1. San Francisco State University
We Make Great Things Happen

2. Inclusive, Educational, Responsive, Empowering
Time, Place & Manner
Inclusive, Educational, Responsive, Empowering

3. Presenters Danny Glassmann, Ph.D. (he/him/his)
Associate Vice President for Student Life & Dean of Students, Deputy Title IX Coordinator/DHR Administrator, and Co-Chair of TPM Committee
Michael Beatty (he/him/his)
Risk Manager for Enterprise Risk Management and TPM Committee Member

4. Time, Place & Manner (TPM) Committee
Danny Glassmann (Co-Chair), Associate Vice President for Student Life & Dean of Students and Deputy Title IX Coordinator/DHR Administrator
Jay Orendorff (Co-Chair), Associate Vice President for Business Operations, Administration & Finance and Co-Chair of TPM Committee
Michael Beatty, Risk Manager for Enterprise Risk Management
Reggie Parson, Assistant Vice President for Campus Safety & Chief of Police
Michael Scott, Associate Vice President for Research and Sponsored Programs
Chris Farmer, Director of Operations for U Corp
Mia Reisweber, Director of Student Activities & Events
Amy Sueyoshi, Dean of College of Ethnic Studies
Sophie Clavier, Dean of Division of Graduate Studies
Dania Russell, Director of Dining & Events Services
Frederick Smith, Assistant Vice President for Equity & Community Inclusion
Theresa Pollard, Director of Labor and Employee Relations

5. Reconciling Equity & Inclusion with Freedom of Speech
We’ve see hateful flyers targeting a faculty member placed throughout campus.
We’ve seen a speech shut down by people disagreeing with the speaker’s views.
We, as a university, strive to nurture an inclusive environment where dialogue is encouraged from people of all views.

6. Social injustice exists in our communities, regardless of whether or not they are stated explicitly
The most important tool we have to combat speech we dislike or hate is with more speech
Empowering individuals to engage in dialogue, rather than silencing, is key to advancing social justice

7. Principled Response to Freedom of Expression Challenges
Our Choices
Inclusive or protective
Responsive or reactive
Educational or emotional
Empowering or controlling

8. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
U.S. Constitution, 1787

9. What is Free Speech? Popular speech is protected.
Unpopular speech is also protected.
Speech that promotes immediate lawless action or violence are NOT protected.
Feiner v New York (US Supreme Ct., 340 U.S. 315 date:1949)
OHIO vs. BRANDENBURG(US Supreme Ct., 395u.s.444(1969)
The Petitioner, Feiner (Petitioner), was convicted of disorderly conduct for refusing to stop giving a speech on a public sidewalk once the crowd started to get a little rowdy. When there is clear and present danger of a riot, then the police may restrict speech.
An Ohio law prohibited the teaching or advocacy of the doctrines of criminal syndicalism. The Defendant, Brandenburg (Defendant), a leader in the Ku Klux Klan, made a speech promoting the taking of vengeful actions against government and was therefore convicted under the Ohio Law. Speech can be prohibited if it is “directed at inciting or producing imminent lawless action” and it is likely to incite or produce such action.

10. Free Speech Is Not Absolute

11. Dispelling Myths & Misconceptions
Hate Speech, Hate Crimes, True Threat, Heckler’s Veto, Content Restrictions & the Brandenburg Test

12. 2015 Pew Research
40% of U.S. Millennials support the government preventing and restricting the ability to use statements that are offensive to minority groups.

13. Hate Speech
Speech that offends, threatens, or insults groups based on race, color, religion, national origin, sexual orientation, disability, or other traits
Hate Speech is still free speech and therefore protected speech

14. Hate Crime – Legally Defined (CA)
Use of force or threats to willfully interfere with, injure, intimidate or oppress another person’s legally protected right.
The defendant did so in whole or in part because of the other person’s actual or perceived protected class (e.g., disability, gender, nationality, race or ethnicity, religion, sexual orientation, etc.)
The defendant intended to interfere with the other person’s legally protected right.
See California Penal Code
----- Meeting Notes (1/22/18 18:08) -----
perceived protected class- there's a big difference.

