- [Narrator] Funding for Utah Insight is made possible by viewers like you, thank you.

- [Liz] Next on Utah Insight, politics on college campuses.

We dive into the heated debates surrounding freedom of speech.

- The fact that this particular moment has seen such widespread police response should actually alarm people.

- Join us as we gather experts to explore this issue from a legal, ethical, and historical perspective.

(bright music) Welcome to Utah Insight I'm Liz Adeola.

More than 3,100 people across the US have been arrested or detained while protesting the Israel-Hamas war on college campuses and I'm not talking about the total number for the school year.

According to the New York Times, they say that number is just since mid-April of this year.

Staff at the Times created this map to show you where those detainments and arrests occurred and today we're starting off by focusing on this spot right here in Utah while discussing the state of politics on college campuses.

The United States has a long history of student protestors.

Think of the Vietnam War and even farther back, the fight for women's suffrage.

So what's changed when it comes to freedom of speech on college campuses?

BBS Utah's Cailley Chella covered a protest at the University of Utah and set out to find answers.

- Over the past few months, student protests over the disproportionate killings of Palestinians in the Israel-Hamas War have erupted across the nation, including on this lawn at the University of Utah campus.

Students say they're exercising their constitutional rights.

- [All] There is nobody here.

Why are you invited here?

- Students showed up to the University of Utah to demand that our university be accountable to the students in the community.

So we were just calling on the university to like disclose all your ties with Israel, divest completely from Israel, and cut all ties with war profiteering companies.

It was a peaceful protest.

We have a First Amendment right.

We weren't doing anything like property damage or anything like that.

- [Cailley] Among other things, the First Amendment guarantees that Congress shall not abridge the freedom of speech or the right of the people peaceably to assemble.

So while the government cannot prohibit free speech and protests, leaders from Mecha de U of U, a political student organization, argue that institutions like the University of Utah are violating their rights.

- I would like to believe that we have the freedom of speech, being able to say what we want, criticize the university when we know the university is complicit in the genocide.

And on that day, it's kind of was kind of showing that like, hey, we don't have that freedom.

Even if they tell us we do or why we get brutally dispersed, beat up, kicked out.

- [Cailley] The student led movement in Utah was sparked at Columbia University when students set up camp back in April.

Since then, there have been more than 100 encampments on university campuses in the US alone.

And experts say the First Amendment does apply to protests on campus.

- Universities are required to respect students' First Amendment rights, and they can only restrict their expressive activity under certain circumstances.

- [Cailley] Circumstances like breaking the law, which is what the University of Utah says is what happened.

- [Speaker] So university policy and state administrative law is really clear.

There is no overnight camping on campus that's not sanctioned by the school.

- I don't believe the institutio in denying anybody their first speech or first amendment rights.

We just engaged in those that were unlawfully protesting.

- When you look at the other encampments across the United States, they were there for like a lot longer than we were.

But here it was completely different.

They attacked us the first day brutally.

I think the moment really sticks with me.

I was really upfront, I had my hands up.

We were chanting saying like, there is no violence here.

Like, why are you guys in riot here?

And after getting hit a couple times, seeing my friends fall down and I kind of just recognize like, okay, this is like a really dangerous moment.

- Certainly the cases that have made the front page news, I think we would struggle to call any of those a success, right?

What we've seen instead is the criminalization of student protests, the use of excessive force on college campuses, and the calling in not just of campus police, but of city police and state troopers that has caused violence.

- [Cailley] Still, the University of Utah stands by the outcome of their students' pro-Palestinian protest.

- The protest was fine, the words are fine.

It's when the tents went up around 5:15, 5:30 that evening.

That is when the law was broken.

And that's what started the cascading effects of asking law enforcement or having law enforcement do their duty to break that up.

- [Cailley] When it comes to the encampments here at the University of Utah, there have been actual protests where camps were allowed to stay.

