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Further Defense of College Students' First Amendment Rights

-- and rejection of the "must prevent hostile environment harassment" justification for broad campus speech codes -- from Judge George King in Lopez v. Candaele.

The analysis is generally focused on campus speech codes, and distinguishes hostile work environment harassment law generally from similar restrictions emposed on college students. But part of its reasoning can also apply to First Amendment challenges to the application of hostile work environment harassment law to otherwise protected speech:

Defendants quote the Supreme Court’s statement in R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), that “since words can in some circumstances violate laws directed not against speech but against conduct (a law against treason, for example, is violated by telling the enemy the Nation’s defense secrets), a particular content-based subcategory of a proscribable class of speech can be swept up incidently within the reach of a statute directed at conduct rather than speech.” This reliance on R.A.V. misconstrues the context and meaning of the Court’s discussion and mistakes its relevance to this case. In context, the Court was attempting to distinguish between instances where content-based regulation of a subcategory of otherwise proscribable speech is unconstitutional (as in the St. Paul ordinance at issue) from those where “a particular content-based subcategory of a proscribable class of speech can be swept up incidentally within the reach of a statute directed at conduct rather than speech.” The issue before us is whether the Policy, in including expression within the scope of its regulation, unduly reaches a substantial amount of otherwise protected speech. It is no response to assert that a law may regulate a content-based subclass of unprotected speech that is swept up incidentally within the reach of a law targeting conduct rather than speech. Indeed, the Court went on to observe that “[w]here the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy.” Here, the Policy is undeniably aimed at the content of the expression by prohibiting speech involving certain content, i.e., sexist comments, insulting remarks or intrusive comments about one’s gender.

Defendants also cite the Court’s comment that “sexually derogatory ‘fighting words,’ among other words, may produce a violation of Title VII’s general prohibition against sexual discrimination in employment practices, 42 U.S.C. § 2000e-2; 29 CFR § 1604.11 (1991).” They argue that “[t]he [R.A.V.] Court singled out a time-tested definition of sexual harassment as an example of a valid proscription of ‘sexually derogatory fighting words.’” If this argument means that fighting words can be within the cited CFR definition of sexual harassment, it is both correct and irrelevant. Our conclusion is not that the Policy has no valid application. Rather we held that it was unconstitutionally overbroad by sweeping within its reach a substantial amount of protected speech. If, on the other hand, Defendants mean that all speech that offends this definition is necessarily proscribable as sexually derogatory fighting words, then we reject this argument as an unwarranted and unconstitutional enlargement of what constitutes fighting words.

This fits well with the argument about R.A.V. that I've made as to hostile work environment harassment law.

This case stems from the incident in which an L.A. City College speech class professor refused to grade a student's presentation, apparently because of the religious nature of the student's presentation, the student's expression of opposition for same-sex marriage in the presentation, or both. (The professor apparently also called the student a "fascist bastard" in front of the class for having supported the anti-same-sex-marriage Prop. 8, and refused to let the student finish the presentation.) The case filed over that became a general challenge to the campus speech code, which the court preliminarily enjoined in July. The decision I link to today rejects the defendants' motion for reconsideration.

Related Posts (on one page):

  1. Further Defense of College Students' First Amendment Rights
  2. Los Angeles City College "Sexual Harassment" Policy Preliminarily Enjoined on First Amendment Grounds:
ruuffles (mail) (www):
In the next (first?) conference, SCOTUS will consider Frazier v Smith, an even more important free speech case.

Here is SCOTUSBlog summary

Whether a state statute requiring parental consent for minor students in public elementary, middle and high schools to be excused from a classroom Pledge of Allegiance recitation is facially unconstitutional?

The 11th Circuit did some mighty fine hair-splitting when it upheld the parental consent requirement.
9.24.2009 1:01pm
DennisN (mail):
Even before the matter comes before a court, aren't the professor's calling the student a "fascist bastard" fighting words and subject to the school ban on free speech?

