The Volokh Conspiracy

I blogged about Turkish Coalition of America, Inc. v. Bruininks (8th Cir. May 3, 2012) when the district court decision came down, and yesterday the Eighth Circuit agreed with the district court’s bottom line (though disagreed with the district court’s decision about standing). I think the District Court and the Eighth Circuit both got it quite right — the defendant university’s labeling the Turkish Coalition’s site “unreliable” and advising students against relying on the site in their research papers doesn’t violate the Coalition’s First Amendment rights, and is also not actionable libel:

TCA alleges that the defendants defamed it by stating that TCA’s website (1) engages in “denial” of the Armenian genocide in Turkey during World War I, (2) is “unreliable,” (3) presents a “strange mix of fact and opinion,” and (4) is an “illegitimate source of information.” …

With regard to the first challenged statement, TCA argues that the Center’s accusation of “denial” is false because the term “denial,” in the context of genocide studies, is a term of art that implies denial of well-documented underlying facts associated with a genocidal event. TCA points out that its website does not deny certain underlying historical facts about the fate of Armenians in Turkey during World War I, such as that “certainly hundreds of thousands of Armenians died during” what it characterizes as “the Armenian revolt.” Under TCA’s interpretation, however, the term “denial” would merely express a subjective evaluation of the credibility of the historical sources for every assertion on the TCA website, many of which TCA admits are “contested.” Such an evaluation of credibility is essentially an opinion, “not capable of being proven true or false,” and thus not actionable in defamation, because different historians might well come to different conclusions. On the other hand, the “denial” statement reasonably can be construed as stating simply that the TCA website denies that the treatment of Armenians within Turkey during World War I meets the definition of the term “genocide.” A statement about the content of the TCA website is capable of being proven true or false. Because the TCA website does, in fact, state that it is “highly unlikely that a genocide charge could be sustained against the Ottoman government or its successor” based on the historical evidence, the Center’s statement under this interpretation is true and, thus, still not actionable….

The remaining three statements can be interpreted reasonably only as subjective opinions, rather than facts.

So argue two lawyers in a recent Chronicle of Higher Education article, warning of legal liability if colleges don’t take suitable steps to suppress such speech. The article is short on definitions of cyber-bullying, but calls for colleges to update their “anti-bullying and social-media policies to take into account the immediate and significant harm that can be inflicted when bullying behavior leaves the dormitory or the quad and goes online,” and to have administrative processes to “foster a safe and supportive” (and “more inclusive”) “environment for all of its students” by “[m]anaging the recent and exponential growth of social-media sites and digital forms of communication.”

This sounds to me like more than just a call for punishing constitutionally unprotected speech, such as threats of violence — though how much more is hard to tell. It will be interesting to see what new university speech codes aimed at preventing “cyber-bullying” are going to spring up in the coming years.

A Penn student organization put on a fashion law symposium, and created the following poster:

The top part of the poster echoes the Louis Vuitton design, but with copyright and trademark symbols worked into it. You can see Louis Vuitton’s cease-and-desist letter, and the Penn Office of General Counsel we-won’t-case-or-desist response. The Penn response strikes me as quite persuasive — I think the use of the marks can’t qualify as dilution, is unlikely to confuse, and is likely to be a fair use in any event, for much the same reasons that the Penn letter gives. And I’m glad that Penn is refusing to go along with Vuitton’s demands.

Here’s a bill currently being considered by the Arizona Legislature:

A. If a person who provides classroom instruction in a public school engages in speech or conduct that would violate the standards adopted by the federal communications commission concerning obscenity, indecency and profanity if that speech or conduct were broadcast on television or radio:

1. For the first occurrence, the school shall suspend the person, at a minimum, for one week of employment, and the person shall not receive any compensation for the duration of the suspension….

2. For the second occurrence, the school shall suspend the person, at a minimum, for two weeks of employment, and the person shall not receive any compensation for the duration of the suspension….

3. For the third occurrence, the school shall terminate the employment of the person….

B. For the purposes of this section, “public school” means a public preschool program, a public elementary school, a public junior high school, a public middle school, a public high school, a public vocational education program, a public community college or a public university in this state.

What a silly bill. First, what’s the point of this sort of micromanagement by the legislature? I would guess that in most schools, teachers’ vulgarities will get them disciplined by administrators even without a state statute. Moreover, I would assume that such discipline can be more finely calibrated than the statute suggests — is it really obvious that a high school teacher who swears in the classroom three times in his career (perhaps given some extenuating provocation) must be fired?

Second, the FCC standards are notoriously vague, as this Second Circuit decision (now being reviewed by the Supreme Court) laid out. The standards have shifted dramatically over time, and by subject matter. I assume that even under the FCC’s current, more restrictive, standards a classroom discussion at Arizona State’s law school on the “Fuck the Draft” case can use the word “fuck,” but who knows, given the FCC standards?

Now, to be sure, the government acting as employer has considerable authority to restrict its employees’ speech, even when the restrictions are vague, at least outside the context of university teaching. (For cases striking down as unconstitutionally vague certain restrictions on speech in university teaching, see Cohen v. San Bernardino Valley College, 92 F.3d 968 (9th Cir. 1996); Silva v. University of N.H., 888 F. Supp. 293 (D.N.H. 1994).) And some such restrictions are necessary. Even government employers must be free to discipline employees for rudeness to coworkers or to members of the public, even without a clear definition of “rudeness.” Likewise, teachers who say cruel things to their students should be disciplined even without a clear definition of “cruel,” and the same may apply to inappropriate vulgarities. But this sort of judgment, it seems to me, is best handled through internal employment decisions that are based on administrators’ judgment of what works for this particular job, at this particular grade level in this particular subject at this particular school, not through the legislature calling on administrators to apply federal communications law standards that are confusing even to communications lawyers.

Third, the bill on its face potentially applies even to off-the-job speech (and “conduct”), since it covers any “person who provides classroom instruction in a public school” without limiting it to action while providing classroom instruction in a public school. That, though, is a comparatively minor drafting glitch that could be easily fixed in the legislative process — unlike the other problems I identify. [UPDATE: Just to be clear, by "potentially" I mean that the language can be so interpreted, not that it will necessarily be so interpreted; the glitch is in the ambiguity, not in the language unambiguously applying to off-the-job speech.]

