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'Cup it Up' saga a lesson in free speech

Nearly a month after closing the doors to their restaurant near the University of Arizona, the owners of Cup It Up American Grill are speaking out about what happened, while the community debates what free speech really means.

On Oct. 6, the Cup It Up store co-owners shared political views via its business’ Facebook account. The post began, “It’s time Cup it Up American Grill made a statement," and continued to list causes they believed in and supported, and those they did not.

The post declared support for President Donald Trump, drug screenings for welfare recipients, repealing Obamacare and more. The post also said the restaurant did not believe in kneeling for the national anthem, global warming, fake news and other issues.

It concluded with, “If you disagree with this post, please share it with 100 friends and we won’t be expecting you any time soon!” The restaurant’s university-area address was listed at the end of the statement.

The post incited a rapid response from the Tucson community. By the following Monday, Oct. 9, the three owners — Julian Alarcon, Jay Warren and Christopher Smith — had agreed to permanently close the restaurant. 

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According to Alarcon, who said he had no part in the post, the choice to close was in a large part over the backlash, but primarily out of concern for their employees' safety.

“Let's be perfectly clear, the restaurant is closed because the post that Chris and Jay made," Alarcon said. “The negative backlash, although some of it was really bad, it wouldn’t have been a major concern if they had just put maybe a few of those ideas on there... we alienated too many people.”

According to Warren, many of the employees had already chosen to quit out of disagreement with Warren and Smith’s beliefs.  

When asked what motivated the post, Warren said it was a combination of things. He cited the shooting in Las Vegas and the gun-control discussion it invoked, the political climate in general and the feeling of being engulfed in all that was going on in the world at the time. 

“The number one thing was the national anthem and the NFL kneeling," he said. “I’m not going to say it got out of control, but it grew. The post grew from what was going to be a simple few statements..." 

The post, and the community’s negative reaction to it, prompted Ana Henderson of the Pima County Republican Party to respond via the party’s official Facebook page. Her statement, which began, “Take a stand Tucson!” called on people to “take action in support of their freedom," and rally in support of Cup It Up.

Chairman of the Pima County Republican Party, David Eppihimer, took issue with Cup it Up's closure. “It is just a tragedy that the place had to close because of the disrespect at the U of A community toward freedom of expression; of ideas not leftist,” he said. 

He continued to say there was no room for the First Amendment at the UA. 

“It all stems from an intolerance for any beliefs other than leftist progressive attitude that is taught at the U of A”, he said. 

Warren did not single out the university. “I’m not labeling the U of A campus as a liberal hot spot…that’s Tucson in general,” he said. “What it comes down to is you can have free speech until you say something not in line with the left. Once you cross that line, it’s no longer allowed.” 

These comments came less than two weeks after Arizona Board of Regents President, Eileen Klein, addressed the issue of free speech on campus in her opening comments before the board's first meeting of the year.

“We need to continuously assert that we are not like the other places that we are reading about constantly in the media," she said. "That we in fact very much support, uphold and advance free speech on our campuses.” 

Kathryn Adams Riester, associate dean of students and the UA's first amendment point person, believes the university’s policies around free speech already differentiates it from other campuses. She points to the tolerance of the "preachers" on campus for evidence  — especially Dean Saxton. 

“That’s been consistently our policy, overseeing freedom of speech and freedom of expression,” Riester said. “We uphold the First Amendment of the Constitution of the United States and allow free speech on campus, within the appropriate guidelines that the Constitution gives us.” 

These guidelines allow universities to place some restrictions on free speech based on time, place and manner; speech that is disruptive to the educational or business environment is prohibited. 

There are several exceptions, Reister explained. Speech directed toward "inciting or producing imminent lawless action" and direct threats aimed at a particular individual are not protected. 

Also not protected is speech that can be proven to be sexual or racial harassment, clearly aimed at one particular individual. As Riester said, however, “there are very few things that are unprotected speech.”

The director of the UA’s School of Journalism, David Cuillier, claimed the line differentiating protected speech from unprotected speech could sometimes be a grey area, and require a judgment call.  

“Where’s that line? It’s not simple, but basically it’s fighting words- we can't say things that are going to start a fight," Cuillier said. "College campuses currently have to grapple with this line of protected versus unprotected speech, free versus hate speech."

Simón Sanchez, a Mexico-based professor, filmmaker and activist, describes "hate speech" along the same legal terms Riester defined. 

“[It's] speaking against a group of people, targeting them with hate, spewing lies about entire groups of people to encourage hate against them," he said. "Speaking in such a way that makes one group superior or supreme to another, or in the case of white supremacy, above all other races."

Sanchez, however, does not believe hate speech should qualify as protected speech. "Those things incite genocide. There is no doubt that this is the case,” he said.

Riester is of a different opinion. “I think the hard thing for people to understand is that most of the time, hate speech is really protected speech," she said, and said she believes the UA does a good job of tolerating this.

“If you look at the way we work with the people who come to campus to speak, in particular, if you look at our preachers that come they’ve been allowed to be here," she said. “When we get the complaints, I try to educate people on the First Amendment and talk about what alternatives there are for what they can do.”

These alternatives include protesting, speaking out in opposition, or — if it’s an institution or business — withdrawing your support or money. It's been these types of responses to certain speakers that sparked the current campus free speech debate. 

“The conservative right is complaining, saying campuses are censoring their rights. Is that true? Has anyone at the U of A stopped a conservative speaker? No,” said Cuillier. He agreed with Riester that this is one issue the UA is handling well. 

“They’ve veered on the side of free speech and given people the space to express themselves, even though they’ve offended a lot of people,” he said. “If there’s any place in the country where we should have an open dialogue, it’s on a college campus”

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There is a strong distinction between the right to speak and the consequences for this speech, however. “People have the right to freedom of speech but that doesn’t mean consequences don’t come with it,” Riester said. 

Again, Cuillier echoed Riester. “When you depend on the good graces of customers, it’s probably good advice not to tick them off,” he said. 

For Cuillier, the Cup it Up saga highlights a flaw in America's understanding of the First Amendment. “Everybody always gets this wrong. Every time this happens, everyone gets confused what the First Amendment is all about," he said.

"It protects people from the government infringing on speech. It doesn’t protect them from neighbors infringing. There is no guarantee in this life that we can offend people."


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