When the Court uses the words, "We are amused," in the second paragraph of Merits of the Motion, it is probably not going to be a good day. ;-)
9.24.2009 2:01pm
one of many:
Actually Dennis I had the same thought, but after due consideration I would say that "fascist bastard" is no longer fighting words. At this point anyone who might be subjected to them has no doubt been subjected to them so many times that they are inured to impact of them.
9.24.2009 4:11pm
PersonFromPorlock:
DennisN:

Even before the matter comes before a court, aren't the professor's calling the student a "fascist bastard" fighting words and subject to the school ban on free speech?

For that matter, doesn't the gratutious conjoining of "fascist" with "bastard" create a hostile environment for bastards?
9.24.2009 4:15pm
Fub:
PersonFromPorlock wrote at 9.24.2009 4:15pm:
For that matter, doesn't the gratutious conjoining of "fascist" with "bastard" create a hostile environment for bastards?
As well as a hostile environment for fascists of legitimate parentage.
9.24.2009 5:18pm
troll_dc2 (mail):
I have always been uncomfortable about using the concept of harassment to squelch speech in the employment context. The courts have stretched the Supreme Court's concept of "severe or pervasive" too far and have been too deferential to jury verdicts finding liability. I would limit the protection to employees who are captive audiences for truly offensive statements. All too often, a sexual-harassment claim is raised only after a discharge to try to bolster a claim that the discharge is illegal.

I am not sure how employment law applies to the classroom or even on campus. Nobody has a right not to be offended, and certainly, in a classroom discussion, it is totally wrong to punish someone for saying something that other people do not like. So not only is a broad campus speech code unconstitutional, I am not convinced that even a narrow code ought to survive either. Can anyone set forth the sort of anti-harassment speech code that would be lawful? (Of course, I am referring to public institutions; private ones may be able to impose unreasonable speech restrictions on their students.)
9.24.2009 5:38pm
Jiffy:

Can anyone set forth the sort of anti-harassment speech code that would be lawful? (Of course, I am referring to public institutions; private ones may be able to impose unreasonable speech restrictions on their students.)


Perhaps a code that prohibits fighting words, true threats, and harassment that the Supreme Court held violated Title IX in Davis v. Monroe County Bd. of Ed., that is, conduct that "is so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims' educational experience, that the victim-students are effectively denied equal access to an institution's resources and opportunities."
9.24.2009 7:10pm
Anon Y. Mous:
King, George rules against government speech codes. I like it!
9.24.2009 9:01pm
John Pack Lambert (mail) (www):
DennisN has a very good point. The calling of the student a "facist bastard" for supporting man/woman marriage would in theory violate the speech code, but do not hold your breath for speech codes to be used against liberal speech.
However, it is the overly broad nature of the Colleges speech code and not the discriminatory application to only silence certain forms of political speech that is the issue at debate here. This is partly because victimhood theory would show that people speaking for homosexuals can not be in the wrong because they are "trying to right historical injusticies" and so in doing so can subject supporters of man/woman marriage as a social institution to all manner of abuse.
This same phenomenon is shown in college courses where African-Americans are proactively encoraged to express hate towards Euro-Americans and probably can be traced back to the rage as a method of dealing with claimed recovered memories of childhood sexual abuse that were all the rage (no pun intended) from 1988-1992 or so.
The close connections between radical feminist views that woman are regularly sexually abused as children to condition them for later rapes by husbands and boyfriends and the use of rage as the therapy of choice for childhood sexual abuse "survivors" may lead in a logical progression to the professor calling the student a "facist bastard" for expressing views out of line with the official line of the elite establishment.
9.24.2009 10:26pm
John Pack Lambert (mail) (www):
You know PersonfromPorlock, you argument about the abusive term used by the professor is the only take on it that is likely to make any headway in California courts.
This is the state where a student was disciplined for refering to a remark derogatory to their religion as "gay" but the people speaking ill of the students religion suffered no consequences.
9.24.2009 10:28pm

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