Now I’m not saying such a bill would necessarily violate the First Amendment, at least setting aside the possible vagueness problems at the university level, and limiting the bill to on-the-job speech. Public employers are entitled to speak, for instance by teaching particular subjects to students in a particular way. To speak, they need to hire employees to speak for them. The employers must therefore have the right to dictate what employees who speak on the employer’s behalf say, and to fire employees who turn their government-provided platform into the employee’s own show rather than the government’s. (I think that’s true even as to public universities, possibly setting aside some heightened vagueness concerns. For good institutional reasons, such universities give their professors a good deal of flexibility, but if UCLA demanded that I teach a particular set of topics in my class, or teach them from a particular viewpoint, or teach them without using certain words, I think UCLA would be within its constitutional authority.)

But that the state may do this doesn’t mean it should do this — and here, I see no good reason for the state to enact such a law, and good reasons for it not to.

A Foundation for Individual Rights in Education video, about the now-notorious University of Wisconsin-Stout Firefly poster incident:

Here’s a brief summary of the incident from FIRE:

On September 12, 2011, Professor Miller [UPDATE: who is a professor of theater] posted on his office door an image of Nathan Fillion in Firefly and a line from an episode: “You don’t know me, son, so let me explain this to you once: If I ever kill you, you’ll be awake. You’ll be facing me. And you’ll be armed.” On September 16, UWS Chief of Police Lisa A. Walter emailed Miller, notifying him that she had removed the poster and that “it is unacceptable to have postings such as this that refer to killing.”

Amazed that UWS could be so shockingly heavy-handed, Miller replied by email, “Respect liberty and respect my first amendment rights.” Walter responded that “the poster can be interpreted as a threat by others and/or could cause those that view it to believe that you are willing/able to carry out actions similar to what is listed.” Walter also threatened Miller with criminal charges: “If you choose to repost the article or something similar to it, it will be removed and you could face charges of disorderly conduct.”

Later on September 16, Miller placed a new poster on his office door in response to Walter’s censorship. The poster read “Warning: Fascism” and included a cartoon image of a silhouetted police officer striking a civilian. The poster mocked, “Fascism can cause blunt head trauma and/or violent death. Keep fascism away from children and pets.”

Astoundingly, Walter escalated the absurdity. On September 20, Walter emailed Miller again, stating that her office had removed the poster because it “depicts violence and mentions violence and death.” She added that UWS’s “threat assessment team,” in consultation with the university general counsel’s office, had decided to have the poster removed, and that this poster was reasonably expected to “cause a material and/or substantial disruption of school activities and/or be constituted as a threat.” College of Arts, Humanities and Social Sciences Interim Dean Raymond Hayes has scheduled a meeting with Miller about “the concerns raised by the campus threat assessment team” for this Friday.

Ilya blogged about this lawsuit when it was filed, so I thought I’d note that today the Eighth Circuit allowed the lawsuit to go forward, “revers[ing] the district court’s grant of summary judgment based on qualified immunity.” Naturally, this is not a finding that the law school did indeed discriminate, only that a jury should make that decision. “Dean Jones’s conduct confirmed the faculty’s recommendations, which a jury ultimately could conclude violated the First Amendment.”

Thanks to How Appealing for the pointer. On Brief, Iowa’s Appellate Blog has more.

That’s what one Hamline University business school professor said, in opposing the hiring of another prospective business school professor, according to the St. Paul Pioneer Press:

A Hamline University professor said Wednesday that hiring [former Republican gubernatorial candidate] Tom Emmer would have been a bad business decision for the school, while Emmer said “political bigotry” in higher education is discriminating against people with conservative views like his….

Asked whether the decision not to hire Emmer had anything to do with faculty concerns about his political views, [Hamline spokeswoman JacQui] Getty said Hamline would have no comment beyond a statement … [that] said “there were conversations” about Emmer joining the faculty but “no finalized agreement.”

Jim Bonilla, an associate professor in Hamline’s business school, said he wrote to McCarthy with concerns about Emmer’s appointment and that he knows of two other professors, outside the business school, who raised concerns with Hanson.

He said he doesn’t know whether faculty concerns about Emmer factored in the administration’s decision not to hire him.

For Bonilla, listed on the school’s website as a consultant on diversity in higher education and the founding director of “Race, Gender & Beyond” program, there is a business case and a social justice case to be made against Emmer.

In terms of business, he pointed to fallout from gay-rights groups after Target Corp. donated $150,000 to a political fund that in turn supported Emmer.

And hiring someone stridently opposed to gay rights goes against the school’s ethic of nondiscrimination and works against training the staff does on creating safe spaces for gay and lesbian students, Bonilla said.

“That would be money wasted,” he said. Not hiring Emmer allows Hamline to make a decision “congruent with our values and a sound business decision,” Bonilla said….

Despite the school’s statement that there was no agreement to hire him, Emmer said “there is no question” he was hired for the teaching job and that there was an agreement in principle on the “executive in residence” position….

For an e-mail that apparently supports Emmer’s view that he had indeed been hired (“I am the new Department Chair under which Business law falls. For the spring we are offering a session during the day and Tom Emmer is going to teach it.”), see this Minnesota Public Radio site. There’s also more from the Hamline Oracle, the university student newspaper, here and here. The latter item notes that, “Business Professor David Schultz … said that after staff began hearing about the possibility of Emmer joining the Hamline faculty, e-mails were drafted by some staff members to be sent to administration outlining their concerns over the hiring of Emmer.

“Schultz said that the faculty was concerned for two major reasons, including whether the political positions Emmer holds were incompatible with the university’s mission, specifically his stance on same-sex marriage.

“The second concern stemmed from the way Emmer was possibly being hired. Staff were being told that he was simply selected by McCarthy, which goes against the faculty handbook, Schultz said. The procedures for new hires includes a hiring committee and faculty review, which was not happening at the time faculty heard the rumors that Emmer was being hired.”

