Guest Post: CUNY Should Withdraw draft Protest Policy

BY Alex S. Vitale

CUNY’s new draft policy on Expressive Activity in paying rhetorical allegiance to the “important of a free exchange of ideas and expression of all points of view,” makes the fundamental mistake of equating protest with speech. Throughout the document, the right to protest is restricted by concerns about “order,” “disruption,” and the “rights of others.” These restrictions indicate a basic misunderstanding of the nature of the right to assembly as distinct from the right to freedom of speech.

There are many possible outlets for ideas including interpersonal speech, published writing, and social media. The right to assemble, however, involves the physical manifestation of people in space as both an exercise in communication and an expression of power. As such it is inherently disruptive, disorderly, and interferes with the rights of others. Any policy that attempts to eliminate these qualities reduces protest to speech.

The constitution specifically protects the right to such manifestations by listing assembly as a right distinct from that of speech. The framers understood the importance of public gatherings in rallying opposition to the Crown and in holding colonial officials accountable. It was not enough to circulate pamphlets and make arguments, since the British government was only interested in exploiting the wealth of the colonies and had no interest in a considered debate.

Both the constitution and case law do require that demonstrations be “peaceable.” This limit should not, however, be equated with orderly. The framers were concerned about limiting the insurrectionist impulses of crowds not in micromanaging their assemblies. It is understood that public assemblies involve an inconvenience to others. It is precisely the physicality of assembly that embodies its forcefulness in distinction to mere speech. Occupying streets, sidewalks, and public plazas and loudly and dramatically communicating to those nearby is precisely the point of political assembly.

While we primarily associate universities with speech, protest has also been at the center of university life and the protest activities of students and faculty around the world has played a pivotal role in shaping the modern political landscape. Pro-democracy demonstrations in China and South Korea, anti-Vietnam War demonstrations in the US and Europe, and Anti-Apartheid protest on colleges around the world have shaped social movements, changed governments, and inspired millions to take political action.  

CUNY management has a legitimate interest in ensuring the physical safety of the CUNY community and in protecting the physical infrastructure of the university. But the proposed policy goes too far by trying to take the disorder out of assembly. Notification requirements, the establishment of restrictive protest zones, and the intent to forcibly terminate protests that threaten to disrupt any aspect of life at the university are an unreasonable abridgement of the right to assemble.

Furthermore, the process of drafting this policy is another example of the CUNY administration’s disregard for the members of the university community. No effort was made to seriously engage students, faculty, or staff in the production of this policy. While CUNY claims its purpose is to protect the safety of students and employees, CUNY continues to tolerate more pressing threats to safety by allowing bullying of staff by administrators,  inadequately funding mental health and crisis intervention services, and failing to properly maintain buildings and campus infrastructures.

The CUNY administration should immediately withdraw this policy from consideration and initiate a much broader policy conversation that involves students, faculty and staff. In addition, any new policy resulting from this process should first be approved by appropriate governing bodies before being considered by the Board of Trustees for adoption.

Alex S. Vitale is Associate Professor of Sociology at Brooklyn College and writes about the policing of protests.