15. True Threat See, e.g., Murakowski v. University of Delaware
A statement is a “true threat” - thus, not protected by the First Amendment if:
A reasonable person would foresee that the statement...would be a serious expression of intent to harm or assault…[in the context of] the surrounding events and reactions of listeners and whether the threat was unconditional and unequivocal and communicated a gravity of purpose and the prospect of immediate execution.”
See, e.g., Murakowski v. University of Delaware
The university had received complaints that Murakowski’s website contained racist, sexist, anti-Semitic, and homophobic statements and that his actions violated the conduct policy. Murakowski participated in a University hearing. The university suspended Murakowski and forbid him from attending classes or visiting his dorm room. Murakowski sued. The court found in favor of his 1st Amendment suit stating that emphasized that educational institutions may restrict speech in some cases in order to protect the educational environment and the wellbeing of its students. However, the court found that the university had not presented evidence sufficient to show that Murakowski's postings caused such a disruption and posed such a threat that the First Amendment would allow restriction.

16. True Threat
Encompasses those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals
The speaker need not actually intend to carry out the threat.
See, Virginia v. Black (2003)
Black (D) was convicted under Virginia’s (P) cross-burning statute. He argued that it was an unconstitutional law because under it any cross-burning was treated as prima facie evidence of the intention to create fear in another. If a state’s cross-burning statute treats any such incident as being on the face of it an intention to intimidate another, it violates the constitution.

17. Brandenburg v. Ohio 395 US 444 (1969)
Brandenburg Test
Brandenburg v. Ohio 395 US 444 (1969)
1. the advocacy is “directed to inciting or producing imminent lawless action,”
2. the advocacy is also “likely to incite or produce such action.”
The Brandenburg test was established in  Brandenburg v. Ohio, 395 US 444 (1969), to determine when inflammatory speech intending to advocate illegal action can be restricted. In the case, a KKK leader gave a speech at a rally to his fellow Klansmen, and after listing a number of derogatory racial slurs, he then said that  "it's possible that there might have to be some revengeance [sic] taken." The test determined that the government may prohibit speech advocating the use of force or crime if the speech satisfies both elements of the two-part test:  
The speech is “directed to inciting or producing imminent lawless action,” AND
The speech is “likely to incite or produce such action.”

18. Heckler’s Veto
"The heckler's veto involves situations in which the government attempts to ban protected speech because it might provoke a violent response. In such situations, the mere possibility of a violent reaction to protected speech is simply not a constitutional basis on which to restrict the right to speak.” See Feiner v New York
In the strict legal sense, a heckler's veto occurs when the speaker's right is curtailed or restricted by the government in order to prevent a reacting party's behavior. The common example is the termination of a speech or demonstration in the interest of maintaining the public peace based on the anticipated negative reaction of someone opposed to that speech or demonstration. 

19. *See Handbook of Free Speech, CSU Office of General Counsel
Heckler’s Veto
Speech that is otherwise protected may not be disallowed solely because the audience finds the message offensive, even where members of the audience react to the speech in a disruptive manner.
While there may be a legitimate need to take action against the disruptive members of the audience, the speech itself is protected.
*See Handbook of Free Speech, CSU Office of General Counsel

20. Content Neutrality in Responding to Speech
Consistent
Disciplined
Multipartial
Reasonable
Enforceable
The Supreme Court has made clear that although free speech cannot be restricted because of the content of the message, reasonable restrictions can be placed on the time, place and manner where free speech can occur.
Acceptable restrictions: Noisy speeches near hospitals; Billboards in residential areas; Amplified sound near classrooms.
The University TPM policy outlines when, where and how speech can be expressed on campus. It does not outline what speech can be expressed.
Even hate speech is free speech and thus protected unless it represents a “true threat”.
"Freedom of speech, press, petition, and assembly guaranteed by the First Amendment must be accorded the ideas we hate, or sooner or later they will be denied to the ideas we cherish.“
-Justice Hugo Black

21. TPM Executive Directive #89-13 Effective as of January 1, 2018
Policy: University Executive Directive (UED) – Time, Place & Manner: Use of Buildings and Grounds
Handout:

22. Application & Enforcement
This is a campus policy, not a student policy. It applies to ALL community members at SF State, as well as any guests and visitors of the University.

23. TPM Executive Directive Outreach Efforts
18-month collaboration between:
President’s Cabinet
University Counsel
SAEM and DOS
Enterprise Risk Management
UPD
Campus outreach with presentations on Free Speech, 1st Amendment and TPM to:
President’s Cabinet and other Key Stakeholders
CSUEU and CFA
Audit, Risk and Compliance Committee
Student Affairs & Enrollment Management Town Hall
Associated Students and numerous Student Organizations
A TPM Committee has also been put in place.

