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.

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.

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.

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.

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.

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

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.

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.

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.)

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.

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….

[T]he Court finds that, although it is a close question, van Heerden was not acting within his official job duties…. Viewing the facts in the light most favorable to van Heerden, the Court cannot say he was acting under his official job duties because genuine issues of material fact still exist. The actions of LSU administrators when dealing with van Heerden make clear that, whatever the formalities of his job description or the general parameters LSU sets for all its academics’ relations with the media, LSU considered van Heerden to be acting outside his employment when he spoke on Katrina-related matters with the media. LSU administrators repeatedly warned van Heerden not to speak with the media. [Details omitted. –EV] …

Viewed in this light, LSU’s objective actions appear to have been calculated to disavow itself of van Heerden’s statements regarding the cause of levee failure. The Court thus finds that van Heerden’s job duties did not require him to make statements to the media, as it appears clear LSU attempted to limit his appearances, discredit his message, and distance itself from his conclusions. Of course, [a Fifth Circuit precedent’s] interpretation of Garcetti makes clear that, although van Heerden’s comments to the media were not required by his official job duties, they may nonetheless be unprotected if his speech was made in the course of performing his job duties.

Van Heerden’s job description and specified duties consisted of, initially, working on the Team Louisiana report pursuant to LSU’s contract with the State in addition to his faculty responsibilities. As van Heerden’s job description changed and became more focused on research for scholarly publication, his outside speech became less connected with his LSU employment, and LSU correspondingly became less pleased with his performance….

Finally, the Court pauses a moment to make a final comment about Garcetti. The concerns about academic freedom raised, but not answered, in that decision are quite relevant here. “Academic freedom is not an easy concept to grasp, and its breadth is far from clear. It has generally been understood to protect and foster the independent and uninhibited exchange of ideas among teachers and students and the serious pursuit of scholarship among members of the academy.” While van Heerden has not argued for an academic’s exception to Garcetti, neither have defendants pointed the Court to a decision of the Fifth Circuit applying Garcetti to an academic. The Court here shares Justice Souter’s concern that wholesale application of the Garcetti analysis to the type of facts presented here could lead to a whittling-away of academics’ ability to delve into issues or express opinions that are unpopular, uncomfortable or unorthodox. Allowing an institution devoted to teaching and research to discipline the whole of the academy for their failure to adhere to the tenets established by university administrators will in time do much more harm than good….

However, based on the facts presented here, the Court finds that, even applying the Garcetti test to van Heerden, he was not acting within his official job duties for the speech at issue here, which precludes summary judgment for defendants….

The plaintiff’s interest in his speech could also arguably outweigh the defendant’s interest in efficiently providing services. [This is the “Pickering balance” part of the First Amendment test for restrictions imposed by the government as employer, see this post. Academics are, by the very nature of their employment, urged to make what is sometimes unpopular speech. Universities must be cognizant and tolerant of such speech in order to foster the requisite level of comfort so research can be undertaken free of detrimental political pressure. The only conceivable “efficiency” interest LSU or the other defendants may have had in suppressing van Heerden’s speech, so far as the evidence at this point suggests, was to curry favor with the Corps and other federal bodies in the hopes of receiving federal funding in the wake of Katrina. Defendants do not even attempt to argue van Heerden did not meet this prong of the test. A genuine issue of fact certainly exists under the third element regarding whether plaintiff’s interest in his speech outweighs whatever LSU’s efficiency interest may be.

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.”

2. In re Kay concluded that, in that case, the defendants’ rhythmic clapping and heckling was not punishable:

After Congressman Tunney had given a portion of his speech, a comparatively small part of the total crowd, between 25 and 250 persons, engaged in rhythmical clapping and some shouting for about five or ten minutes. This demonstration did not affect the program. Congressman Tunney, who had been using a microphone, finished his speech despite the protest, pausing to assure those protesting that they had a right to do so and to urge them to be grateful that they live in a country whose Constitution protects their right to demonstrate in that manner. At no time did either the speaker or the police ask the protestors to be silent or to leave. Following the end of the protest and of the congressman’s speech, the fireworks were shown. The police made no arrests during or immediately following the protest; the prosecution filed charges only some two weeks later….

In applying [section 403 as we have interpreted it], the nature of a meeting necessarily plays a major role. The customs and usages at political conventions may countenance prolonged, raucous, boisterous demonstrations as an accepted element of the meeting process; similar behavior would violate the customs and usages of a church service. Audience participation may be enthusiastically welcomed at a bonfire football rally or an athletic contest, but considered taboo at a solemn ceremony of a fraternal order. Explicit rules governing the time and place of permitted nonviolent expressions may in some circumstances fix the limits of permissible conduct. Violation of such customs or rules by one who knew or as a reasonable man should have known of them would justify the application of section 403. Thus, rather than enacting monolithic standards, section 403 draws its content from the implicit customs and usages or explicit rules germane to a given meeting.

