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San Francisco State University Civility Code Temporarily Enjoined:

From The Recorder ($):

U.S. Magistrate Judge Wayne Brazil issued a temporary injunction against the CSU system Wednesday, in which he struck down a portion of the CSU conduct code that mandates students "be civil to one another." That language would likely not survive First Amendment scrutiny at trial, the magistrate found.

"It's fine to say, 'We hope you're civil to each other,'" Brazil said from the bench. "It's not fine to say, 'We'll punish you if you're not.'"

The magistrate also told the CSU system it can only discipline students for "intimidation" or "harassment" when the health or safety of another person is threatened. In addition, Brazil struck down language in the San Francisco State University student handbook that holds out the possibility of corrective action against student groups if their members behave in opposition to SFSU goals and principles.

The case grows out of an anti-terrorism rally held last year by College Republicans at SFSU. The event turned testy when the Republicans stomped on Hamas and Hezbollah flags bearing "Allah" written in Arabic script. Onlookers from the school's Muslim community objected, and one started to climb on stage to remove the flag, according to the university's court filings. The two sides engaged in heated debate.

After the protest, the school received a complaint alleging the Republicans had violated the student code by attempting to "incite violence" and create a hostile environment, the school says in its court filings. After an investigation, the complaint against the Republicans was dismissed....

For more on the incident, see here.

Kazinski:
How is SFSU going to educate its students if it can't tell them what to think?

The decision seems to run counter to the ninth circuit's Harper vs Poway that allowed the authorities to ban non-pc speech.
11.2.2007 2:01am
HappyConservative:
While I feel today's robust protections for speech have wandered far away from the original understanding of the First Amendment, I support these sorts of interpretations nonetheless.

I do wonder whether forcing these schools to implement these sensible policies is a judicial function, however.

I also doubt that if even the 1st Amendment were being interpreted correctly, which I doubt, that the purpose of the 14th Amendment was to apply such for all citizens against the states.

I am wholeheartedly in agreement with the sentiment that motivates the magistrate to strike down the CSU SF rule. But, I feel very ambivalent about the abuse of the Constitution that is going on here for that good end. Do the ends justify the means? I tend to think not.
11.2.2007 2:16am
Christopher Cooke (mail):
So, Happy Conservative's real quibble is with the incorporation doctrine? I am not too sure that I would applaud a magistrate or a district court judge or a circuit court panel finding that the 1st Amendment was inapplicable because the incorporation doctrine was wrong. In fact, that would strike me as the ultimate in improper judicial behavior-- a lower court ignoring the clear mandates of 70 years of Supreme Court precedent. I find it ironic that someone who sees himself as a "conservative" would feel ambivalent that a magistrate judge is following a clear line of precedent. Yes, by all means, engage in an interesting academic debate about the merits of the incorporation doctrine, but I would not criticize the magistrate judge's decision for applying it, or suggest that it is an example of an "ends justify the means" approach.
11.2.2007 2:46am
tvk:
I have little doubt that the decision is correct. At the same time, why is it OK for Magistrate Judge Brazil to require everyone to be civil to each other in his courtroom, but not OK for CSU to require it?
11.2.2007 2:52am
HappyConservative:
Mr. Cooke,

I was not focusing on the institutional role of a lowly magistrate, but rather on the role of law in this area in general.

I agree that it would not be the place of a lowly magistrate to try to reverse the Supreme Court. However, I do think that the Supreme Court has gone seriously astray here. Not just with incorporation. But with its interpretation of the First Amendment itself.
11.2.2007 3:04am
HappyConservative:

At the same time, why is it OK for Magistrate Judge Brazil to require everyone to be civil to each other in his courtroom, but not OK for CSU to require it?


Actually, I am sure that it is okay for CSU to require students and anyone else to be "civil" (i.e. really, not disruptive) in the classroom when it is necessary for the business of education to occur.

