Protesting NMSU Student Vows Free Speech Fight
A New Mexico State University student faces charges of trespass and disorderly conduct after he was arrested for protesting at the National Security Agency booth at the school’s job fair on Sept. 17.
Silent Protest of Secrets
Alan Dicker, a self-described radical leftist college student at NMSU stood beside the NSA’s table at the job fair, holding a handmade sign that read, “Work for Big Brother. Apply today.” Campus police told him to leave, but he refused. They gave him a ticket, as he was violating an NMSU policy that restricts protests to outdoor areas.
They then tried to force him to leave, according to what Dicker told local news station ABC-7 , and when he protested that they couldn’t make him leave without arresting him, they arrested him.
When he returned to the scene of the crime on the following day with a group of students to protest his being arrested for protesting, campus police again told the group to leave, giving them 10 minutes before more arrests would be made. They left.
Dicker, who was charged with trespassing, disorderly conduct and resisting a police officer, said he will plead not guilty. He claims the university is violating his right to free speech, pointing to his intent to protest civil liberties violations of the NSA’s secret surveillance programs.
He Said, They Said
NMSU’s administration released a statement, according to ABC-7, defending its actions and its policy, which Dicker allegedly violated by obstructing other students’ access to the NSA’s booth and refusing to move his protest outside.
“NMSU’s freedom of expression policy provides our students the opportunity to express themselves anywhere outdoors on this campus as long as it does not interfere with or obstruct traffic, block entrances or interfere with classes or the work of our staff,” said Bernadette Montoya, who is the university’s vice president of student affairs and enrollment management.
Dicker said he was quietly protesting and simply standing next to the booth. “If anyone is disrupting events in Corbett Center at the university, it hasn’t been us,” he told ABC-7. It’s been the police and it’s been the administration through their complete overreaction to these things.”
State the Variables
Student freedom of speech on state university property is certainly not absolute, say constitutional scholars. Two variables could play into any challenge Dicker decides to challenge to his arrest – the content of his speech and where it took place.
“A critical question is whether the restriction was related or unrelated to the content of the speech,” noted Dawinder “Dave” S. Sidhu, a law professor at the University of New Mexico School of Law. “If a university suppresses speech because of the content of the speech (e.g., anti-NSA), the university will have a much higher burden to show that the restriction was constitutional.”
But if NMSU can show that its restrictions are truly necessary to minimize disruption, and thus were not related to the message Dicker was expressing, it will have an easier time defending its policy, Sidhu said.
Both Sidhu and Roy G. Spece, Jr., a law professor at the University of Arizona James E. Rogers College of Law, note that students at private universities would likely not have grounds to challenge arrests for protesting.
“Private universities can have different rules because the First Amendment (and most other provisions of the Constitution) only applies to government action, usually referred to as ‘state action,’” Spece said. “Mere receipt of government money does not make the actions of private universities state action.”
The Great Outdoors
Dicker might also target the university’s limiting of protests to outdoor areas. “The student can argue that indoor areas open to persons generally – such as a cafeteria as opposed to a classroom – are public forums,” said Spece.
In a “public forum,” First Amendment protections are stronger when the protest-speech is not inconsistent with the purpose of the space, Spece explaind, pointing to a U.S. Supreme Court case that upheld the right to hold a silent protest in a public library.
“A well-drafted policy would prohibit protests of a nature and form disruptive to the purpose of the place where the protest takes place or intrudes upon,” he said. Does UNNM’s policy pass that test? From the little of it available in the news, “it seems that the University had a policy that might pass constitutional scrutiny.”
And as to Dicker’s chances of mounting a successful constitutional challenge, Sidhu said it’s hard to say. “The case will require a fact-intensive, individualized inquiry into, for example, whether the restriction was truly premised on something other than the content of Mr. Dicker’s speech.”
But he could single-handedly take down the policy. “Mr. Dicker would be entitled to file a lawsuit challenging the university’s policy either as a whole, or as it was applied to him,” Sidhu said.
And Spece notes that any constitutional challenge may hinge on what happens with Dicker’s criminal case first. “If he lost a criminal case, it would be futile to file a civil action.”