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USC Violating the Law by Restricting Student Speech:

[See UPDATE below for the USC Administration's ultimate decision on the matter, which I think is much better than its initial decisions.]

The Daily Trojan reports:

Eddie Marquez, assistant director of Norman Topping Student Center, shut down a Gender and Sexuality Week event being held in a designated free-speech zone after receiving several complaints about vulgar language.

George Weiss Vando was near Tommy Trojan and in the middle of performing "Man Lady," a performance based on his life experiences, when Marquez interrupted him, asked the organizers to turn the speakers off and pulled the power cords. . . .

Marquez said that after hearing complaints from a Department of Public Safety officer, a staff member and the vice president's office, he made the decision to stop the performance. He did not give names of the complainants.

Ian Scott, a senior majoring in music education, was walking past Tommy Trojan between classes when he heard Vando speaking. . . . Scott said the language and content of the poetry was "raunchy," but was also artistic and not profane.

The term "motherf-----" was used. . . . [Scott is quoted as a witness, not as someone who was complaining. -EV] . . .

When asked if vulgar speech was allowed in the free speech zone, Marquez said, "I would say no, just because we don't want to offend anyone . . . We do this to protect the students and make sure we maintain the integrity of the university."

A later story reports that a couple of days later students tried to protest the administration's actions by displaying signs that used the word "fuck" and its variations; the administration shut down one such protest, and apparently tried to shut down a second, though the story is a bit ambiguous on what ultimately happened as to the second protest. USC Department of Public Safety officer Bryan Hunt said display of profanity violated California Penal Code 415. "'This is the deal: There is freedom of speech, but there are words that can offend people,' Hunt said."

1. As to California Penal Code 415, USC is 35 years behind the times. In Cohen v. California (1971), the U.S. Supreme Court dealt with the prosecution of someone publicly displaying the word "fuck," under precisely the statute USC is citing, California Penal Code 415. The Court held that such public display of profanity generally may not be criminally punished, unless it's a personalized insult "directed to the person of the hearer" and therefore likely to start a fight — if you say "fuck you" to someone, that might be criminally punishable, but wearing a "Fuck the Draft" jacket (the particular facts involved in Cohen), giving a performance that uses the word "motherfucker," carrying signs containing the word "fuck" as a protest against suppression of profanity, and the like are constitutionally protected.

2. USC is also over 10 years behind the times when it comes to the broader question of whether it may suppress offensive student speech. As a private university, USC is not bound by the First Amendment — but the Leonard Law, enacted by the California Legislatures in 1992, obligates private colleges in California to generally tolerate student speech under the same standards imposed by the First Amendment on the government:

(a) No private postsecondary educational institution shall make or enforce any rule subjecting any student to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside the campus or facility of a private postsecondary institution, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article 1 of the California Constitution. . . .

I'm not wild about this restriction on private universities' freedom of action; while I think that private universities generally ought not suppress student speech, I think they should have the legal right to do so. But the Leonard Law is the law in California, and it seems to me that USC ought to comply with it. And the Leonard Law quite clearly bars USC from suppressing student speech simply because it's offensive or because includes profanities.

UPDATE: I'm pleased to report that the USC administration has ultimately come to the right conclusion:

Carey Drayton, assistant chief for the Department of Public Safety, is quoted as saying: "The administrator should have said, 'Yes, it may be offensive to you, but that person has a right to speak,'" Drayton said. "We're going to start a joint training with administrators and DPS so everybody will know what is expected."

AF:
Based on your post, it looks like USC shut down the performance, but did not necessarily discipline the students who were involved. The statute seems to prohibit only "subjecting any student to disciplinary sanctions." Are you sure USC violated the law?
2.9.2006 4:18pm
Eugene Volokh (www):
AF: Good point; I take it that the performance was shut down using the threat of disciplinary sanctions -- when an administration official or a Department of Public Safety officer comes and says "you must stop this," the threat is pretty clear. And if the administration's behavior was based on the assumption that the rules do indeed bar students from using profanity in public places (on pain of disciplinary sanctions), then it sounds like the administration has "ma[de] . . . [a] rule subjecting any student to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside the campus or facility of a private postsecondary institution, is protected from governmental restriction by the First Amendment"
2.9.2006 4:23pm
Kovarsky (mail):
Eugene,

It seems clear that USC violated the law.