- In 1986, a bunch of University of Utah students joined national protests in setting up little shanty towns in the middle of their campus to protest university investments and companies doing business in South Africa as a way to protest the institutional racism.

We were there all day and all night, night after night for months before the university said, okay, we'd like these to go away now please.

And we said no and they said, we insist.

And so we sued them in federal court.

- [Cailley] The judge sided with the students, but he also advised the university to enact some time, place, and manner restrictions for future protests.

And it seems like maybe they have.

- 35 years later, we've implemented different... We follow the law, that's all I can say.

- There may be multiple purposes for why a government enacts in ordinance, some of them legitimate and some of them not and a lot of times, the proof is in the pudding in terms of how it's actually enforced.

- [Narrator] But the activists are undeterred.

- As long as Palestine is under occupation, as long as our government is funding genocide, we're still gonna be here.

- Norda Penya says they're taking the summer to strategize and organize to come back even stronger in the fall.

For PBS Utah, I'm Cailley Chella reporting.

- The University of Utah released the total number of people arrested from the two protests in April.

21 people were arrested with 15 of those unaffiliated with the university.

Five were current students.

One was an employee of the University of Utah, and they did not release an exact number, but a few of the protesters who were arrested were former University of Utah employees.

Now we're gonna unpack what we just saw in just a moment, but first let me introduce our panel of experts who will join us.

Joining us now, we have attorney and legal analyst from Scortis in Caston LLC, Greg Scortis, ACLU of Utah, communications Director Aaron Welcher, and the Commissioner of the Utah Board of Higher Education, Geoffrey Landward.

Thank you all for being here today.

Aaron, I wanna start with you.

What are your takeaways from that story?

- Yeah, the number one takeaway, and this is what we said from the start, is that the overuse of police escalated the situation from the start.

As many of the people who are interviewed for that segment said there is a first Amendment right.

While there is, and like the case that was cited, time, manner, and place does apply as long as it's applied in a non-discriminatory fashion.

As soon as we're seeing that speech, certain speech is being discriminated against, that is a viewpoint censorship.

So with those two things in mind, we really saw a huge escalation over at the University of Utah and the way that the protests were addressed.

- I'm gonna follow up on that question in just a bit, but first Jeff, I want your takeaways, Geoffrey, what were your thoughts after seeing that story?

- Well, I think it's a very good encapsulation of the debate and really I see two viewpoints here.

One is that you have a university, like all universities in our country that serve as the marketplace of ideas, that they're supposed to be the forum for these debates and that includes people having a right to come protest.

I think what's a little bit disappointing in the story is that what wasn't highlighted was the great pains that the university went to, to ensure that the students understood how welcome they were on that campus to protest, that they could protest for as long as they wanted, and that as long as they do within the guardrails that were put in place by the time, place, manner restrictions, that they were welcome to do that.

In fact, the message to the students was, you can stay all night, you can stay for a week, but you cannot camp, you cannot put up structures, you cannot do the things that violate these time, place, and manner restrictions.

The university went to great pains to communicate all of that to those students.

It had nothing to do with the message that the students were sharing.

It had everything to do with the reason why we have the ability to have time, place and manner restrictions.

And that is, as a marketplace of ideas, you want to host debates, you want to host protests, you want to ensure people can express their viewpoints and engage in a debate and do so safely.

But the university is also a place of learning and a place of research.

And that means that on a day-to-day basis, the university has to teach, students has to engage in research.

The reason why time, place, and manner restrictions are available and allowed under the law is to ensure that the university can maintain that core mission.

We have to be able to teach without disruption.

We have to be able to research without disruption, and we have to be able to have debate on campus without disruption.

That's the purpose of time plays a manner restrictions is to ensure you can do all of those things together and that no one's right, whether it's a right to come and learn and be taught because you paid tuition, you've been admitted, you're there to learn, you're there to be able to go to class.

No one has a right to take that away from you.

But we also don't have a right to restrict speech unless it's within what the law allows.