And in fact, there is no civility requirement in the court room. Cross examinations can be vicious. But, there is a requirement that you not be disruptive.
11.2.2007 3:06am
Christopher Cooke (mail):
tvk: I think you might be able to punish disruptive behavior in a classroom, just as a judge can punish it in a courtroom. My guess is, without reading the opinion (I will do that tomorrow), the student code went beyond that and could not be defended as a reasonable time, place or manner restriction.
11.2.2007 3:09am
Aradruin (mail) (www):
I wonder if Justice Thomas would support this ruling after what he said in his concurring opinion in Morse v. Frederick. Does his opinion change for post-high school? Not that his disapproval matters, given that the other 8 justices disagree with him.
11.2.2007 9:48am
Eli Rabett (www):
When does uncivil discourse become fighting words which is the practical problem here?
11.2.2007 10:21am
CEB:
It's funny--whenever I see the acronym "SFSU" I read it as "STFU." Kind of appropriate, I guess.
11.2.2007 11:00am
The Drill SGT:
CEB,

I see the same thing.
11.2.2007 11:16am
KWAbrams:
What I find interesting is that if the flag was an American one, burned instead of stomped, and the student group one of left political leanings, the incident would have been a non-issue. If someone blasphemes, disrespects you, or belittles your culture or religion, get over it. We have no right to be shielded from most offensive speech, symbolic or not.
11.2.2007 11:24am
Ralph Phelan (mail):
Eli Rabett asks:
When does uncivil discourse become fighting words which is the practical problem here?

while KWAbrams notes that:
if the flag was an American one, burned instead of stomped, and the student group one of left political leanings, the incident would have been a non-issue.

Another problem becomes whether certain groups, by being more easily incited to violence by words or sympbolic actions, will get a "hecklers veto" that gives them both unequal protection from offensive speech and simultaneously unequal leniency when they engage in speech offensive to others.

I would say that that is in fact how most campuses operate today.
11.2.2007 11:48am
Oren (mail):

After an investigation, the complaint against the Republicans was dismissed....


Sounds like the internal system worked pretty well . . .

Why are the courts involved now?
11.2.2007 11:50am
Prof. Ethan (mail):
Abrams and Phelan are correct: if this had been a leftist anti-war student group, the flag an American flag, and it had been burned, it would have been a non-issue.

The problem is that the national U.S. Muslim Students Association, which is a branch of the radical Muslim Brotherhood, is striving to prevent the expression of any expression critical of Islam on campus. The demo was a demo against a terrorist organization--but the MSA wanted it punished, and succeeded in having it punished by the SF State administrative system. Students involved in organizing the demo had their lives and studies disrupted for weeks, even though a student court eventually found them innocent. But the "case" against the organizers should've been dismissed immediately and out of hand--and it wasn't. I think the subsequent disruption of these students' lives and studies by a malevolent organization intent on suppressing speech (the MSA), backed by the SF State bien-pensant administration, is why they went to court.
11.2.2007 12:09pm
Dave N (mail):
Oren asked, "Why are the courts involved now?" I am guessing that the parties claimed standing on theories that a) the speech code chilled their ability to hold other anti-Hamas rallies in the future; and b)the action was subject to repetition and otherwise evading review.
11.2.2007 12:14pm
Happyshooter:
Sounds like the internal system worked pretty well . . .

Why are the courts involved now?


Because the government's restrictions on speech are illegal.
11.2.2007 12:25pm
Hoosier:
Non-Lawyer Question: "Health and saftey" can be a very flexible phrase--see, e.g., the Clinton Administration's use of the phrase in the matter of abortion restrictions.

Any chances of that happening here as well? Or is the chance remote, because unlike abortion we are not dealing here with a medical condition? Coukld "mental health" fall under this rubric, as in the abortion debate?

Thanks.
11.2.2007 12:45pm
Mr. Bingley (www):
Remember, Bill and Ted told us to "Be Excellent to Each Other".
11.2.2007 12:49pm
Kazinski:
Oren,
Let me explain it to you this way, if your neighbor reported you to the police for having anti Bush/Cheney bumper stickers on your car, and the police invesitgated you for 6 months compelled your appearance at several hearings, and then finally cleared you of any charges, you'd be happy with the system wouldn't you?