If the university did indeed refuse to hire Emmer because of his views on same-sex marriage, that would be a very serious breach of traditional and sound academic freedom norms, and a sign that the Hamline business school is seeking to be an ideological cocoon — for its faculty and its students — rather than a place where debate and academic freedom are genuinely present and valued. Of course it would send a pretty poor message to its students, who would rightly wonder whether a faculty that does this to an appointments candidate would likewise retaliate against students who express unorthodox opinions. And naturally it would have an effect far beyond the question of same-sex marriage: Students and prospective family members who see an institution being willing to exclude someone who shares the same views as about half the country would likely worry even more that it would exclude or retaliate against people who have (certain kinds of) less popular views.

Of course, this is a big “if”: We know what Prof. Bonilla believes about how the university should deal with dissenting viewpoints on the subject, and we have heard from Prof. Schultz about what “some staff members” thought, but we don’t know whether this was indeed part of the business school’s decision. I would like to know more about whether the business school takes the same approach to academic freedom and diversity of views that Prof. Bonilla does.

From today’s L.A. Times:

Campus police said they asked the Rev. Terry Jones not to come on campus after receiving information about suspicious activity associated with the visit that raised safety concerns. Several areas on campus, including Aldrich Hall where the university’s administration is housed, were closed.

Jones, who threatened to burn the Koran on the anniversary of of the September 11 terrorist attacks and eventually did so in March, had applied for a permit to speak at an area near the campus flagpoles but was denied permission because another organization had already applied for the same time slot….

School officials said that arresting Jones would have been an option had he come on campus.

It’s hard to be sure, based on the story, exactly what happened. If Jones had been denied a permit on the content-neutral grounds that the spot was already taken, the University would be able to insist that Jones not show up. (University campuses are generally treated as limited public fora from which the university may generally exclude outsiders; and if the university allows outsiders to speak, it may impose content-neutral rules limiting their speech. See, e.g., Bloedorn v. Grube (11th Cir. 2011).) And beyond this, if the police department had simply warned Jones about the danger, and asked him to stay away while making it clear that this was just advice that he could ignore, there wouldn’t be a First Amendment problem.

On the other hand, if the police generally demanded that Jones stay away, not just on this occasion when his permit was denied for space conflict reasons but also even in the future (when no such conflict would likely exist) that would be much more troubling. If anyone has further information, I’d love to hear it.

The proposed law would mandate that public and charter schools, city parks, city libraries, and the University of District Columbia ban

any gesture or written, verbal or physical act, including electronic communication, that is reasonably perceived as being motivated either by any actual or perceived characteristic, such as race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity and expression, or a mental, physical or sensory handicap, or by any other distinguishing characteristic that: …

has the effect of insulting or demeaning any student or group of students in such a way as to cause substantial disruption in, or substantial interference with, the orderly operation of a school, university, recreation facility, or library.

Say, then, that someone puts on an event at a park that “has the effect of insulting or demeaning” Muslims or Scientologists or fundamental Christians or gays or men or women, if some of the insulted or demeaned group consists of “students” (whether school or university students). And say that this “cause[s] substantial disruption in, or substantial interference with, the orderly operation of” the park — perhaps by leading to a counterdemonstration, or maybe just by insulting some other park visitors. Under the policies that the proposed law would mandate, such speech would have to be banned. Yet that would be a pretty clear violation of the First Amendment as it protects free speech in a traditional public forum such as a park, see, e.g., Forsyth County v. Nationalist Movement (1992). And even on non-traditional-public-forum property, such as in a library or an indoor recreational facility, viewpoint-based restrictions would be unconstitutional; a ban on speech that demeans groups based on various criteria would likely qualify as viewpoint-based and therefore unconstitutional.

Likewise, the proposed law would require the University of District Columbia to punish UDC students who “insult[] or demean[]” such groups, so long as it is found that the speech “cause[d] substantial disruption” — and not just by its volume or its location, but by the “insulting or demeaning” viewpoint that it expresses. Yet that likewise would be inconsistent, it seems to me, with the many lower court decisions that strike down campus speech codes, see, e.g., McCauley v. University of the Virgin Islands (3d Cir. 2010). An article in a student newspaper, for instance, might “cause substantial disruption” because it leads to student protests or broad student upset (or even to fights among some students); but, given those lower court cases, the author and publisher of the article would remain constitutionally protected against government-imposed student discipline.

In public schools, such restrictions might be upheld, under Tinker v. Des Moines Indep. Comm. School Dist. (1969); Tinker did hold that speech that substantially disrupts school operations is constitutionally unprotected. But that case is focused on the special context of speech in K-12 educational institutions. It doesn’t justify similar restrictions in parks or at universities. (Thanks to Hans Bader for the pointer.)

The Pittsburgh Tribune-Review reports:

An Indiana University of Pennsylvania graduate student has filed a complaint with the school’s human resources department, alleging one of her business professors subjected her to humiliation and insults based on her sexuality….

Santiago said the class, instructed by faculty member Dr. Maali Ashamalla, was discussing ethics and legalities. She said a male student said he thought gender reassignment surgery was unethical and should be illegal.

Ashamalla agreed, and called homosexuality “a sin” and “unnatural,” Santiago said.

“I asked her, ‘So are you saying that students like me who identify as homosexual are unnatural, abnormal and disgusting?’ She replied, ‘Yes,’” Santiago said….

University spokeswoman Michelle Fryling confirmed that the school’s human resources department had launched an investigation….

On Wednesday Santiago raised the subject to John Cavanaugh, chancellor of the Pennsylvania State System of Higher Education, during a campus forum at IUP. He did not directly address the issue.

Yesterday, Fryling forwarded a statement from Cavanaugh [which I assume is this statement -EV] denouncing harassment “of any kind — whether face to face or online.” …

UPDATE: An article in the university student newspaper adds more details:

Santiago said the professor went on to claim that Santiago was forcing her homosexuality on her and that she is forced to go to diversity training concerning Safe Zone. The professor went on to say that she cannot be forced to teach that homosexuality is okay and be forced to put up “homographic” images on her door, referring to the Safe Zone symbol of a rainbow and an upside down triangle.

The conversation lasted for several minutes, according to Santiago, but “it felt like forever.”

