Limiting Certain Types of Speech on Campus

Early on the evening of Nov. 12, 2002, Steven Hinkle got himself into a heap of trouble. He was then in his third year as a student at California Polytechnic State University in San Luis Obispo. Four months later, university authorities found him guilty of “disrupting a campus function.” Was it a bum rap?

Hinkle is now a senior at Cal Poly, majoring in industrial technology. He is president of the Cal Poly College Republicans, a chartered student group recognized as such by the university. A year ago the club invited C. Mason Weaver to speak under its auspices on a campus lecture series. He accepted. The club properly scheduled the event. Weaver is a conservative black writer, the author of “It’s OK to Leave the Plantation.” In his book he contends that government has become a kind of plantation master, enslaving many elements of society through public subsidies.

To publicize the event, Hinkle prepared some fliers: “Come hear Mason Weaver.” The fliers carried a picture of the author, the title of his book, and the date, time and place of his talk. The posters provoked some discussion, but no serious incident. Then, on the day before the scheduled lecture, Hinkle went to the University Union to continue his posting.

In the multicultural lounge area frequently used by students for casual socializing was a bulletin board with room for his 9-by-11-inch flier. Six or seven minority students were in the lounge. At a disciplinary hearing on Feb. 19 they would assert that they had gathered for a meeting of their Bible study group. As Hinkle attempted to post his notice, a black student objected. “Don’t put that up in here!” she said. “Take that elsewhere or I will call public safety.” Another of the students testified at a closed hearing in February that she added, “That’s very disrespectful. Don’t disrespect me!” When Hinkle asked if they could “sit down and talk about it,” she went to a telephone and called campus police. She complained that a white male was distributing offensive literature.

While she was calling, Hinkle argued defensively with the other students. After five to seven minutes, he left the scene, taking his fliers with him. Officers soon arrived to investigate the incident. Formal charges of “disruption” led to the seven-hour hearing in February. Hearing Officer Robert Griffin found Hinkle guilty and ordered him to make a public apology. Earlier he had been told to attend two sensitivity sessions with the university’s ombudsman.

Unwilling to apologize for what he regards as an exercise of his right of free speech, Hinkle is fighting back. With the support of the Center for Individual Rights in Washington, D.C., he has filed suit against the university in U.S. District Court in Los Angeles. He also is getting help from the Foundation for Individual Rights in Education (FIRE) in Philadelphia. He wants the disciplinary action expunged from his university record.

FIRE has prepared a 23-page abridged transcript of the February hearing. Some points stand out. Hinkle was found guilty of “disrupting” a “campus function.” But at least until the campus police arrived, the disruption was trivial and there was no “function” in progress. Unlike the College Republicans, the Bible study group was not a chartered club. It had posted no notice of a scheduled meeting. Hinkle saw no Bibles anywhere. When he came in, as his principal accuser admitted, “we were just sitting around having our pizza.”

The university will have its chance in court to prove that it is punishing Hinkle only for “contentious” conduct. Maybe so, but the Cal Poly provosts will have to overcome the sound principles laid down in a famous case from Chicago half a century ago. This was the case of Father Arthur Terminiello, a suspended Catholic priest whose pro-fascist speech incited a rock-throwing, window-breaking riot. He was fined $100 for speech that “stirs the public to anger, invites dispute.”

The Supreme Court reversed. One function of free speech, said Justice William O. Douglas, “is to invite dispute.” Speech may be punished only if it presents “a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance or unrest.” Hinkle’s innocuous fliers fall far below that standard.

I agree that somebody at Cal Poly owes somebody a public apology. Perhaps the provosts will also be ordered to attend two sessions in constitutional law.