And so I look at this story and I see the difficulty of the problem and that is, we wanna make sure that they can protest.

We wanna make sure that their message is heard.

We wanna make sure that their rights are protected, but we wanna also make sure that the institution's mission is protected.

Sometimes those come into conflict and that that's why this is a difficult problem.

- Yeah, Cailley touched a little bit on some of the university's efforts.

Before things escalated, leaders from the University of Utah shared that there were announcements on loudspeakers saying the university recognizes students' right to free speech, but pointing out that protestors were breaking the law, asking them to leave.

On the second day flyers that you can see on your screen were handed out on campus before the protest and you can see there a list of dos and don'ts next to that, explaining what qualifies as an unlawful protest.

Greg, I wanna toss it to you.

Can you talk about the evolution of protests on college campuses and now it seems like there's a whole slew of laws and regulations that protestors have to research beforehand.

- Well, and I think universities didn't have much choice but to do that.

I mean, my history, I guess I'm the the oldest person in the room here, it goes back to the Vietnam War.

When you mentioned women's suffrage, I thought, well, wait a minute.

I'm not quite old enough to remember when we were protesting that, but yeah, the Vietnam War, but that was different and I say this with all deference to what's happened at the U and these other schools.

I mean, we were protesting a national disaster.

We protesting the war itself.

In these protests, it seems that we're protesting the acts of the university in being involved in funding or statements or anything that has to do with a certain religion or country.

And so it's a different kind of protest.

Plus, like Jeff said, we learned from history and we said, okay, you can't just go and arrest people who are hanging out at your campus anywhere than they could arrest the homeless people in Grants Pass, according to the Supreme Court last week.

You have to set some rules.

You have to set some guidelines.

And so time, place and matter.

Let's decide you can protest, you can peacefully protest.

I didn't realize that they had even been not invited, but told that that could include overnight, just don't set up a camp.

To me, that seems reasonable and it seems like something that the university had the right to do.

Now Aaron mentions the huge police presence, but I don't know that Salt Lake City had a choice because the alternatives, you have three guys show up and they're overrun by the protesters, and then it looks really bad.

So maybe a little bit of overstatement by the police.

I didn't really like some of the actions that were going on, but at some point, I mean, the police can't just stand there and say, okay, you're going to break the law.

We're just gonna sit here and watch you.

- Aaron, from a protester's perspective, checking all the boxes and crossing all of the T's beforehand, asking permission almost to protest from the people who you are protesting against or speaking out against, it can seem like that's what is...

They're telling people to do.

Are there legal protections for people when going these routes?

You said that they should be allowed to protest without facing that discrimination.

How do you point that out or argue that, is there any kind of legal protection for these protestors?

- Yeah, so I think that we look at this as college campuses are really just like traditional public sphere.

Of course, we're talking about public universities, but those public universities, whether it's their sidewalks, their grass, and pretty much any boundaries on their campus, as long as they're not causing interruption to other students going to class, employees being able to do their job, those sort of things, but generally, we look at the college campus as a traditional public sphere.

So while they may have been breaking an encampment law, we also still, like with the history of policing in this country, especially to brown, Black, Latinx people, that we need to be cautious when we are inviting the police in, even if we're seeing encampment laws being broken.

We would argue that it's better to really protect the First Amendment rights, these civil liberties as we're all guaranteed, than to bring in a police and have it escalate.

- Geoffrey, the Utah Board of Higher Education is spending ample time on this issue.

Late last year, there was a resolution establishing expectations for implementing principles of free expression on college campus.

And June 1st was the deadline for colleges and universities to establish policies on free expression on campus.

Did the colleges and universities meet that deadline?

What's the progress report on this?

- Yeah, thank you for the question.

I think it's important too, to recognize if you read that resolution and the resolution that the issue before.

What's very clear and I share the same value that that Aaron has expressed and that is the principles of free speech on our campus are so foundational to the success of higher education specifically, but also to the progress of our country in general.