ANOTHER UPDATE: Some commenters objected to the title of the post, suggesting that it slights the fact (mentioned in the quote) that the professor told a student that the student herself was “unnatural, abnormal, and disgusting”; but given that the student herself asked the professor to chart out the logical implications of the professor’s position, the professor’s condemnation of the student is rightly seen as part of the professor’s general discussion of homosexuality.

This doesn’t dispose of the question whether First Amendment or academic freedom principles should protect the professor’s statement. But it does suggest, I think, that even if there’s a difference between a professor’s making a general point and a professor’s deliberately choosing to single out a particular student — and I think there might be, as a general matter — that difference is at most slight when the student herself asked how the professor’s thinking applies to her particular situation.

To give an analogy, consider three hypothetical situations: (1) A professor says, “Scientologists are either fools or thieves.” (2) A professor says out of the blue, with regard to a student he knows to be a Scientologist, “Mary Jones is a Scientologist, so she’s either a fool or a thief.” (3) A professor says, “Scientologists are either fools or thieves”; Mary Jones raises her hand and says, “I’m a Scientologist; do you think I’m a fool or a thief?”; the professor says, “yes, one or the other.” I think situation 3 should be seen as being considerably closer to situation 1 than to situation 2, though again that doesn’t tell us exactly how situation 1-or-3 or situation 2 should be handled either by First Amendment law or by academic freedom principles.

To what extent does the First Amendment protect public university professors — including untenured professors — from being disciplined or fired based on their scholarship or public commentary? The matter is not entirely clear, partly because of Garcetti v. Ceballos (2006), which held that the government has a largely free hand in making employment decisions based on an employee’s speech that’s part of his job duties. Does that extend to professors’ speech, given that their duties include scholarship and public commentary, especially when the speech relates to their scholarship? Or are the rules different, because of special protections offered to academic freedom, or the special nature of professors’ work? (My job is indeed to write articles, but, unlike with a typical public employee, such articles wouldn’t be seen as representing the views of my employer, and wouldn’t be directed by my employer.) Garcetti itself reserved judgment on the question, leaving the matter to lower courts, at least until the Supreme Court revisits the matter:

There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.

Last week’s Van Heerden v. Board of Sup’rs of Louisiana State University (M.D. La. Oct. 20, 2011) discusses this question:

The following facts are undisputed.

In 1992, LSU hired van Heerden to work at the Louisiana Geological Survey, and later at the College of Engineering, as an Associate Professor of Research. (Doc. 54, Ex. A). In 2000, van Heerden co-founded the LSU Hurricane Center and was serving as its Deputy Director when Hurricane Katrina battered the Gulf Coast in 2005. Following the storm, van Heerden was selected by the Louisiana Department of Transportation to head Team Louisiana, a group of scientists tasked with researching what caused the extensive flooding in New Orleans. After the storm hit, van Heerden began making public statements suggesting that the Corps failed to properly engineer and maintain New Orleans levees and was to blame for the city’s flooding.

Unfortunately for van Heerden, the LSU administration and many of its faculty did not approve of his statements for fear that they might cause the University to lose federal funding. On a number of occasions, LSU administrators ordered van Heerden not to make public statements or testify regarding the cause of New Orleans’ levee failures. However, van Heerden persisted in making public statements and testified in front of the Louisiana Legislature and the United States Congress. Thereafter, LSU administrators removed van Heerden from the Louisiana Recovery Association, a group of scientists and professionals assembled by then-Governor Kathleen Blanco to identify the State’s post-Katrina needs.

In May 2006, van Heerden published “The Storm,” in which he again hypothesized at length about the Corps’ role in the levee failures and exposed LSU’s attempt to silence his opinion. LSU responded by further urging van Heerden not to make public statements and stripping him of his limited teaching duties.

Ultimately, on April 13, 2009, van Heerden, who had worked for LSU under a series of one-year contracts, was informed that his contract would not be renewed….

Continue reading ‘District Court Opinion on the First Amendment and Public University Professors’ »

The AP reports:

A California jury found 10 Muslim students guilty Friday of disrupting the Israeli ambassador’s university speech about U.S.-Israel relations, a case that stoked a debate about free speech….

They were charged with misdemeanor counts after standing up, one by one, and shouting prepared statements such as “propagating murder is not an expression of free speech.” …

Prosecutors said the students broke the law by interrupting Oren’s speech on U.S.-Israel relations and cutting short the program, despite calls to behave from campus officials. Defense attorneys argued the students had a right to protest….

Prosecutor Dan Wagner … showed video footage of university officials pleading with students to behave, but they kept interrupting the lecture. Wagner also showed emails sent among members of UC Irvine’s Muslim Student Union planning the disruption and calculating who was willing to get arrested….

From press accounts about the incident about the trial, it strikes me that the verdict is sound, and not a First Amendment violation. Here’s what I wrote in February, when the charges were filed, about the California meeting disruption law involved in this case — a law that I think is a constitutionally permissible content-neutral speech restriction:

1. The relevant statute, Cal. Penal Code § 403, says: “Every person who, without authority of law, willfully disturbs or breaks up any assembly or meeting that is not unlawful in its character … is guilty of a misdemeanor.” In re Kay (1970) held that, to be convicted under the statute, the prosecution must show “that the defendant [1] substantially impaired the conduct of the meeting by intentionally committing acts [2] in violation of implicit customs or usages or of explicit rules for governance of the meeting, of which he knew, or as a reasonable man should have known,” and [3] “the defendant’s activity itself — and not the content of the activity’s expression — substantially impairs the effective conduct of a meeting.”

Continue reading ‘UC Irvine Students Convicted for Disrupting Speech’ »

An interesting example of this fortunately rare occurrence comes in Olguin v. Santa Barbara Community College Dist. (Cal. Ct. App. Aug. 15, 2011). The case has an interesting discussion of the state-law “common interest privilege,” which is quite important in cases involving alleged defamation within an organization or in job references; but here is an excerpt describing the court’s conclusion that the statements were likely to be nondefamatory opinion:

Plaintiff Arthur Olguin, a psychology professor, appeals a judgment in favor of defendants Santa Barbara Community College District (District) and Raymond Launier, a District psychology professor. Launier filed a grievance against Olguin and sent a memo to District colleagues. Launier claimed that Olguin violated academic freedom when Olguin instructed the college bookstore not to order materials Launier authored and planned to use in his classes. Olguin stated the memo contained false statements including the “republication” of a student’s complaint to the District about witnessing him commit a lewd act in his office….

