California Lawsuits Test Boundaries of the Right to Protest

Student encampments and other large-scale campus protests last spring over Israel’s war in Gaza prompted over 3,100 arrests or detainments and numerous incidents of students being suspended or expelled. A wave of state and federal litigation followed — including two lawsuits filed in California state court last fall — challenging administrators’ actions. The outcomes of these lawsuits, along with suits by Jewish students alleging that universities failed to protect them from harassment, will be significant in defining the legal rights and obligations of protestors and universities alike.

The First Amendment applies to state universities, where students have a right to engage in peaceful protests but can be subject to reasonable time, place, and manner restrictions, which come in many forms. The First Amendment does not apply to private universities, which can prioritize other institutional, financial, or moral interests in how they address protests.

State law, however, can go further in protecting the right to protest. In key areas, California already has done so. In Robins v. Pruneyard Shopping Center, for example, California’s high court ruled that the state constitution protects rights more broadly than the U.S. Constitution when it comes to speech on private property, allowing students to collect signatures in a privately owned shopping center. That case was eventually reviewed by the U.S. Supreme Court, which ruled that California was within its rights to protect speech on private property under its state constitution.

And California’s Leonard Law, passed in 1992 and amended in 2006, protects students’ speech on both public and private campuses, barring colleges and universities from disciplining students for speech that would be protected under the federal or state constitution if conducted off-campus.

Two recent lawsuits could further define the right to protest under California law. In September, two students and a faculty member filed suit against the UC Regents and UC Santa Cruz in Ellutzi v. Regents of the University of California. The plaintiffs allege the university violated their due process, speech, and assembly rights under the state and federal constitution and state law when they, along with more than 100 other protestors, were summarily banned from campus after failing to disperse when the university called in law enforcement to shut down a “Gaza Solidarity Encampment” on campus. 

The plaintiffs argue that UC Santa Cruz denied them adequate notice and an opportunity to be heard prior to banning them from campus, and that protesters cannot be summarily banned absent an individualized determination that their continued presence on campus poses a serious safety threat.

The university argues that the barricades created by the protestors posed a substantial threat of injury to the campus by, for example, making it difficult for emergency vehicles to pass and that state law allows the university to summarily ban individuals who are acting in concert to disrupt the campus. Citing “a lot of disputed evidence,” the trial court denied the plaintiffs’ motion for a preliminary injunction and the case continues to move through the trial court.

A second lawsuit, Blair v. Regents of the University of California, was filed in October against the UC Regents and UCLA by two professors and two students. They challenge the destruction of the “Palestine Solidarity Encampment” on UCLA’s campus, the arrest of protesters, and the imposition of disciplinary action, which all took place after the encampment was targeted by what the plaintiffs describe as a violent mob attack. 

The plaintiffs allege that the encampment was non-violent and did not violate any university policies. They say that in shutting it down, the university targeted pro-Palestine speech and expression and succumbed to a “hecklers’ veto” — a term that refers to silencing speakers because other people don’t like their messages. This violated the state constitution and other state laws, the plaintiffs say. Blair is currently pending before a trial court.

The scope of protest rights is also implicated in lawsuits by Jewish students in California and elsewhere, who have argued that universities’ responses to encampments and other protests failed to protect Jewish students from harassment as required by state and federal law. A lawsuit filed by anonymous students in California state court, for instance, claims that the administrations at UCLA, UC Santa Cruz, and UC Davis failed to halt what they describe as an anti-Semitic campaign to “terrorize, intimidate, assault, and shame Jewish Students and Faculty members and interfere with their right to freely travel to and from classes, offices, and otherwise accessing other facilities.” The plaintiffs say the schools violated state civil rights laws, among other claims.

Since last spring’s protests, many private and public institutions have reevaluated their free speech codes, and many schools unveiled new policies around speech and protest that purport to limit protest activity. Among the new or revised rules are limits on when students are allowed to protest, including prohibiting overnight demonstrations; bans on encampments; restrictions on where protests can occur; and clarifications on what constitutes impermissible speech. Many of these changes may themselves become fodder for future litigation as courts consider the boundaries of the right to protest.

Ochuwa Garuba is a student at Vanderbilt University and a former intern at the Brennan Center for Justice.

Alicia Bannon is editor in chief for State Court Report and the director of the Judiciary Program at the Brennan Center for Justice.

Suggested Citation: Ochuwa Garuba & Alicia Bannon, California Lawsuits Test Boundaries of the Right to Protest, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Jan. 9, 2025), https://statecourtreport.org/our-work/analysis-opinion/california-lawsuits-test-boundaries-right-protest