Ninth Circuit ruling in California student expression case may be “dangerous for campus speech,” lawyers say

CALIFORNIA — In the case of a student who sued California State University-Fresno for disciplining him under a harassment policy for his political speech, a recent ruling by the U.S. Court of Appeals for the Ninth Circuit may have given college administrators greater leeway to restrict speech — potentially jeopardizing the rights of student journalists.

On Thursday, the Ninth Circuit handed down its decision in O’Brien v. Welty, a case that involves student speech and student conduct codes. The court ruled that the university harassment policy was not unconstitutional, but a student who was disciplined under the policy for questioning faculty can proceed with his First Amendment retaliation claim.

Neil O’Brien, a conservative student activist who attended Fresno State, was put on disciplinary probation in September 2011 after he confronted two professors in the Chicano and Latin American Studies department at their offices with a video camera, asking questions about their involvement in a campus magazine aimed at Latin-American students.

After reading a poem published in La Voz de Aztlan — a supplement to the student newspaper, the Collegian — that described America as “land robbed by the white savage” and “the place of greed and slavery,” O’Brien set out to question the magazine’s faculty adviser Victor Torres.

O’Brien approached Torres’ open office door and asked if he had approved of the publication of the poem, according to the circuit court opinion. Torres refused to speak on the matter and, after O’Brien’s multiple attempts to question him, called the campus police. O’Brien then went to the open office door of Professor Maria Lopes and asked her the same question, which she also refused to answer. When O’Brien insisted, Lopes also called the campus police. Both professors then filed complaints with the campus police.

After disciplinary proceedings, the university found that Torres and Lopes could reasonably find O’Brien’s behavior “harassing” and “intimidating” in violation of the Student Conduct Code harassment policy. The college disciplinary board put O’Brien on probation; prohibited him from coming within 100 feet of CLS faculty, offices or onto the second floor of the social sciences building unless he had an prescheduled appointment or class; and barred him from holding any campus office — including with Fresno State’s chapter of “Young Americans for Liberty,” which he founded. He was not disciplined under any policy restricting videorecording, as there was no such policy.

O’Brien repeatedly claimed that university officials sought to silence his controversial viewpoints, pointing to the dean of students allegedly requesting other students and faculty members gather information and complaints to use “against him.”

In November 2012, O’Brien filed suit, alleging that multiple university and law enforcement officials violated his First and Fourteenth Amendment rights in the disciplinary process and imposed sanctions.

A district court dismissed O’Brien’s complaint in May 2013, which he then appealed.

The federal appellate court affirmed the district court’s decision that the university policy prohibiting harassment and intimidation that poses a threat to others is not unconstitutionally overbroad or vague, but held O’Brien’s First Amendment retaliation claim is plausible. Therefore, the court reversed in part and remanded the case to the district court for further proceedings.

Ninth Circuit Judge William Fletcher wrote in the court’s opinion that the allegations could “reasonably support a conclusion that faculty members and administrators at Fresno State not only disagreed with the expressed political views of O’Brien, but also sought to punish and muzzle him in retaliation for his expression of those views.”

Brian Leighton, O’Brien’s attorney, said if he can show the district court on remand that the discipline was in retaliation to O’Brien expressing his free speech rights prior to the altercation, there is “a lot of room left to win.”

He said that Fresno State administrators “hated” O’Brien for his views, and probably thought “we have a conservative crackpot on our hands.”

“Even when it turned out that after he was sanctioned and doing things that were in compliance with that order, they still sanctioned him further,” Leighton said, referring to two other incidents involving O’Brien and Fresno State faculty and police.

In early December 2011, O’Brien returned to the social sciences building twice to evaluate the structure for compliance with the Americans with Disabilities Act for a class assignment. The campus police were called both times and O’Brien was detained until Leighton arrived at the police station with proof he had not violated his stay-away order.

Leighton said he is continuing to fight for money damages for O’Brien and his attorney fees.

Though the Ninth Circuit concluded O’Brien’s case could go forward on an unconstitutional retaliation theory, some First Amendment lawyers are saying the opinion may come with a price: student press rights.

Frank LoMonte, executive director of the Student Press Law Center, which filed an amicus brief in support of O’Brien, said the ruling poses the risk of a “spillover effect” if colleges take this as a license to punish students for nothing more than “aggressive interviewing tactics.”

“There are times when it’s necessary to have a confrontational interview,” LoMonte said. “There are times when people dodge your phone calls and avoid your emails, so you have to show up at their offices. And if that’s all it takes to have you punished, that could open up aggressive reporters to being suspended or expelled from college.”

He said O’Brien was not a voyeur following someone up the steps of their house, but rather a student questioning a government employee during government office hours about an official business matter.

“It doesn’t seem like the [appellate] court was sufficiently protective of the right to gather information in a confrontational setting,” LoMonte said. “Not every interaction is going to be a welcome and pleasant one, but we don’t have a duty to always be pleasant and deferential to government officials.”

In the 2013 amicus brief, a volunteer attorney for the SPLC warned that vaguely defined and broadly applied “harassment” and “intimidation” policies undermine student speech rights.

“If the university wants to restrict First Amendment protected behavior by students, it has to at least provide clear notice of what it is restricting, even in a nonpublic forum or a limited public forum,” the brief read. “The university did not do so here.”

Eugene Volokh, a law professor at University of California-Los Angeles whose First Amendment Amicus Brief Clinic filed the amicus brief on behalf of SPLC and the Foundation for Individual Rights in Education, wrote in a Washington Post column that the opinion threatened student rights.

In the piece, Volokh said the court’s decision has “pretty striking implications for student journalists.”

“So I’m troubled by the Ninth Circuit’s opinion in this score,” he wrote. “I agree that universities must have the power to restrict speech that genuinely threatens and intimidates people. But defining threat and intimidation as broadly as the Ninth Circuit does here strikes me as quite dangerous for campus speech.”

SPLC staff writer Kaitlin DeWulf can be reached by email or at (202) 974-6317.

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