[The court concludes that there was no error in the instructions that led to a jury verdict in favor of defendants, but goes on to say: -EV]

Moreover, “[a] judgment may not be reversed on appeal, even for error involving ‘misdirection of the jury,’ unless ‘after an examination of the entire cause, including the evidence,’ it appears the error caused a ‘miscarriage of justice.’” … [Here,] there was no miscarriage of justice. Launier’s testimony that he was motivated by concerns about academic freedom is supported by his memo, which is essentially a treatise on academic freedom. Olguin notes that Launier said he had a “forked tongue for spewing bile.” But any colleague reading it would understand that this was said in jest because Launier prefaced these remarks with the phrase “[t]ongue in cheek.”

Olguin views all of Launier’s negative statements about him to be actionable defamation. But Launier set forth the facts from which he drew conclusions. “‘[C]ourts have found statements to be nonactionable opinion when the facts supporting the opinion are disclosed.’” “Arguments for actionability disappear when the audience members know the facts underlying an assertion and can judge the truthfulness of the allegedly defamatory statement themselves.” Here Launier sent the memo to colleagues who knew he had a dispute with Olguin. This was a highly educated audience. After reading the facts of the dispute, they would view the negative conclusions to be largely “rhetorical hyperbole.”

Launier said Olguin’s justifications for censoring his materials were intellectually dishonest and amounted to “deceptive rationalizations.” Olguin notes that Launier also accused him of being “autocratic,” ignoring “academic freedom,” engaging in “would-be book burning,” an “abuse of power,” acting illegally, ignoring district policy, being “overly-controlling,” “restrictive,” “censuring,” “punitive,” “prejudicial,” “ill-justified,” “discriminatory,” “unethical,” having a “misinformation agenda,” being angry, critical, engaging in “small minded attacks,” etc.

These were obvious opinions; readers would understand these words to be “a form of exaggerated expression” based on the author’s “subjective judgment.” Launier used these words as rhetorical barbs in an academic argument against censorship and Olguin’s management of the psychology department.

Launier’s memo touched upon sensitive constitutional interests by urging his academic colleagues to support his opposition to a public college’s censorship of his treatises and to protect the academic freedom of professors to plan their course materials. “Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us…. That freedom is therefore a special concern of the First Amendment ….” (Keyishian v. Bd. of Regents (1967) 385 U.S. 589, 603.) Public colleges and universities are important forums for debate and the “robust exchange of ideas.” Consequently, they “are not enclaves immune from the sweep of the First Amendment.” (Healy v. James (1972) 408 U.S. 169, 180.) “[T]he First Amendment tolerates neither laws nor other means of coercion, persuasion or intimidation ‘that cast a pall of orthodoxy’ over the free exchange of ideas in the classroom.” Professors do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

Continue reading ‘College Department Chair Sues Professor for Libel, Loses’ »

A colleague pointed me to the report, which also quotes the don’t-publish-your-article letter from the dean. (For more on the matter, see this post from earlier today.) Here’s the substance of the report:

The charge of the Academic Senate Committee on Academic Freedom (CAF) is to “report to the Division any conditions within or without the University which, in the judgment of the committee, may affect the academic freedom of the members of the University.”

On March 11, 2011, CAF received a complaint from a professor contending that his/her academic freedom rights had been seriously abridged by the UCSD administration. With regret, we have concluded that the administration did indeed violate generally accepted norms of academic freedom.

The complaint arose out of a letter that the professor (“Professor A”) received on June 16, 2009 from the dean of an academic unit at UCSD. The dean told CAF that the letter was drafted with the assistance of lawyers in the Office of the Senior Vice Chancellor for Academic Affairs. The letter was cc’d to the Office of Research Affairs and the Office of the Senior Vice Chancellor for Academic Affairs. The dean’s letter arose out of a long-running academic disagreement between two faculty members (a dispute in which CAF does not take sides). The dean directed Professor A to cease pursuing a critical re-examination of the other professor’s research and data. The letter said (we here obfuscate identities):

“You are to stop harassing [Professor B]. This means: stop contacting B with questions regarding [name of B's publication], his/her research methods, or his/her previous research methods; stop contacting others about your re-analysis of his/her data; refrain from discussing … your re-analysis of B’s data at your presentations at any meetings, including scholarly meetings like the [name of professional association]; and do not publish texts that refer to … your re-analysis of B’s data.”

The letter also stated:

“If you continue to engage in these activities, you may be subject to formal discipline, which can include written censure, reduction in salary, demotion, suspension, or dismissal.”

Continue reading ‘The UCSD Committee on Academic Freedom Report’ »

So alleges the UCSD faculty assembly, “after hearing a detailed and strongly worded report from its Committee on Academic Freedom,” according to the San Diego Union-Tribune:

The issue involves Richard Biernacki, a professor of sociology, and Jeff Elman, dean of the Division of Social Sciences.

In June 2009, Biernacki submitted a manuscript titled “Inside the Rituals of Social Science” to Duke University Press. The manuscript examines what Biernacki calls “methodological problems in the field” and critiques the work of other sociologists, including one of Biernacki’s colleagues at UCSD.

The same month Elman wrote Biernacki a letter ordering him not to publish his work or discuss it at professional meetings. Doing so, Elman wrote, could result in “written censure, reduction in salary, demotion, suspension or dismissal.”

Elman did not respond to a request for comment. But his concern, according to his letter to Biernacki, was that Biernacki’s research and manuscript “may damage the reputation of a colleague and therefore may be considered harassment.” …

Moreover, according to a University statement quoted by Inside Higher Ed (which has more on the case), the University seems to be acknowledging the charges:

We deeply regret that statements made by an academic administrator have led to questions about the administration’s commitment to academic freedom rights…. The Academic Senate leadership and administration of the University of California, San Diego unequivocally affirms our commitment to the principles of Academic Freedom. We acknowledge the recent determination by the Committee on Academic Freedom (CAF) and agree with CAF that the administration has a fundamental responsibility to protect the rights of faculty to research and publish scholarly work, and we will jointly redouble our efforts to ensure that every member of our administration fully understands this responsibility.

