank of America, to not-for-profit credit unions.

At the time, Bank of America’s debit card fees were among one of the triggers that led Occupy Wall Street members to promote the transfer day.

“It was just an empty threat,” says Olson of Freeman’s accusations. “He was trying to scare me away. To be honest, it did at first. I even called my bank and they said he couldn’t do anything like that.”

Olson continued to protest outside of Bank of America. In February 2012, he came across a box of chalk at a local pharmacy and decided to begin leaving his mark with written statements.

“I thought it was a perfect way to get my message out there. Much better than handing out leaflets or holding a sign,” says Olson.

Over the course of the next six months Olson visited the Bank of America branch a few days per week, leaving behind scribbled slogans such as “Stop big banks” and “Stop Bank Blight.com.”

According to Olson, who spoke with local broadcaster KGTV, one Bank of America branch claimed it had cost $6,000 to clean up the chalk writing.

Public records obtained by the Reader show that Freeman continued to pressure members of San Diego’s Gang Unit on behalf of Bank of America until the matter was forwarded to the City Attorney’s office.

On April 15, Deputy City Attorney Paige Hazard contacted Freeman with a response on his persistent queries.

“I wanted to let you know that we will be filing 13 counts of vandalism as a result of the incidents you reported,” said Hazard.

Arguments for Olson’s case are set to be heard Wednesday morning, following jury selection.

June 26, 2013 Posted by | Civil Liberties, Corruption, Full Spectrum Dominance | , , , , , | 1 Comment

First Amendment Violations to Watch for at the RNC and DNC

By Jay Stanley, ACLU Speech, Privacy and Technology Project | August 22, 2012

We know that photographers have been having problems all over the country with police harassment, and that demonstrators’ free speech rights have also been under assault. But with the Democratic and Republican political conventions coming up, we have all too much reason to expect that free speech rights will be swallowed up in the vortex of those events, which have become constitutional black holes in recent years.

Chris Hansen, our senior First Amendment attorney, has been litigating First Amendment cases for many years, including landmark cases such as Reno v. ACLU, and a number involving the free speech rights of protesters. I asked him to give me an overview of the situation, and he said that we’ve been seeing three big problems that come up increasingly at all these kinds of events:

1) “Free Speech Zones.” People wishing to express themselves are being sent to distant locations—euphemistically called “Free Speech Zones”—so they are inaccessible to the audience at the event. (There is one legitimate Free Speech Zone we don’t have a problem with, it’s called the United States of America.)

2) Arrests. People are simply being swept up and arrested, essentially for no reason at all, in order to clear the streets. Cities figure that they can just deal with the ensuing litigation later. They don’t much care that they don’t have grounds to arrest people, they just sweep the streets.

3) Surveillance. Unjustified surveillance is common, both prior to and during the event. Recent stories suggest that there is a lot more infiltration of protest organizers taking place than we had realized at first. But then there’s also the surveillance that takes place at the event, where often everything is filmed. Even worse are the new restrictions on what you can carry into the demonstrations, which give the police the authority to search you as you go in.

These rights violations are happening repeatedly, despite lawsuits that are filed and won after the event is over. Chris tells me, “the cities view it as a cost of doing business.”

Consciously and intentionally violating the law and Constitution is apparently viewed as a legitimate tactic by the same police and officials who are supposed to be enforcing the law. Chris Hansen adds,

It’s an accelerating pattern, and a remarkably consistent pattern. In other words, there don’t seem to be significant city-by-city variations in police behavior; there seems to be a playbook for police departments that they’re all using.

Chris says that when attorneys for protesters try to seek legal protection in advance, the cities respond by using various tricks they have learned to get around legal oversight. For example, with respect to the free speech zones, he says:

We’ve tried. Part of the problem is the city often won’t tell you until the last minute where you’ll be allowed to demonstrate. So if you go into court six months before the event, the city says, “we haven’t made any decisions yet,” and the judge says “well, how can I decide this in the abstract?” But if you wait for the police to announce the location right before the event, the judge often says, “I don’t have time to second-guess the city, I’m just going to let it go.”

So the cities have learned that if they keep the location information secret up until the very last minute, for the most part judges aren’t going to second-guess their decision, so they end up sending you six miles away, under a bridge. That’s the classic example, in Boston, where they were literally under the highway.