It is an abuse of the system when "the authorities" use the weight of their authority to investigate "crimes" when alleged facts do not constitute an infraction.
11.2.2007 1:04pm
Richard Aubrey (mail):
Kaz. You forgot paying exorbitant legal fees to a hired advocate.
System worked. Yup. Ask Billy Dale.
11.2.2007 1:06pm
Hans Bader (mail):
Kazinski's is right: unduly prolonged investigations for speech violate the 1st amendment even if a verdict of innocence ultimately results. See White v. Lee, 227 F.3d 1214 (9th Cir. 2000) (lengthy federal investigation of citizens for "discrimination" in response to their speech against housing project for the "disabled" (alcoholics) violated clearly established first amendment rights, even though the investigation was ultimately dropped).

The chilling effect on speech itself violates the first amendment. See, e.g., Pfizer v. Giles (3d Cir. 1994) (Alito, J.) (granting mandamus to overturn denial of summary judgment sought by defendant and dismissing lawsuit based on protected trade association activities that were thereby chilled).
11.2.2007 1:08pm
CJColucci:
Assuming -- a large assumption, to be sure, but bear with me -- that enforcement is even-handed and politically neutral, why can't a public university insist on standards of decorum and considerate behavior beyond the avoidance of "disruption" or "fighting words"?
11.2.2007 1:38pm
KWAbrams:
CJColucci,
I'm no expert on First Amendment, but I would imagine the answer to your questions is "For the same reason that the government cannot impose civility standards on speech." If the school is public, then its part of the government and subject to the First Amendment through the incorporation doctrine. Free speech is meant to be free, which means that government (in all its forms) should not prevent people from offending each other because it wants to enforce some kind of decorum.
11.2.2007 2:01pm
Ralph Phelan (mail):
CJColucci asks:
"Assuming -- a large assumption, to be sure, but bear with me -- that enforcement is even-handed and politically neutral, why can't a public university..."

The counterfactual is so absurd that I can't actually picture the situation in my mind, and therefore have trouble reasoning about the rules such a utopian institution could reasonably institute.
11.2.2007 2:43pm
Jim O'Sullivn (mail) (www):
Wait til the Ninth Circuit gets its hands on this one.
11.2.2007 3:06pm
dejapooh (mail):
Would members of the Muslim community objected if the word Allah had been cut from the flags and preserved?
11.2.2007 3:17pm
Richard Aubrey (mail):
Would anybody have dared complain if the MSA folks had trampled something like, oh, say, somebody's phylacteries?
Or head?
Not likely, on form.
11.2.2007 3:22pm
KWAbrams:
Dejapooh,
Should it matter? One of the main (and hardest to swallow for many) aspects of freedom of speech is that no matter how deeply you hold a certain view, other people are allowed to trash it. Life's tough and no one should have the right to enforce some kind of orthodoxy on non-violent speech because it violates someone's definition of decorum.
11.2.2007 3:24pm
dejapooh (mail):
Legally, it does not matter, but that does not mean I am not curious about the answer. While I appreciate the right of the Republican group to offend, I can also see the value of making speech and seeing if you can make a slight modification to preserve feelings. Is it possible that the Republican students wanted to make their speech and not offend moderate Muslims?
11.2.2007 3:53pm
CJColucci:
KWAbrams:
I am, of course, familiar with the First Amendment, and have ltigiated a number of cases involving it, so I think something more than citation to it is required. Do you really think that because the First Amendment does not allow the government to jail people for yelling "Nigger" or "Asshole" generally it therefore doesn't permit the Department of Motor Vehicles to fire DMV clerks who shout "Nigger" at black customers, or doesn't permit a public college to discipline students who call each other "Asshole" in the course of a classroom discussion?
11.2.2007 3:59pm
Oren (mail):
Kazinski &Hans,