There's only a civil action for declaratory relief or an injunction, though. How would that play out? Would the next potentially offensive demonstration have to seek an injunction or declaratory relief? I don't think there's that much Tommy can do unless he wants to perform again, right?

Another question: are there a lot of laws on the books like this - that restrict the speech rights of universities by treating them as governments? This strikes me as being completely at odds with the notion that the government has more leeway to restrict speech when it is acting as an employer than when it is acting as a regulator. Is there a way to distinguish the two phenomena that I'm not thinking of?
2.9.2006 4:35pm
Splunge (mail):
Well, maybe the Leonard Law is itself unconstitutional. If the government made a law forbidding me from booting rude dinner guests out of my house, that would be unconstitutional, right? At least under the California Constitution, which includes a right to privacy specifically. Not sure why USC doesn't have similar rights.
2.9.2006 4:37pm
Kovarsky (mail):
Splunge,

Prof. Volokh agrees with you on the bottom of his post.
2.9.2006 4:49pm
Fishbane (mail):
I'm disturbed by the growth of "free speech zones". The implication is clear - outside of the "zone", speech isn't free.

I realize that's legally fine in private areas, but the growth of the notion in airports and university campuses strikes me as distressing.

No real question here; I'm merely emoting.
2.9.2006 4:56pm
Robert West (mail) (www):
Kovarsky - I think that's overstating it. It's quite clear that Professor Volokh disagrees with the policy decision of the State to adopt the Leonard Law. It is not clear, because he has not stated an opinion on the subject, as to whether or not he thinks it unconstitutional.
2.9.2006 4:57pm
AF:
I guess it depends on what your definition of "rule" is. I am not sure that every time the school administration asks/tells students not to do something it "make[s] or enforce[s a] rule subjecting any student to disciplinary sanctions."
2.9.2006 4:58pm
Ira B. Matetsky (mail):
Wouldn't the word in question be classified as an obscenity (in the dictionary, rather than the constitutional sense), rather than a profanity or vulgarity? I always thought that obscenity, vulgarity, and profanity were three separate categories of sometimes-proscribed words.
2.9.2006 5:00pm
Kovarsky (mail):
Robert,

Your point is fair. I'm inferring he thinks that because he said that he thinks the state should have a legal right to do so. Based on the constitutional valence of Prof. Volokh's scholarship, I took that to mean that he thought the Law was unconstitutional. But your are certainly correct that is less than clear from the post itself.
2.9.2006 5:03pm
Kovarsky (mail):
Ira,

I don't think you can (and I don't think the courts thikn you can) determine whether a word is "obscene" without knowing the context in which it is used.
2.9.2006 5:04pm
CJColucci (mail):
Is it really the case that the First Amendment forbids public colleges from insisting on certain levels of viewpoint-neutral decorum? To be sure, they can't prosecute a student for saying "motherfucker," or discipline one who says "nigger" while letting one who says "honky motherfucker" slide, but is a public college disabled by the First Amendment from insisting (again, in a viewpoint-neutral way) on a standard of behavior higher than the merely non-criminal and enforcing it by internal discipline or expulsion?
I don't suggest that an eneforceable viewpoint-neutral civility code (express any idea you want, but be polite about it) is a good idea. I didn't go to a school that had one and I doubt I'd want to, but is it clear that it would be unconstitutional?
2.9.2006 5:05pm
KevinM:
Hypocrites! How can they label as obscene any speech occurring in a building they named the "Topping Student Center?" See, e.g.,
Topping
2.9.2006 5:25pm
Deoxy (mail):
I would think the Leonard is quite clearly unConstitutional - it's legally equivalent to making the First Amendment apply to people in my house. That is, I can't make them leave because of what they say. The abomination of Kelo notwithstanding, isn't that considered a "taking"?
2.9.2006 5:33pm
Houston Lawyer:
If it OK to shout over loudspeakers George Carlin's seven dirty words, how are these words banned from the public airways? Same question with regard to porn and public indecency in general.