It’s sad and ironic that the political conventions, which at some level are supposed to represent democracy and freedom, have become empty, stage-managed, institutionalized, Soviet-style show events, while simultaneously becoming the occasion to sell out real individuals’ actual, ground-level free speech rights as a “cost of doing business.”

August 22, 2012 Posted by | Civil Liberties, Solidarity and Activism, Timeless or most popular | , , , , , , | Comments Off on First Amendment Violations to Watch for at the RNC and DNC

Student Photographer’s Arrest: Snapshot of Systemic Police Abuse

By Linn Washington Jr. | This Can’t Be Happening | March 29, 2012

I don’t know Temple University photojournalism major Ian Van Kuyk, despite his enrollment in Temple’s Journalism Department, where I teach.

I do know that dynamics embedded in the recent arrest of Van Kuyk by Philadelphia police–an arrest now generating news coverage nationwide–provide yet another snapshot of the systemic abuses I’ve reported and researched during three decades spent documenting the lawlessness endemic among law enforcers.

Philadelphia police roughed-up and arrested Van Kuyk for his photographing a police traffic stop taking place in front of his apartment. The arrest of Van Kuyk violated Philadelphia Police Department directives permitting such photographing as well as court rulings and constitutional rights.

Police harassing citizens lawfully documenting police activities taking place in public is a “widespread and continuing” problem according to the ACLU.

“The right of citizens to record the police is a critical check and balance,” an ACLU analyst noted during a September 2011 speech where he referenced six incidents in five cities of police arresting citizen photographers during just the spring of last year.

Yes, police attacking civilians for lawfully photographing public spaces, police routinely employing unlawful excessive force and prosecutors too frequently turning a blind eye to such police misconduct are all nationwide problems.

Systemic abuses by police and the prosecutors that condone such misconduct corrode public confidence in the justice system and cost taxpayers millions of dollars spent on settling lawsuits alleging illegalities by police.

Historically, abuses by police and particularly those by prosecutors receive short-shrift from most elected officials.

Just a few days before the alleged March 14, 2012 abuse of Van Kuyk, an artist filed a federal lawsuit against a Philadelphia policeman for roughing her up when arresting her less than two miles from the Van Kuyk incident. When arrested that artist was lawfully creating an outdoor artwork.

In January 2012, the City of Philadelphia settled another lawsuit filed against the same artist-arresting policeman, with the City agreeing to pay a woman $30,000. She alleged that the officer had “violently manhandled” her – breaking her nose and spraining her wrist during a sidewalk encounter.

Abundant evidence now implicates a police-prosecutor abuse angle in the Florida fatal shooting of teen Trayvon Martin by 28-year-old George Zimmerman.

The evidence is clear that Sanford, FL police officials acted in incomprehensible variance with established procedures in their handling of that fatal incident, seemingly proceeding in ways calculated to support Zimmerman’s self-defense claim.

And evidence indicates those police officials plus prosecutors rejected a Sanford Police detective’s request to arrest Zimmerman for manslaughter – a management decision that appears to demonstrate less concern for victim Martin than for shooter Zimmerman, whom the evidence shows ignored police orders to not confront Martin, only to have him then claim he shot Martin in self-defense.

The incident producing the arrest of Van Kuyk and outrage from the general counsel of the National Press Photographers Association (NPPA) about gross violations of this young photojournalist’s First Amendment rights occurred in a section of South Philadelphia.

Of course there are two sides: in this case the account advanced by arresting officers and accounts from Van Kuyk, his girlfriend (also arrested that night) and a few of their neighbors who witnessed the events.

The only points of agreement between the two versions are that police were questioning one of Van Kuyk’s neighbors outside the South Philadelphia apartment where Van Kuyk lived, and that the budding photojournalist began photographing that encounter.

Philadelphia police are now re-investigating the incident in the wake of criticism and critical news coverage.

According to Van Kuyk, Philly police, after demanding that he stop photographing them, and after their dismissing his First Amendment protests, snatched Van Kuyk up, slammed him to the ground, swept him off to a police station for a nearly 24-hour detention, and eventually slapped him with a slew of charges, including disorderly conduct, resisting arrest and obstruction of justice.

How was Van Kuyk ‘obstructing justice’ if, as an NPPA letter to Philadelphia police contends, Van Kuyk “never came closer than ten feet” to the police? That letter notes that Van Kuyk “voluntarily backed up” when ordered by police before a policeman “approached [him] in an aggressive manner demanding that he stop taking pictures.”

