On April 9, two UC Davis law professors—one is an administrator and the other holds an endowed chair—published an article called “Defining the Boundaries of Free Speech in College Protests.” The article takes issue with the Davis Faculty Association’s call for the Yolo County DA to drop politically motivated charges against the “Davis Dozen.” The authors, Alan Brownstein and Vikram Amar, castigate the DFA for its characterization of the legal action as “retroactive” and for engaging in “viewpoint discrimination.”
In the first place, the authors misunderstand what is meant by “retroactive.” This adjective conveys a simple fact: it was only after US Bank announced that it had permanently closed its doors that the UCD administration requested that the DA bring criminal charges against the 12 protesters. The university is targeting the dozen in a clumsy attempt to limit its liability to US Bank, which claims it was “constructively evicted,” and is threatening a lawsuit.
Despite their claims to the contrary, Brownstein and Amar’s argument targets these protesters and aims to imprison them. This is the meaning of their twisted invocation of Martin Luther King Jr. to claim that civil disobedience gains its force from the willingness of protesters to be arrested and sanctioned. In other words, Brownstein and Amar think that a successful protest is one in which protesters go to jail, not one that achieves its concrete aims.
Brownstein and Amar’s own “viewpoint neutral” claim is the following:
Laws regulating the time, place and manner of activities on public property in race-neutral, content-neutral, viewpoint neutral ways that leave open ample other opportunities for expression (and the campus’ regulations have to and do satisfy these standards to be permissible) are not unjust laws.
In constructing their argument, the authors remain firmly planted on the reified terrain of legality, whereupon unequal class and race relations are institutionalized, normalized, and presented as “just.” The “neutrality” from which the authors articulate their position, then, is a sanitized abstraction of a status quo whose maintenance depends on the continued oppression of women, minorities, queers, and the poor. For their argument to seem reasonable, domination must be understood as neutral and just, and resistance to domination must be seen as unreasonable.
It’s no coincidence that the authors chose the constitutionally guaranteed freedom of speech to underpin their argument against the US Bank protests. The administration wants to shift the struggle onto the familiar terrain of “free speech,” where supposedly fair and neutral limits have been established.
“Free speech” remits to the plane of the symbolic and the preterite, to the dusty images and grainy video of a bygone Free Speech Movement. “Free speech” can be celebrated, promoted and even commodified by the authorities, but the movement must remain a thing of the past. By concentrating on speech, the administration wishes to confine today’s dissent to the rhetorical realm, where it poses absolutely no threat to the established order.
“Speech” and its associated practices and prohibitions were simply the local site on which a broader conflict over civil rights and militarization was fought in the 1960s. The name “Free Speech Movement” is problematic, at once a misnomer and a convenient way for the current university administration to transpose the struggle from material action onto a purely rhetorical “marketplace of ideas,” where we all have the right to say what we want, as long as we don’t take concrete steps to make our dreams real. Jamming the movement into the free speech cage also permits administrators and politicians to repress the aspects of popular resistance that truly frighten them—it’s enough to recall that the Free Speech Movement took place in a context of riots, bombings, and other acts of physical resistance. The bank blockade is so threatening because it crosses the line between the rhetorical and the material, between the abstract and the concrete. In doing so, it succeeded.
Both authors took part in a “Freedom of Expression Forum,” whose name evokes the administration’s notorious Freedom of Expression Support Team. The forum was sponsored by the Civility Project, the Office of the Chancellor’s Orwellian initiative to lump political dissent, along with racism and hate speech, into a broad category of speech and action called “incivility.” Together, these forums, initiatives, and spy teams constitute a sustained effort to suppress meaningful resistance to the university’s privatization program by placing strict boundaries on dissent.
These boundaries are codified as law and “protest guidelines,” but they are actually quite malleable. Nowhere is this more apparent than in interactions with the police. Here, at the point of conflict, the police apparatus defines legality according to the situational demands of its function: to maintain (the existing) order. The police declare a gathering to be illegal or a march to be a riot. The cops’ basic operational procedure is to first eliminate the threat to normal circulation of traffic, conducting of business, or growing of grass and, later, to define illegality as whatever the arrestees and police-brutality victims were doing. They typically employ weasel words: “assaultive” in the absence of actual assault; “not non-violent” to describe protesters who had linked arms in order to face, together, the coming beatings; “resisting” to designate someone arrested violently in a one-sided use of force and “pain techniques.”
Sometimes these words make it into the legal code, as in California Penal Code, Section 405a, which makes it possible for one to be charged with lynching for, among other possibilities, rescuing a black friend from bodily injury at the hands of an angry white mob—the cops.
More often, though, the police exercise their legal authority—based nakedly on the violence they inflict or imply—to limit or prohibit being in a place. Gang injunctions, as prohibitions on being a black and/or latino youth in designated areas, are an obvious example of this. In such cases the state exercises its God function on individuals, letting them be, or not be. The police merely utter le non du père, the declaration of unlawful assembly, the “nein” to our Dasein. They tell us we cannot set foot on campus, that we must “stay away,” that we cannot sit in this hallway that happens to adjoin a bank whose presence, unlike ours, is never questioned. The grass is closed.
This, then, is the moving terrain of law, the neutral vantage point from which which our serious, business-suited Ivy League Constitutional scholars have written an essay which may well serve as an amicus curiae brief intended to imprison twelve individuals.
Never mind that the student protesters have not harmed anyone. Never mind that the administration has. What matters is the manner in which dissent occurs. The UC administration has embarked on a campaign to criminalize all forms of dissent which depart from the purely rhetorical and cross into material resistance that threatens the practices and structures of privatization, and which depart from the notional and enter the real.
Shit’s about to get more real.