What makes you think the investigation was either excessive or drawn-out? I had my alma-matter "investigate" a student group of which I was signator -- I never really noticed actually.
11.2.2007 4:06pm
Oren (mail):
s/"investigate"/"investigated"
11.2.2007 4:12pm
Prof. Ethan (mail):
Dear Dejapooh,

In what way would *moderate* Muslims be offended by a rally against the intentional targetting for murder of Israeli civilians?
11.2.2007 4:14pm
Elliot123 (mail):
Is there some reason we should care if some speech offends Mulsims, Christians, Wiccans, attorneys, or Mummers?
11.2.2007 4:31pm
Prof. Ethan (mail):
Dear Oren:

You wonder whether the SFSU investigation was really so onerous or prolonged.

FIRE's site has a PDF of the letter sent by SFSU's President to FIRE. In it, he acknowledges the disciplinary procedure was flawed because it took too long to exonerate the students and states the administration is "looking more comprehensively" at the policy in general.
11.2.2007 4:33pm
MDJD2B (mail):

Do you really think that because the First Amendment does not allow the government to jail people for yelling "Nigger" or "Asshole" generally it therefore doesn't permit the Department of Motor Vehicles to fire DMV clerks who shout "Nigger" at black customers,The worker will be fired.



In this case the Pickering balance test is applied to determine whether the right of free speech is outweighed by the interests in efficiency in the carrying out by the agency of its publicly mandated tasks. Assuming the threshoold question of whether this is public or internal speech is passed, which it would be in this case.


or doesn't permit a public college to discipline students who call each other "Asshole" in the course of a classroom discussion?


This is a time/place/manner issue. Calling someone "asshole" in class or in court is not the same as calling them "asshole" on the quad or the courthouse steps.
11.2.2007 4:52pm
BGates:
Dejapooh,
OK, we can't burn a flag that says 'Allah' because that's more offensive to moderate Muslims than Hamas is. Suppose someone spraypaints 'Allah' in flowing Arabic script on the side of my house - may I remove it?
11.2.2007 5:00pm
Bill_C:
Regarding the right to a "speedy trial" in campus as brought up by several commenters':

I think the issue also goes to the broader issue of general due process in a campus setting: If a student under charge wants a speedy "trial" he or she should get it if they feel the charge is bogus. Drawing it out just gives the fraudulent plaintiff more time to respin an initial illegitimate change into something more palatable, and dare I say credible. Meanwhile the charged student remains accused of "something" or worse "anything," and that could carry significant leverage during, for example, student organization funding season, or could ring the dinner bell for people with any grievance or specious issue with the "defendant" to come out of the woodwork and get themselves a piece of vendetta for their own disagreement with the student or group.

In the SFSU case, after the initial charge came out, those who wanted the CR on the chopping block did just that, making everything from civility to something about a mural on campus.
11.2.2007 5:17pm
dejapooh (mail):
Prof,

I propose that many moderate Muslims would not object to stomping on a flag of Hamas if it were not for the stamping of the name of their god. I propose it because I do not know.

As for spray painting Allah on your personal property, I would guess it would be up to you, but extremists would surely object to obliterating the name of their God.

Interesting point, What would happen if we painted Allah in Arabic on our Humvees? True observers could never blow it up intentionally.
11.2.2007 6:10pm
Prof. Ethan (mail):
Dejahpooh, what would it say about these Muslims as *moderates* if what you believe was actually the case?

I don't think it *is* the case, actually. My understanding is that, as a matter of historical fact, this protest about the stomping of the Hamas flag came only from a few extremists. But for its own reasons the administration at SFSU, instead of immediately rejecting the complaint as absurd, allowed it to go forward, thereby disrupting for six months the lives of the conservative students who organized the anti-terrorism demonstration.
11.2.2007 7:27pm
New Pseudonym (mail):
Let's see:

SFSU (an agency) promulgated a regulation.

The magistrate judge overruled it.

Ergo, he's activist.
11.2.2007 7:36pm