Responding to a May 4 letter sent by Northern California’s American Civil Liberties Union and the First Amendment Coalition that alleges Cal Poly Humboldt’s closure of campus was “constitutionally suspect,” the university hired a prestigious law firm to draft a response.
The three-page letter, sent to the Times-Standard and other media Tuesday, responds to specific claims in the ACLU letter.
Closure of campus
In the May 4 letter, Chessie Thacher, senior staff attorney of the ACLU Foundation of Northern California and David Loy, legal director of the First Amendment Coalition, wrote, “We believe that the university’s policy limiting public access — and especially press access — is constitutionally suspect. We recognize that this closure has been asserted in response to the recent civil unrest and involvement of law enforcement at Cal Poly Humboldt, but it is precisely in these moments that reporting by a free press is essential. We urge you, in the strongest possible terms, to lift this campus-wide closure.”
The ACLU letter argued Cal Poly Humboldt’s quads constitute a public forum and therefore must satisfy constitutional review in closures. It cites another case that found complete bans on access to public places must be “narrowly tailored” and the activity within the proscription’s scope is an “appropriately targeted evil.”
“Simply put: the university’s 24-hour ban on public access continuing day-to-day for days on end is the opposite of ‘narrowly tailored,’ ” the writers said.
Stephanie G. Herrera, of Munger, Tolles and Olson LLP, argued in Tuesday’s response that this “framing is incorrect in at least two important respects.”
“The law is clear that Cal Poly Humboldt ‘may close’ even a designated public forum ‘whenever it wants,’ ” she wrote, citing a case the ACLU writers also cited in their letter, and said that because the entire campus is closed, courts would have to evaluate restrictions on speech on of a forum-by-forum basis.
Herrera writes, “Although the university needs no reason, there is no debating its content- and viewpoint-neutral reason in this instance: The university closed the entire campus, in part, to address serious safety issues and the takeover of multiple university buildings by students and nonstudents, resulting in extensive damage to university property and a significant disruption of normal campus operations.”
Press access
Press access is a major concern in the ACLU’s letter. The university claimed the area around Siemens hall was a “crime scene,” which is why press, faculty and the public were barred from entering through chain link fences, though facilities staff could be seen painting over graffiti and driving around in maintenance vehicles in the “crime scene.”
“The press does not have a constitutional right to access crime scenes,” Herrera wrote in the letter.
In the week following hundreds of riot police descending on Cal Poly Humboldt protesters, police refused press access. Media had to follow a university policy to check in with university officials to gain access to the rest of campus behind police checkpoints.
This policy was called out by the ACLU’s letter writers, who wrote “Given the strong legal principles favoring press access, Cal Poly Humboldt’s recently distributed Process for Media Access is far too limited,” specifically, requiring press credentials and a time window from 7:30 a.m. to 2 p.m. that press could enter.
Herrera’s response noted “no requests for media access have been denied,” and argued the cases cited by the ACLU that press should have increased access in instances like the operations of government or emergencies in order to report to the public do not apply.
She also noted that four days after the ACLU letter was sent, the university eliminated the media policy.
Outcry over response
Multiple campus groups joined the ACLU in decrying the ongoing closure. For weeks now Cal Poly Humboldt has remained closed or limited access to facilities, with Humboldt’s California Faculty Association and General Faculty calling for a reopening of the campus in the weeks following the start of the protest.
Herrera notes there are aims to reopen campus May 28, “even in the face of ongoing criminal activity and threats to university property.”
Cal Poly Humboldt stuck out among the nationwide university protests as fairly unique in closing the entirety of school the same day the occupation of Seimens Hall began. The closure extended multiple times, resulting in graduation ceremonies moving off campus and remote instruction.
“Students, faculty, and members of the public are not an evil to be guarded against or silenced. Keeping them away from campus while the academic year is still underway is disruptive and punitive to the entire school community. Excluding these individuals from campus also contravenes the university’s stated commitment to ‘affording all members of the University community the protections of freedom of speech, expression, assembly, religion, and press available under the U.S. and California Constitution,’ ” the May 4 letter said.
Legal team
MTO is an elite law firm whose clients includes Transocean, owner of the Deepwater Horizon drilling rig in litigation over the 2010 oil spill in the Gulf of Mexico, Plains All American Pipeline in an oil spill in California, Disney and six other major companies in a copyright lawsuit, PG&E, the University of California and more, according to the firm’s website.
Sage Alexander can be reached at 707-441-0504