Sounds very bad. The Committee on Academic Freedom report noted, “We cannot avoid the conclusion that the dean’s letter contains clear and unacceptable violations of core academic freedom rights, violations that were apparently implicitly or explicitly supported by others in the university’s administration at the time.” That sounds like the right conclusion.

If anyone has pointers to the underlying documents, such as the offending letter from the dean, the Committee on Academic Freedom report, or the UCSD statement, I’d love to see them.

UPDATE: I now have the full Committee on Academic Freedom report, which I quote in this follow-up post.

The Fourth Circuit just handed down its decision in this case, Adams v. UNCW. The court concluded that Prof. Adams didn’t introduce sufficient evidence to support his religious discrimination claim, and that the claim was therefore rightly dismissed before trial. But the court also concluded that Adams’ political discrimination claim could proceed.

Here’s a very quick summary of what happened: Adams is a tenured associate professor of criminology at the University of North Carolina-Wilmington. He sought promotion to full professor, based partly on his political writings (and not just his original academic research), but the promotion was denied. Adams sued, claiming that the denial stemmed from faculty members’ hostility to his religion and his political views.

The trial court held that Adams’ claim couldn’t go forward, because of the Supreme Court’s Garcetti v. Ceballos decision. That case generally held that government employers had a free hand in making employment decisions based on employees’ speech said as part of their jobs; any First Amendment protection that employees have against employer retaliation only applies to speech outside their job duties. (Adams’ speech, the court said, was within his job duties, partly because he asked that it be considered as part of his promotion evaluation, and thus himself argued that it was part of his academic mission.) But Garcetti expressly stated,

There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.

And the Fourth Circuit held that, when it comes to public university professor employment decisions, Garcetti doesn’t apply, and a professor speaking on matters of public concern can’t be discriminated against based in employment unless the speech is seen as unduly disruptive (under the Pickering test). And circuit courts have generally held that the Pickering test is quite speech-protective when it comes to university professor speech (at least outside the classroom), partly because universities are expected to be homes to controversial speakers, and are set up not to be especially disrupted by such controversy. (See, e.g., Levin v. Harleston (2d Cir. 1992).) The circuit court remanded to the district court for further decisionmaking on the subject, and presumably also on the question whether the promotion denial stemmed from legitimate concern about the quality of Prof. Adams’ scholarship, or from illegitimate hostility to Prof. Adams’ viewpoints. (Note that quality of scholarship evaluations might turn on matters such as the perceived quality of the candidate’s reasoning, the quality of the candidate’s responses to counterarguments, and whether the works are original contributions to knowledge as opposed to simply popularizations of existing academic knowledge.)

Continue reading ‘University Political Discrimination Case Brought by Prof. Michael Adams (a Noted Conservative Commentator)’ »

As FIRE puts it, “For the last couple of days, controversy has been buzzing about a YouTube video (now with more than 1.3 million views) from a college student at the University of California, Los Angeles (UCLA), who chose to take to the Internet to complain about the behavior of Asian students in the UCLA library and elsewhere. The student, who has been identified as Alexandra Wallace, claims that the ‘hordes’ of Asian students at UCLA (UCLA’s undergraduate population is about 37 percent Asian and Pacific Islander) cause various annoyances like loudly talking on their cell phones in the library and having their extended families come over and do their chores for them.”

FIRE goes on to criticize — in my view, quite rightly — some statements from UCLA administrators, including the seeming suggestion that the video could lead to disciplining the student, and the statement that “If she’s received a death threat, I find that as deplorable as her original YouTube video.” (Death threats are much more deplorable than making bigoted generalizations about your classmates.) The speech is clearly constitutionally protected, as well as being moronic.

I should note, just to anticipate one common response, that as with much idiocy not much would be lost to the First Amendment if this particular sort of statement, and only this sort of statement, somehow magically vanished. I watched the video, and it’s nonsense.

But the same rationale that would justify punishing a student for this video would equally justify punishing students who argue (on video, in newspaper articles, or what have you) many other things. If the theory is that the speech can be restricted because it somehow creates a “hostile educational environment” for a particular group, the same could be said of statements that — just to give a few examples — (1) immigration from some countries should be cut off because immigrants from those countries disproportionately have certain bad traits, (2) there are sex or race differences in intelligence or temperament, (3) homosexuality and those who engage in it are immoral, (4) fundamentalist Christianity / Catholicism / Scientology / atheism is an evil belief system, and that those who adhere it are either evil or stupid, (5) that American Jews are morally complicit in Israel’s supposed crimes, and a vast range of other speech.

The premise of the American university (and, I think, American self-government more broadly) is that people need to be free to express their views, whether the administrators and others see those views as morally right or morally wrong, so that social and political decisions can be reached based on actual discussion, and not mere force — and so that we can be confident that the things we believe are wrong are indeed wrong, rather than just that they have become unquestioned orthodoxy because challenging them can get you expelled. And to implement that premise, boneheaded statements have to be as protected as more well-reasoned statements.

UPDATE: Here’s FIRE’s letter to UCLA about the matter.

The L.A. Times reported late last week that

The Orange County district attorney’s office on Friday charged 11 defendants with conspiring to disrupt a meeting and a speech by the Israeli ambassador to the United States at UC Irvine last year….

In a statement, Orange County Dist. Atty.Tony Rackauckas said the case was filed because of an “organized attempted to squelch the speaker.” He also said the students “meant to stop this speech and stop anyone else from hearing his ideas, and they did so by disrupting a lawful meeting.” …

[During t]he Feb. 8, 2010, incident …, the Israeli ambassador … was shouted down repeatedly, and supporters cheered as students were escorted away by police.

The students are accused of meeting with other members of the Muslim Student Union to discuss options to respond to the speech as far out as six days before the event.

According to prosecutors, students circulated e-mails and held multiple meetings to plan the disruption of the speech. One of the students is accused of sending an e-mail to the MSU-UCI message board announcing that “we will be staging a University of Chicago Style disruption of the Ambassador’s speech.” …

Each [defendant] is charged with one misdemeanor count of conspiracy to disturb a meeting and one misdemeanor count of the disturbance of the meeting….

For video excerpts on the incident, see here.