Police also arrested Van Kuyk’s girlfriend, detaining her for 19-hours, also slamming her with trumped-up charges. Her arrest arose from her trying to retrieve Van Kuyk’s school-issued camera.

At the core of this incident we see some Philadelphia police failing to follow clearly stated department policy. A Philadelphia Police Department directive issued in September 2011 bars officers from arresting people for “photographing, videotaping or audibly recording police personnel [conducting] official business… in any public space.”

The “Purpose” listed on that policy, Memorandum (11-01), was to “remove any confusion as to duties and responsibilities” when police find themselves subjected to recording devices.

That National Press Photographers Association letter to Philadelphia’s Police Commissioner, raising the First Amendment, stated “It is truly abhorrent that not only did your officers abrogate that right [they] chose to add insult to injury by overcharging Mr. Van Kuyk with offenses he did not commit.”

Given that red-line PPD policy directive, police supervisors and prosecutors should have immediately pulled the plug on the charges against Van Kuyk and his girlfriend, but they didn’t.

Prosecutors pressed the flawed-arrest-related charges against Van Kuyk’s girlfriend, extracting their pound of flesh by forcing her into a program requiring 12-hours of community service and paying a $200 fine in exchange for their dismissing those flawed charges.

Van Kuyk is awaiting his preliminary hearing and possible trial.

The prosecution of Van Kuyk’s girlfriend and his pending charges are a stain on both the ethical duty of prosecutors to seek justice and Professional Conduct rules for prosecutors restricting prosecutions “not supported by probable cause.”

Someone somewhere in Philly’s prosecutor’s office should have questioned the questionable if not totally bogus charges arising from arrests prompted by police violating their department policy.

Philadelphia police spokesmen proclaim that the arresting officers knew about that directive protecting First Amendment activity, but contend that “other things happened… that caused the officers to make an arrest,” according to widely reported media accounts.

The Philadelphia Police Department’s record of abusive misconduct, however, casts a dark shadow on the department’s contention that “other things happened,” as do eyewitness accounts.

This incident involving Van Kuyk is hauntingly similar to an August 1972 incident that occurred just ten blocks from Van Kuyk’s apartment. In that 1972 incident, a minister questioning police for pummeling a man outside his house triggered a home-invasion, with police ransacking the minister’s home and arresting him, his wife, his daughter and a house guest from Germany.

As with the Van Kuyk case, the assaulting police hit Rev. Joseph Kirkland, his family and house guest with a slew of charges, including disorderly conduct and interfering with a police officer.

Philly prosecutors pressed those charges, which police had concocted to cover-up their criminal assault on Kirkland’s house, but a judge quickly dismissed them.

Philly’s then top prosecutor, Arlen Specter, later a US Senator and top Senate Judicial Committee member, rejected widespread demands to prosecute those offending police officers for their criminal conduct against Rev. Kirkland and his family.

Specter recently released a book criticizing the dysfunction in contemporary partisan politics – an ironic argument coming from someone who once shirked his ethical and professional duties by ignoring outrageous misconduct and abusive behavior by police and prosecutors.

Months after that August 1972 incident, a federal judge in Philadelphia issued a ruling in a class-action police brutality lawsuit in which he criticized arrests without probable cause.

That judge noted that those most likely to be targeted for police abuse are individuals who had the audacity (but legal right) to challenge their initial police contact.

I guess certain abusive practices are just embedded in Philadelphia Police Department culture.

So are a 1972 incident and 1973 court ruling ancient history?

Well, that ’72 incident and ’73 court ruling implicated issues animating the Van Kuyk incident.

Meanwhile, a Maryland man in 2010 avoided a possible 16-year prison term for posting a video on YouTube showing a plainclothes state trooper brandishing a pistol when he stops that man for an alleged speeding violation.

A Maryland judge dismissed the criminal charges filed against that motorcyclist wearing a helmet cam in a ruling reminding police and prosecutors that public officials are “ultimately accountable to the public” and public servants should not expect their action to be “shielded from public observation.”

Philadelphia prosecutors need to drop the charges against Van Kuyk and reverse the proceeding against his girlfriend.

Further, authorities nationwide need to crack down on misconduct by police and prosecutors.

See also:

March 30, 2012 Posted by | Civil Liberties, Deception, Subjugation - Torture, Timeless or most popular | , , , , , , | 1 Comment