Now I prefer that porn and profanity be kept off the public airways and I prefer that the vast majority of people be required to wear clothes, but given the breadth of the Supreme Court's first amendment rulings I don't know how this is enforced.
2.9.2006 5:40pm
David M. Nieporent (www):
I would think the Leonard is quite clearly unConstitutional - it's legally equivalent to making the First Amendment apply to people in my house. That is, I can't make them leave because of what they say. The abomination of Kelo notwithstanding, isn't that considered a "taking"?

No. See Pruneyard v. Robins. That applied to malls, not universities, but the logic is the same. The Supreme Court held that it neither infringed upon the mall's free speech rights nor acted as a taking, essentially because it didn't impair the value of the property.
2.9.2006 5:44pm
David M. Nieporent (www):
That's Pruneyard v. Robins. Don't know why the link didn't work last time.
2.9.2006 5:45pm
David M. Nieporent (www):
Sorry to triple-post, but I just wanted to add that I am not endorsing Pruneyard; I am simply reporting it. I strongly disagree with it.
2.9.2006 5:52pm
Major:
I think this is different from Pruneyard because Academic Inquiry and the Constitutional Right to Expressive Association are intimately connected to a private University's purposes. Pruneyard was based, at least in part, on the theory that a shopping mall is the modern equivalent of a public square, and that its purpose is to serve as a public forum. A private University, by contrast is by its nature an exclusive community, with a legitimate first amendment right to promote its values within its domain.

This case reminds me more of Boy Scouts of America v. Dale. If the Boy Scouts' right to expressive association includes the right to exclude gays, atheists, and agnostics, why doesn't USC have a similar right to exclude profane louts?

Nonetheless, I take it from his post that Prof. Volokh believes the Leonard Law is Constitutional, because he says it "is the law in California." That would not be the case if it violated the Consitution.
2.9.2006 6:32pm
Cynicus Prime (mail) (www):
Am I the only one who finds it amusing that universities setup "free speech zones" and then object to students using speech inside such a zone that might "offend" someone?
2.9.2006 6:54pm
The Original TS (mail):
I think everyone here is misreading the statute.

No private postsecondary educational institution shall make or enforce any rule subjecting any student to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, WHEN ENGAGED IN OUTSIDE THE CAMPUS OR FACILITY OF A PRIVATE POSTSECONDARY INSTITUTION, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article 1 of the California Constitution. . . .

This statute prevents private colleges from discplining students for off-campus speech. It doesn't say that USC can't discpline students for speech that occurs on campus which violates USC rules.

Nonetheless, USC is being completely muddle-headed. But what did you expect from USC, Eugene? ;)

BTW, I agree that this statute is of extremely dubious constitutionality on free-association grounds. Pruneyard is inapposite. University campuses are not de-facto public spaces.

P.S. Sorry for the caps. I couldn't get the tags to work for some reason.
2.9.2006 7:14pm
Christopher Cooke (mail):
Actually, I read the statute as saying:

"If the conduct in a public space would be protected under the First Amendment, then it is protected at a private university."

So, I think USC may have violated that law, after all.

This reminds me of a pro bono, criminal case that I handled a long time ago (my one and only criminal case). I represented two individuals charged with a misdemeanor, disturbing the peace ordinance. They were two "colorful" characters, who frequent UC Berkeley's campus and speak out on issues of importance to themselves. One of them was preaching on Sproul Plaza, while the other one was heckling the preacher (they waived the obvious philosophical conflict). A third person, not one of my clients, joined in the heckling, primarily by shouting "Fuck You" repeatedly to the preacher (the third person is known as the "Fuck You" guy). Several people at the Campus Admissions office complained about the disturbance, some because they "knew of people whose lives were ruined by religion" and others because of the loud "fuck yous," which apparently were overhead by applicants on the telephone with admissions personnnel. Upon researching the charges, I discovered that the problem with the criminal charges was that the Cal. Supreme Court had narrowly construed the disturbing the peace statute to prohibit only speech that was likely to incite a violent reaction that was likely to occur, and none of that was true in my case. When I pointed out this decision and statutory construction to the Alameda DA, he dropped all charges against my two clients. Ironically, the "fuck you" guy had already been tried and convicted for violating the same statute (he represented himself during the trial and shouted his favorite phrase to the jury). It goes to show you that no one really researches these laws very much(not the police, DA or Judge in the first trial).
2.9.2006 7:41pm
Broncos:
I agree with OTS's reading of the Leonard law.