And that institutions of higher education in their campuses have traditionally been this place where people come and have these debates that we wanna ensure that those rights are protected.

And what we saw was an alarming trend of trying to control the messages that are coming from our campuses who can protest, what they can protest, what's the role of the institution in those protests?

What's the role of faculty, what are the role of students?

How do we do these things and we needed some clarity.

And so we had the Board of Higher Education, which is the governing board for all the public institutions of higher education issued two resolutions: They established fundamental principles of free speech.

They're based off of a resolution that originated at the University of Chicago.

And these principles are well known, sometimes controversial.

I don't think that they're controversial.

I think they align precisely with what the First Amendment's trying to do.

Part of establishing these principles is saying, we need to protect free speech.

We need to protect the right of students to faculty of individuals to come to our campuses and express ideas and we need to make sure they can do so safely without disruption.

And this is what the university's obligation is in those cases.

We wanna make sure they have policies that make this clear for everybody.

And so the request from the institutions was, here's the resolution, here are the principles by which we are going to govern on free speech issues.

Please send us your policies to ensure that you have policies in place to make these things happen.

They have all submitted their policies to us.

Now, what we're engaged in now is essentially what is a gap analysis.

We're looking at their policies, we're looking at the resolution, and we're trying to see A, are there any conflicts between what their policy says and what the resolution established?

And then B, are there any gaps?

Do we have areas in the resolutions that need a policy and the policies they've given us don't really cover that.

If there's a conflict, we're issuing guidance.

If there's a gap, we're issuing guidance to say, you need a policy that addresses this, or your policy's in conflict, let's work on figuring out how we can fix the conflict and that's where we're right now.

- All right, thank you for that update.

The University of California Los Angeles saw more people arrested from protests against the war in Gaza since April than any other college or university in the US.

This is, according to the New York Times.

2170 people have been arrested or detained since mid-April of this year.

Dr. Eddie R. Cole is a professor of education and history at UCLA who is concerned about the police response.

- You could be 100% against the student encampments, you could be 100% in favor of the student encampments, but the fact that this particular moment has seen such widespread police response should actually alarm people.

If we're not modeling for how young people can engage an issue and be vocal in a democratic society, if we're not modeling that on college campuses, we're probably not going to model that anywhere, anywhere in American society and that should actually worry many people for the future of the United States.

- And I wanna correct that number of arrests and detainments that I shared, it was 271.

But Greg, what are your response to that statement?

- Well, I mean, I guess I'm gonna push back a little bit what I said earlier about police presence.

There was an alternative that I guess could have applied, at least at the University of Utah and UCLA's situation to me was worse, but you can always issue a citation.

I know that seems sort of silly because they don't go anywhere, but it could cost, it could be a criminal violation, it could be something like that.

So you have this law in effect, and policies in effect, like Jeff indicated, trespassing includes you can hang out, but you can't camp out.

You can't set up shop.

And so the police could issue citations in lieu of arrest, in lieu of the sort of the pushing and the shoving that we saw that I guess in some respects that went over the top.

But I also think this, and you said a number earlier that 15 of the students, or 15 of the arrestees weren't even students.

And that's a problem with protests like this, is you get people who show up just for the excitement of it.

If you ask 'em, what are we protesting, some of 'em might even not even know.

And those are the people that cause the problem for the police.

So I think in some respects, they didn't have much choice, but to start, I mean, to the extent that they were violent, I would never approve of that, but to some extent, you gotta stop people from doing what they're doing.

You've gotta detain them.

- Geoffrey, when does a freedom of speech cross the line from statements that upset people or offend people to a safety issue?

- Yeah, that is such a difficult question.

And there are lawyers who, their whole career, is based on trying to answer that particular question.

It's like, when does it stop being speech and what does it become something else like a threat of violence or harassment or discrimination?

And this line between what is protected speech, in other words, what is speech that the First Amendment says, you cannot suppress that speech versus what is speech that has crossed that line.