I think the prosecution is both constitutionally sound and a good idea, but I want to use this post chiefly to pass along some information about California law on the subject.

1. The relevant statute, Cal. Penal Code § 403, says: “Every person who, without authority of law, willfully disturbs or breaks up any assembly or meeting that is not unlawful in its character … is guilty of a misdemeanor.” In re Kay (1970) held that, to be convicted under the statute, the prosecution must show “that the defendant [1] substantially impaired the conduct of the meeting by intentionally committing acts [2] in violation of implicit customs or usages or of explicit rules for governance of the meeting, of which he knew, or as a reasonable man should have known,” and [3] “the defendant’s activity itself — and not the content of the activity’s expression — substantially impairs the effective conduct of a meeting.” [UPDATE: I neglected to include item 3, which is important in some cases, though not terribly relevant here, since the disruption stemmed from the shouting and not from its content.]

Continue reading ‘Prosecution of Students Who Disrupted UC Irvine Speech by Israeli Ambassador’ »

Richmond Times-Dispatch columnist Barton Hinkle has a column surveying speech codes at Virginia public universities {HT: co-blogger Todd Zywicki]. It turns out that George Mason University may have the worst of a bad lot:

Free speech is one of those values to which everyone gives lip service. Nearly no one considers himself pro-censorship. Yet as FIRE has exhaustively documented, institutions of higher learning — which ought to welcome freewheeling intellectual debate — often are among the most censorious and oppressive places in America. And unfortunately, a few of the worst offenders are right here in Virginia….

Virginia Tech…. continues to flirt with totalitarian impulses. Witness the attempt earlier this year to shut down the student newspaper because of anonymous comments posted on its website….

Yet when it comes to Orwellian regulation of thoughtcrime, Tech remains a rank amateur next to George Mason University. GMU maintains a speech code that prohibits “any form of bigotry . . . . whether verbal, written, psychological, direct, or implied….”

GMU also insists that students get permission before chalking a message on a sidewalk. What’s more: “The sale, distribution, or solicitation of any . . . newspaper by GMU and non-GMU organizations and individuals is subject to prior authorization.” Taken together, such policies give GMU officials a blank slate to control what members of the university community can say and hear on campus.

This, mind you, at a school named after a man who is called “The Father of the Bill of Rights….”

UVa has taken the right step by relaxing its speech codes. It’s time for the rest of Virginia’s public colleges to do the same.

I would make two points about GMU’s speech code. First, like many such codes, it isn’t enforced very aggressively. In practice, both students and faculty often make public remarks that violate the code, yet escape punishment. Campus life would grind to a halt if the university seriously attempted to crack down on every instance of “implied” or “psychological” “bigotry.” Second, the code was instituted by the central administration, not the Law School. If it were up to the law school faculty, I have no doubt we would vote overwhelmingly to abolish the code. It is also unlikely that GMU’s extremely vague and broad speech restrictions would survive judicial scrutiny.

That said, Hinkle is absolutely right to point out the egregious flaws in the GMU code and to urge George Mason and other schools to repeal their codes without waiting for a legal challenge to arise. It shouldn’t take a lawsuit to force universities to uphold freedom of speech. And the case of UVA shows that repeal is not politically impossible, and won’t draw a massive political backlash.

The Foundation for Individual Rights in Education has the details. The university admits that it is excluding the group from generally available student group registration benefits, because the university disapproves of the group’s message:

Considerable research indicates the use of cannabis does not contribute to healthy decision-making, particularly in college-age populations. Given the above, the University determined that recognizing the “Students for Cannabis Policy Reform Group” as a DePaul student organization would not be congruent with our institutional goals regarding the health and well-being of our students.

I rather doubt that recognizing such a group would materially affect the level of marijuana use by DePaul students. But denying recognition would affect the amount of debate about marijuana policy that takes place. Sounds like unhealthy decision-making on the university’s part to me.

DePaul is a private university, so it’s free to engage in unhealthy decision-making. But excluding the expression of some views from the very broadly open student group recognition program, it seems to me, is the gateway drug to broader restrictions as well, restrictions that are even more dangerous to the culture of debate and discussion that universities, private and public, ought to be promoting. DePaul itself has officially stated, in its Guiding Principles on Speech and Expression that it is “committed to fostering a community that welcomes open discourse.” And while that document seems to suggest that DePaul’s Catholic mission may support some restrictions aimed at protecting “dignity,” “respect,” and “civility,” I don’t see anything in that statement that justifies discrimination against student speech that promotes legalization of marijuana. So I’m glad that FIRE is taking DePaul to task for its position.

Finally, DePaul’s letter suggests that denying recognition to the student group would still leave open “myriad opportunities for students to gather together and express their views to the larger community regarding the use of and/or legalization of cannabis.” But if indeed the group will be able to speak as effectively without the benefits of recognition, then I don’t see how the university’s action will further its stated goals. And if the university’s action will somehow diminish the amount of speech that might promote “[un]healthy decision-making,” then that must mean that the university hopes the group will not speak as effectively without the benefits of recognition.

UPDATE: I originally characterized DePaul’s actions, in the second sentence of the paragraph that starts with “DePaul is a private university,” as “banning the expression of some views.” This was intended as shorthand for the exclusion of the views from the benefit program; but, as commenter neurodoc pointed out, that is not accurate, as the last paragraph of this post makes clear. I’ve therefore corrected the post.

From Yates v. Fithian (W.D. Wash. Sept. 23, 2010):

Plaintiffs allege in this action that defendants excluded them from the Bellevue College (“College”) gymnasium while a Maria Cantwell Campaign event was taking place. Plaintiff students claim that they were refused entry because they wore t-shirts bearing the name of Cantwell’s opponent [McGavick], and that as a result, their First Amendment rights were violated….

[W]hen Bellevue College contracted to rent the gymnasium to the Cantwell Campaign, it acted in a commercial, proprietary capacity…. [But t]he forum in question is a college campus — a place where the free exchange and communication of ideas is fundamental. Moreover, the prohibited expression at issue was political speech, “which occupies the highest, most protected position.” Therefore, the balance of interests favors the plaintiffs.