As far as the Leonard law's constitutionality, there is a further question: Supposing that a corporate entity's right of free expression subjects government regulation to strict scrutiny, would the application of the CA statute survive it?

Suppose that an individual's right to speak as freely as the federal constitution requires from government qualifies as a "compelling" state interest.

If a university authority were allowed to regulate the speech of a student both while on-campus &off-campus, they could regulate all speech of that student. If California wants to protect an individual's compelling interest in freedom of speech, I am not sure that it would be able to do so, absent the Leonard law. Moreover, because the Leonard law does not affect the ability of a private university to regulate on-campus speech, its restriction on a university's right of expression are de minimis.
2.9.2006 7:51pm
Broncos:
I'm flip-flopping on the reading of the Leonard law. It reads "when engaged in outside the campus", rather than "when engaged in..."

Nonetheless, could it survive strict scrutiny (if that is what is appropriate)? If protection of a student's interest in on-campus speech is "compelling," could California protect it without the Leonard law?
2.9.2006 8:00pm
Broncos:
"rather than if engaged in.."
2.9.2006 8:01pm
The Original TS (mail):
Well, Christopher, most people, in this thread anyway, read it as you do. But I don't think a careful reading supports that interpretation.

One of the first rules of statutory construction is that statutes must be construed to avoid surplusage. In other words, if there are two interpretations of a statute, one of which makes part of the statute redudant or mere "filler," you must adopt the construction that gives the disputed language an independant meaning. Every word of the statute is supposed to have a purpose. The Legislature does not just waffle on about nothing . . . well, in theory, at least.

The problem with your interpretation is that it renders "when engaged in outside the campus or facility of a private postsecondary institution" as mere surplusage. If the Legislature had wanted the statute to apply the First Amendment to college campuses, they would have just left that language out.

No private postsecondary educational institution shall make or enforce any rule subjecting any student to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside the campus or facility of a private postsecondary institution, is protected from governmental restriction by the First Amendment

In any event, I think my construction is both logical and grammatical. "Speech, when engaged in outside the campus and protected by the First Amendment, cannot be the basis for disciplinary sanctions."
2.9.2006 9:14pm
Charlie (Colorado) (mail):

When asked if vulgar speech was allowed in the free speech zone, Marquez said, "I would say no, just because we don't want to offend anyone . . . ."


That might just be the stupidest thing I've ever seen an administrator say.
2.10.2006 6:39am
Taimyoboi:
Does "outside the campus" mean off-campus, or outside of a campus building on-campus?
2.10.2006 10:14am
drtaxsacto (mail) (www):
The Leonard law is really a lemon law. Assemblyman Leonard was so incensed by some alleged abuses of a speech code at Stanford that he pushed this idea though - ignoring a long tradition in the courts of deference to private institutions in applying First Amendment rights. It is one of those things that should be cleaned up at sometime.
2.10.2006 10:45am
Deoxy (mail):
"One of the first rules of statutory construction is that statutes must be construed to avoid surplusage."

And, to that, I direct your attention to the abomination that is the Kelo decision...
2.10.2006 11:06am
Christopher Cooke (mail):
FYI,this is from legislative history of the Leonard Law:

"It is the intent of the Legislature that a student shall have the same right to exercise his or her right to free speech on campus as he or she enjoys when off campus." - Section 4(b) of Stats.1992, c. 1363 (S.B.1115) 9/30/1992

So, notwithstanding some arguably sloppy draftsmanship, I think this supports the reading of the statute, that "when engaged" should probably be read, "if engaged," and that the statute extends the First Amendment and California Constitution's free speech protections to conduct on private university campuses.
2.10.2006 2:50pm