And there's quite a bit of case law that helps try to find the edges of these definitions.

A true threat can't be just a general statement, but has to be directed at a person or person's intended to communicate that they are in fact going to be harmed in a violent way and it's physical harm.

It's not just intellectual harm.

And this is, I think, one of the key things about this issue around free speech on our campuses, because we have these conflicting ideas.

in some cases we have people who say, we wanna make sure we're protecting free speech.

We wanna make sure that people are confronted with difficult ideas, I think that's right.

But we also have this growing trend of people saying, I wanna be protective from ideas that are offensive or that harm me emotionally.

And that's the hard thing about free speech is that's not the line.

The point of free speech is to protect a person's ability and right to express something that even almost everyone else in the room will find repugnant and horrific.

As long as it doesn't cross the line, then it's still protected speech.

I think one of the things that I find interesting is how many people misunderstand that in our country, hate speech is protected speech.

And I think a lot of people have assumed that that just simply wouldn't be the case, but it is.

And that's because once you start to try to decide which speech is protected and which speech is not, it gets the government in a position to start restricting speech and that's the whole point, is we don't want the government to play that role.

That's why it was put in as the First Amendment.

So when it comes to harassment, there's a standard.

Harassment is different than just speech because it's speech that is so persistent, pervasive and objectively offensive that it keeps you from going to school.

Again, going back to what I talked about earlier, which is that core mission that becomes harassment.

Now the school has an obligation to step in and say, you have to stop harassing this person.

But if it didn't reach that standard, even if it was offensive to somebody, the school can't come in and say, you have to stop.

They can come in and educate, but they can't restrict that speech.

And I agree with Greg and I agree with Aaron, police presence, it's very tenuous situation.

We don't wanna see violence ever.

But to the professor's point earlier about having a model for students to see how protests are done, commandeering a building and taking a hostage and using that as a way to extort concessions, that's not protesting, that's not free speech.

That's not the model.

The model is coming to campus and expressing your ideas and doing so without disruption, doing so and making sure people hear that message or confronted with that message and have to think about that message that's different than violating the law, damaging property, and I think that what we wanna do is model what really good protests are and that's just not it.

- Sure, we have just a few moments left, so this will have to be one of your final thoughts.

- Oh, I'm very sorry.

Just several months ago, a group of University of Utah women were up at Spokane, Idaho playing basketball.

And a man drove up to them with a group of others and made a comment as to their race and to a violent sexual act that he wanted to do.

And the state up there said he was protected in making that statement, they wouldn't charge him.

That's wrong, that's when a First Amendment breach goes too far.

A threat accompanied by immediate show of force is a crime.

And had the prosecutor said, we're not gonna charge him because he's a kid and because he's dumb and because this is a tough part of the country for race, let's face it, Northern Idaho, maybe they wouldn't have got a jury verdict.

But to say it's not a crime is not right because there are statements.

There are comments that can be made in a threatening matter with a show of other force and I know you told me to be quick and I already violated that, that could constitute criminal conduct.

- And Aaron, we have a few seconds left, about 30 seconds.

What are your final thoughts on this?

- Yeah, I think that overall, we've seen across Utah that in the last couple years, that it's not just our college campuses that are really struggling with protecting and ensuring that we are valuing the First Amendment in this state.

I mean, we're seeing censorship happen in our K through 12 schools.

We sued last year in St. George for drag stars to be able to perform in public spaces.

The censorship isn't just what we traditionally think of as free speech, whether it's on campuses, but really it's something that we're seeing intertwined with throughout all of our work in the last couple of years.

So I think really leaving here, we wanna say that...

I wanna say that we need to continue working towards really valuing the First Amendment and doing everything as Utahans as we can to ensure that we all get to celebrate and experience that civil right and liberty.

- Well, thank you all for joining us for this show and this discussion and thank you all for watching Utah Insight.

We'll see you again next week.

(bright music)