Moreover, … once a university creates an open forum, it cannot then proceed to enforce exclusions to an otherwise open forum. Despite the fact that Bellevue College entered into a private rental agreement, an e-mail sent by the Director of Public Safety conveyed to the College’s students that the Cantwell Campaign would permit all students, faculty, and staff to attend the event. Moreover, several professors at the College either assigned or encouraged students in their classes to attend the Campaign event. Plaintiffs were concerned that their attendance would be construed as support. The e-mail stating that all students are welcome to attend the event, along with assignments by professors requiring students to participate in the event both diminish the significance of the fact that the event was the product of a private rental agreement. Through the action of College faculty and administrators, the Cantwell Campaign event was converted into an open forum from which plaintiffs could not be excluded due to their expression of support for an opposing candidate.

Finally, despite the existence of the rental contract with the Cantwell Campaign, the College maintained the ability to exercise control over the event. The contract terms reveal that the College expressly reserved the right to cancel any event in progress if the event staff or participants refuse to cooperate with College staff. After plaintiffs were denied entry to the event by a campaign employee, [College Vice President Laura E. Saunders] attempted to persuade the employee to allow the plaintiffs to enter the event. When the campaign manager continued to refuse, Saunders decided not to allow the students to attend the event. Under the terms of the contract, Fithian and Saunders could have insisted that the students be admitted and had the authority to cancel the event in light of the Campaign manager’s continued refusal to permit plaintiffs to participate in the event. For the foregoing reasons, the exclusion of plaintiffs from the event constituted a violation of their First Amendment rights.

Generally speaking, government entities may lease out rooms, buildings, and even parks and streets to private entities for the entities’ exclusive use. If it does so, then those entities are free to exclude attendees (even based on the viewpoint of the speech expressed on the attendees’ T-shirts, bumper stickers, and so on). This is clearest when the group wants to control who is part of the officially recognized speakers, as when a parade organizer excludes floats from a parade that is going down a public street that is temporarily reserved for the parade. But it’s also true when the group wants to exclude audience members. When the group has rented the space for its exclusive use, the government has essentially temporarily privatized the forum.

But it seems like here the university rented the space out only for a nonexclusive event, to which students, faculty, and staff were invited. Once it has done so, the court concludes, the government cannot then enforce any viewpoint-based restrictions imposed by the renters.

Here is an edited version of the opinion in the First Amendment / cyberspace law case that I briefed and argued, and that the Nebraska Supreme Court just decided today. It shouldn’t be terribly surprising or novel to those who know First Amendment law (though the Nebraska Court of Appeals decision that the Nebraska Supreme Court reversed was surprising). Still, I thought I’d pass it along in case some of our readers were interested.

The State convicted … Darren J. Drahota … of a breach of the peace based on two e-mails he sent to William Avery, his former political science professor and a candidate for the State Legislature. The e-mails — laced with provocative and insulting rhetoric and with the Iraq war as a background — suggested that Avery was a traitor and that he sympathized with Al Qaeda, a terrorist organization. [These e-mails followed an earlier exchange, in which Avery eventually asked Drahota to stop e-mailing him. -EV]

We are asked to decide whether Drahota’s e-mails were protected speech under the First Amendment. The Court of Appeals determined that the First Amendment did not protect Drahota’s speech because the e-mails were “fighting words,” an exception to free speech protection. We disagree….

Continue reading ‘Nebraska Supreme Court Decision on Offensive E-Mails’ »

This is the case that I briefed and argued last year (see here for my initial post about the petition for review to the Nebraska Supreme Court, and here for the various documents in the case, including the Nebraska Court of Appeals decision that had upheld the convictions). I’ll post more on the subject today, but for now I just wanted to note this and pass along the Nebraska Supreme Court opinion. Sometimes it’s a lot of fun to be a lawyer!

The Brisbane Times reports that:

A Queensland University of Technology lawyer[,] … Alex Stewart[,] has taken leave from his non-academic position as a QUT [Queensland University of Technology] commercial contracts lawyer after controversy erupted over a YouTube clip in which he smokes self-made cigarettes rolled in pages from the [Koran and the Bible] before rating which “burns better”….

The Daily Telegraph (UK) reports,

[Stewart] on leave following a meeting on Monday and is facing an inquiry.

“The university is obviously extremely, extremely unhappy and disappointed that this sort of incident should occur,” vice-chancellor Peter Coaldrake said.

Stewart’s point was apparently to argue (among other things) that people shouldn’t venerate books to the point of getting upset about others’ supposed mistreatment of the books. “Is this profanity? Is it blasphemy? Does it really matter? I guess that’s the point with all this, this crip — it’s just a [bleeped out] book. Who cares? Who cares?” I quote here a video accompanying the Brisbane Times article, which includes a short excerpt from Stewart’s YouTube clip. But I do not know where one can find the full clip; if you can point me to it, or send me a file containing it, I’d be much obliged.

Note that the Brisbane Times video also quotes a police spokesman who is saying that Stewart’s actions were likely not a criminal offense. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

UPDATE: Just to repeat what the title says, Stewart is a lawyer working for the university, not a professor.

Stanford law professor (and former judge) Michael McConnell, who represented the Christian Legal Society before the Supreme Court in Christian Legal Society v. Martinez, e-mails this:

I had a mischievous thought, which I thought I would offer to your blog:

I have a suggestion for the City of New York City, if it wishes to resolve the Ground Zero Mosque controversy in accordance with our constitutional traditions. It could require that the leadership of any nonprofit organization using city streets or water within the 9-11 zone be open to “all comers, without discrimination based on status or belief.” We have it on good authority that this is a neutral policy, violating no one’s First Amendment rights. Christian Legal Society v. Martinez. Lower Manhattan would be as free as a public university campus. The City could congratulate itself for promoting “tolerance” and “diversity” — without having to put up with those pesky Muslims. Who could possibly object?

UPDATE: Note that the “suggestion” (which is of course a criticism of the Court’s decision in Christian Legal Society, not of the proposed mosque) relates to requiring that the leadership of the organization be open to all comers. The mosque would thus be excluded even if it welcomed everyone to attend, so long as it limited its leadership to coreligionists (as any religious group surely must). The policy in Christian Legal Society in fact required such open access to student group leadership, not just to attendance at student group functions.