Department of Justice Doubles Down on Campus Free Speech

The Department of Justice (DOJ) issued its second “statement of interest” Tuesday in support of students fighting against restrictions on free speech in higher education.

“Last month, I promised a recommitment to free speech on campus and to ensuring First Amendment rights. The Justice Department continues to do its part in defending free speech, protecting students’ free expression, and enforcing federal law,” Attorney General Jeff Sessions said in a press release accompanying the action.

Kevin Shaw, a student at Los Angeles Pierce College, is suing the Los Angeles Community College District after, he alleges, he was told to leave campus for setting up a table to hand out Spanish-language copies of the United States Constitution outside Pierce’s “Free Speech Area.” According to Shaw’s complaint, a large protest was allowed in the same area he distributed Constitutions with no consequences. As the DOJ puts it in its statement of interest, “[T]he College enforces its speech restrictions ‘selectively and unevenly’ by allowing speech outside the designated area in some instances but prohibiting it in others.”

A statement of interest is a legal brief expressing that the United States considers there to be a major constitutional interest at play in a case to which it is not a party. Here, the DOJ, in 27 pages, makes the case that it believes Shaw has made an adequate showing that his First Amendment rights were violated by Pierce College’s policies and their application, arguing:

Mr. Shaw’s allegations, if proven, demonstrate that Pierce College’s speech policies and practices, which the College applied to deny Mr. Shaw his right to engage in expressive activity in a public forum, imposed prior restraints that were not narrowly tailored to further a significant government interest and failed to provide other alternative channels of communications.

Attorney General Jeff Sessions has made free speech on campus a focus of his department’s civil rights litigation. “University officials and faculty must defend free expression boldly and unequivocally,” he said in a press release.

Last month, the DOJ issued a statement of interest in a similar campus free speech lawsuit, Uzuegbunam v. Preczewski. On the same day, Sessions agreed to speak before conservative and libertarian law students at Georgetown University Law Center on the topic of free speech on campus.

Predictably, dozens of other students and faculty protested the event, saying it was inappropriate for Sessions, the U.S. attorney general, to speak at a law school. “You cannot invite people who so thoroughly threaten the basic premises of American law to a campus and not speak up if your mission in life is to educate people about the American legal system,” Professor Heidi Li Feldman said at the time.

This case is Shaw v. Burke, 2:17-cv-02386-ODW-PLA, pending the U.S. District Court of the Central District of California.