24. TPM Executive Directive Update Overview
Much of the document revised to provide more clarity especially regarding “protected speech” and 1st Amendment rights
Enforceable on Main Campus, Downtown Campus, Estuary & Ocean Science Center at Romberg Tiburon Campus, and Sierra Nevada Field Campus
Defers to existing Practice Directives on some issues (bicycles, etc.) to allow for easier future revisions

25. Guidelines to Place Defines types of forums:
Public – Greatest protections
Limited – Still protected though less so than “Public forums”
Non-Public – Very limited protections
Includes language outlining violations
Student violations – Dean of Students
Faculty & Staff – Human Resources
Third-party or outside groups/people – University Police Department
Public: those places historically reserved for the dissemination of information and the communication of ideas. Consisting of parks, sidewalks, and streets
Limited = indoor forums; Court has recognized that individual expression is not the sole objective served by limited public forums
Non-Public = ticketed events; Non-public forums include privately owned property and publicly owned property devoted almost exclusively to purposes other than individual expression

26. Activities on the SF State campuses are permitted during the University’s standard operation hours and may not interfere with or disrupt University business. Activities that are prohibited include, but are not limited to, the following examples:
Interference with classes in session or other scheduled academic, educational, cultural/arts programs or with use of the library;
Obstruction to the free flow of pedestrian or vehicular traffic;
Employing unauthorized sound amplification or creating unreasonable noise;
Violating any federal, state, or local safety code, including regulations set by the State Fire Marshal;
The visual blockage or the physical displacement of performers/programs that have reserved a venue;

27. Activities that are prohibited include, but are not limited to, the following examples:
Activities that damage facilities or interfere with necessary facilities maintenance and repair activities or the function of campus utilities (sewer, water, power, etc.);
Camping on University property or living in privately owned, temporary lodging;
The erection of temporary structure(s) on campus without University approval; and
Pets will be allowed on campus only when on a leash and accompanied by their owner. No animals, except when being used for official University instructional purposes, and/or service animals, will be permitted inside campus buildings without prior approval of the University

28. Amplification
Amplified events are permitted in Malcolm X Plaza Monday through Friday from 12pm to 2pm during the academic year. Exception is made during the last week of classes and during final exams (Spring and Fall semesters).
Amplification for any other location and/or time requires prior approval through the Dean of Students or designee.
Requests made 5 working days prior to the event.
Exceptions can be made for spontaneous events or other extraordinary circumstances.
75 decibels!

29. Reserving University Venues
Designation of the Coordinator of Special Events. Serves as point of contact for large one-time events of 150 people or more.
If event is under 150 people, typical staff contacts would be utilized.
Requests must be planned and made at least 10 working days prior to the proposed event date. Larger campus events may require a longer time period. 30 days is recommended.
Exemptions are requested through the Dean of Students.

30. Spontaneous Events
Spontaneous events occasioned by news or issues coming into public knowledge may be held on campus without advance permission so long as they adhere to all University policies.
Student organizations and departments are strongly encouraged to work in collaboration with Dean of Students and UPD to assist with event coordination.

31. Guidelines to Place – Posting of Flyers
Only on designated “public” bulletin boards
72-hour limit for posting of event—or date-specific events promotional material
Outlines process for removal of unauthorized posting of flyers
Provides for exceptions:
Academic department bulletin boards
Faculty offices and/or faculty office doors
Materials used for decoration of employees’ offices or workspace
Must comply with existing polices and practices of the department or office

32. Guidelines to Place – Posting of Flyers
Examples of locations where posting of “public” flyers is prohibited:
Departmental bulletin boards
Building walls
Restrooms
Windows
Benches
Utility poles
Garbage receptacles
Bus stop areas
Newspaper Distribution Kiosks

33. Guidelines to Place – Posting of Flyers
Removal of Unauthorized Flyers
Flyers containing defamation, obscenity, terrorist threats, false advertising, or the promotion of actual or imminent violence or harm are not protected by the Constitution and may be immediately removed. However, document the unauthorized flyer and notify UPS ASAP.
Any flyers posted in unauthorized spaces may be immediately removed

34. Guidelines to Place - Signage
Free-standing signs and banners
Including, but not limited to, A-frame signs, yard signs and other free-standing objects
Prior approval required
Dean of Students for student requests
Enterprise Risk Management for faculty and staff requests
In designated locations only
Designated Area Map now included
Three week maximum posting period

