The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

Stanford Message to Students About Protests


Sent out yesterday:

This post provides an update from Stanford University about the encampment recently set up on Stanford's White Plaza. It follows the message sent to students by the president and provost last Friday, April 26. Additional updates will be posted to this page as needed.

Stanford welcomes and encourages the peaceful expression of free speech by members of our Stanford community. Students have been pursuing many opportunities to do so over the course of this year, in a variety of ways. Among other options, student groups are welcome to engage in advocacy on White Plaza in a manner consistent with campus policies. There is a process for registering to do so, in order to allow for equitable access to this space by members of our community.

Alongside its support for the peaceful expression of free speech, the university has viewpoint-neutral time, place, and manner policies. Among these are policies regarding the use of White Plaza, prohibiting overnight camping, and prohibiting the disruption of classes and university events.

With respect to the encampment on White Plaza, the university is continuing to submit names of students who are violating campus policies to the Office of Community Standards (OCS) for disciplinary proceedings. This is being done in a viewpoint-neutral manner and based on evidence of students' conduct in violation of university policy. Students who are involved will have the opportunity to provide a defense to OCS.

Stanford also is concerned about the involvement of non-student outsiders in these activities on our campus. We continue to remind visitors that their participation in activities that violate university policy may subject them to criminal and/or civil liability.

We have received many expressions of concern about a photo circulating on social media of an individual on White Plaza who appeared to be wearing a green headband similar to those worn by members of Hamas. We find this deeply disturbing, as Hamas is designated a terrorist organization by the United States government. We have not been able to identify the individual but have forwarded the photo to the FBI.

As it has throughout the last months, Stanford is working to manage these issues in a deliberate manner that supports the safety of our students and of our campus community. As our students work toward the completion of their studies this spring quarter, and many look forward to graduation in June, we intend to continue working to support peaceful expression, to support the rules that govern our campus, and to support a safe environment for all.

Friday's message also links to the policies that "prohibit disruptions of classes and university events" and "prohibit[] overnight camping," and adds:

These policies are important to supporting the academic and scholarly activities on campus and to supporting the safety of our community. As we have previously explained, tents and overnight camping pose multiple safety challenges, including the need for 24-hour security since the physical layout of our campus makes it easily accessible to outsiders, some of whom may come with bad intentions. The tents themselves can also pose safety hazards, as was discussed in winter quarter. Students were reminded of these policies in a message earlier this week. We encourage the daytime use of White Plaza for free expression as long as the conduct is consistent with university policies, which require reservations for groups and only allow tables and not overnight tents or other materials.

Private universities in California, such as Stanford, are governed by the Leonard Law, a California statute that provides, in relevant part,

No private postsecondary educational institution shall make or enforce a rule subjecting a student to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside the campus or facility of a private postsecondary institution, is protected from governmental restriction by the First Amendment ….

But content-neutral time, place, and manner speech restrictions—including prohibitions on overnight camping in public parks and restrictions on speech that disrupts educational institutions—are permissible "outside the campus," and thus would be allowed on campus as well; and the statute itself (in a part that doesn't appear in the California Education Code, but remains part of the law) expressly acknowledges this:

The Legislature finds and declares the following: … Free speech rights, both on and off campus, are subject to reasonable time, place, and manner regulations.

(To be permissible, the policies likely have to be not just "viewpoint-neutral," but content-neutral, so that content-based distinctions based on subject matter, use of profanity, and the like are generally unconstitutional even if they are viewpoint-neutral. But it sounds like the relevant Stanford policies are indeed content-neutral.)

Note that wearing a green headband as a sign of support for Hamas would remain constitutionally protected speech (as would wearing a swastika or the like); punishing a student for doing so would be based on content and indeed on viewpoint, and would thus generally not be allowed under the Leonard Law. Of course, being an actual member of Hamas is a federal crime, since Hamas is indeed a designated foreign terrorist organization, and joining such an organization constitutes criminal provision of material support to the organization.

I'm skeptical that simply wearing the headband is much of a basis for the FBI to investigate, but I don't think there's a First Amendment (or state law) problem with such an investigation; the government can (at least under the First Amendment) investigate someone based on constitutionally protected speech, even if the person can't be prosecuted based just on that speech.