35. Guidelines to Place - Signage

36. Guidelines to Place - Tabling
Must be approved and have permit readily available, if requested
In designated areas only
Students Organizations
Must obtain approval from Student Activities and Events via OrgSync
Vendors or Student-sponsored Vendors
Must obtain approval from Student Activities and Events
Faculty, Staff and Third-parties
Must obtain approval from Enterprise Risk Management via erm.sfsu.edu
Electronic permit acceptable

37. Guidelines to Place - Tabling

38. Incident Response Protocol

39. SAEM & A&F Response Make necessary Notifications
Initiate Contact with Leaders
Determine a Campus Point of Contact
(Students – DSL/DOS, Faculty & Staff - A&F)
Initiate a Dialogue
Assist with Needs
Establish/Maintain Communications
Liaison w/ Policy Group & EOC Leaders
Present Demands/Options
Return Dialogue
Work with the EOC to draft & prepare messaging for campus community

40. Five point engagement protocol
The following incremental interventions will take place should disruption occur:
First instance – Campus Point of Contact will make a verbal request to cease the disruption.
Second instance – Campus Point of Contact, accompanied by a University Police Department (UPD) officer, will reiterate the verbal request to cease the disruption and also inform students that failure to comply may result in a charge of Code of Student Conduct violation and possible removal under CA Penal Code Section 407.
Third instance – Campus Point of Contact, again accompanied by a UPD officer, will reiterate again the verbal request to cease the disruption and notify them again of potential administrative and/or legal consequences.
Fourth instance - Failure to comply will result in removal by UPD and documentation of behavior for referral to Office of Student Conduct or HR (as applicable) for investigation and sanctioning, as warranted.
Fifth instance - Continued disruption thereafter may result in arrest/citizen’s arrest.

41. Case Studies
Please discuss the following scenarios with the group, and consider the following:
Identify any possible policy violations and/or impact of the disruption
What are possible considerations for a University response?
What should documentation include?

42. Contact Information
Danny Glassmann, AVP for Student Life & Dean of Students (Co-Chair)
Michael Beatty, Risk Manager, Enterprise Risk Management

43. Questions????

44. Case Study #1
You are walking around campus, and interact with a large group of students who are upset about 2 subjects who are petitioning for signatures. The petition is in regards to bringing a controversial speaker to a venue on campus, who is considered to be anti-feminist. The speaker, who identifies as female, has caused a lot of national controversy with their opinions and rhetoric. The group of students is demanding the petitioners be removed from campus, because they are feeling targeted and unsafe.

45. Case Study #2
You have a staff member who is hosting a social event in Jack Adams Hall for students to connect with their peers. During the event, your staff members calls you, and mentions that a group of students has attended the event wearing empty and exposed gun holsters. This is in response a recent mass-shooting reported in the media. The students wearing the empty and exposed gun holsters are handing out flyers supporting their 2nd Amendment rights to bear arms. The visual presence of the gun holsters has upset a portion of the other students attending the event. How would you respond?

46. Case Study #3
It is the beginning of the Spring semester, and it is the last day for students to pay their tuition and fees. After a recent announcement from the Chancellor’s Office regarding an increase of student tuition, in response, a large group of students has occupied the Bursar’s lobby, preventing students from making their payments and accessing other services. If students aren’t able to complete their payments, they will be dropped from their classes. Further, you’ve heard that a segment of the student group is planning on marching to the President’s Office to “sit-in” and demand a phone call to the Chancellor’s Office.

47. Case Study #4
The student-led campus newspaper, who has been known for providing inaccurate, inflammatory and offensive material, recently published an edition about race and gender. You read the edition, and were appalled by the content. As you’re walking to a meeting, you find a group of students who are collecting all of the newspapers, and throwing them in nearby dumpsters. A week later, several pictures of you have been circulating on social media by the newspaper’s editor, who is angry that a university official failed to respond to this “clear violation of free speech.”

48. Case Study #5
An event is being hosted in Malcolm X Plaza, which has wide university and departmental collaboration in planning, regarding the undocumented student experience at SF State. The event is aimed at educating the campus community about avenues of support and advocacy for undocumented students. A group of attendees present in the plaza, have joined together to express their disapproval of the event. They are chanting and shouting so loudly, that the audience is having a hard time hearing the presenters and participants are upset by the presence of the protest group. Event organizers are upset and have asked for their removal.

49. Video Case Studies Middlebury College
UC Berkeley Blocking Ingress to Campus
UCSC Teacher Trying To Engage Protesters in Discussion
Princeton Protest