In the instant case the application of section 403 must in the first instance be examined in the light of the nature of the meeting involved here: a large, public celebration held outdoors in a public park, featuring, in the course of a political campaign, a public official as the principal speaker. Informality characterized this public rally: people could come and go as they pleased; members of the audience could move at will to other areas of the “meeting.” By custom and usage nonviolent demonstrations of political views are reasonably to be expected at such a gathering. As the evidence at trial disclosed, our history reveals that heckling and disputatious remarks at such affairs are commonplace occurrences. Indeed, the principal speaker at the rally, an elected public official, stated that the relevant custom sanctioned the demonstrative conduct of petitioners as a legitimate means of expression. The prosecution offered no evidence that clapping, flag waving, and sloganeering are not generally accepted and permitted at a public meeting, addressed by controversial elected officials, such as the instant one. Since the nature of that meeting contemplated acceptance of the nonviolent expression of alternative viewpoints, the petitioners’ protest did not impair the conduct of the meeting but instead constituted a legitimate element of it.

Moreover, the prosecution failed to show that the activities substantially impaired the conduct of the meeting. Not every violation of a general custom or of an explicit meeting rule becomes so grave as to warrant application of criminal sanctions; nor does section 403 contemplate such extensive coverage….

Whether a given instance of misconduct substantially impairs the effective conduct of a meeting depends upon the actual impact of that misconduct on the course of the meeting; the question cannot be resolved merely by asking persons present at the meeting whether they were “disturbed.” In the instant case, the questioned conduct continued for only a few minutes, Congressman Tunney was able to complete his speech, and it does not appear that a large part of the audience could not hear his remarks. We conclude that the state failed to meet its burden of establishing a substantial impairment of the conduct of the meeting.

Finally, we do not believe that there was a sufficient showing that the defendants disturbed the meeting within the constitutionally permissible limits of the statutory term “disturb.” Generally, if disturbances are occasioned by nonviolent exercise of free expression, section 403 will require that defendants be shown to have engaged in such conduct with knowledge, or under circumstances in which they should have known, that they were violating an applicable custom, usage, or rule of the meeting. [Footnote, slightly moved: Meeting rules are rarely carefully spelled out or well known to the audience. In many cases these rules consist of aged and infrequently used by-laws or tacit understandings and habitual practices, or are otherwise cloaked in obscurity and uncertainty. Even if clear rules can be found, the officials of a meeting commonly suspend or simply ignore such rules to expedite the work of the meeting. Silence of meeting officials in the face of unusual or raucous activity necessarily suggests that the rules of the meeting permit the activity or that the officials do not intend to enforce prohibitory rules to the contrary....] In instances in which the appropriate standard of conduct lies in doubt, a warning and a request that defendants curtail their conduct, either by officials or law enforcement agents, should precede arrest or citation.

3. I’m inclined to think that the situation here is quite different from that in In re Kay. First, the customs of presentation at universities seem to me to be much less tolerant of heckling; there is plenty of time for audience participation during Q & A, but shouting during the speech is not at all customary. (Perhaps the California Supreme Court got it wrong in interpreting the statute in a way that requires a determination of the particular customs of a certain kind of event; but that seems to be required under the Kay decision.)

Second, and relatedly, the university administrators repeatedly stressed to students that such interruptions were improper. To the extent that Kay focused on what was said by the authorities during the meeting as evidence of custom (“Indeed, the principal speaker at the rally, an elected public official, stated that the relevant custom sanctioned the demonstrative conduct of petitioners as a legitimate means of expression”), this cuts the other way here.

Third, while it’s hard to tell exactly how disruptive the hecklers were in Kay, it appears from accounts of the Irvine meeting and the court’s account in Kay that the Irvine hecklers were much more disruptive, and did indeed “substantially impair[] the conduct of the meeting.”

For a more recent, but factually rather different, § 403 case, see McMahon v. Albany Unified School Dist. (2002).

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.”

Consequently, in the collision of opposing opinions in heated academic debates on important issues, “‘there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.’” We have “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks ….”

But the chilling effect of litigation on the discussion of these issues is obvious. Consequently, protecting even harshly critical opinions of those at the center of an important controversy “‘provides assurance that public debate will not suffer for lack of ‘imaginative expression.’” (Standing Committee v. Yagman (9th Cir. 1995) 55 F.3d 1430, 1440-1441 [protected opinions included such caustic bombast as referring to the targeted individuals as being "intellectually dishonest," "ignorant," a "buffoon," a "sub-standard human," a "bully," a "midget among giants," "whores," etc.].)

Moreover, the defense claimed the memo did not change how Olguin’s colleagues viewed him because they already had “a fairly poor opinion” of him. That is supported by overwhelming evidence from the testimony of Bostwick, Bursten, Carroll, Endrijonas, Romo, and Friedlander. Those witnesses impeached Olguin’s testimony that he treated his colleagues with respect. Olguin also admitted that his reputation within the department “was harmed” when he was removed as department chair in 1996, and that Launier was not responsible for that demotion. He conceded that, as early as 1996, his colleagues were criticizing him regarding his “interpersonal relationships with them.” Olguin testified that he and other faculty removed Launier as department chair in 1999 partly because of [Launier’s] license revocation. But Olguin was impeached when he later admitted that he did not even discover the revocation until 2000. Bostwick’s testimony supported Launier’s position regarding the alleged lewd behavior incident. The special verdict shows that Olguin was unable to prove causation and damages, and that jurors rejected a substantial portion of his testimony.

Seems quite right to me. UPDATE: Forgot to add: Unfortunately, it took a trial and an appeal, and who knows how much in legal fees, to get the case disposed of.

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.”

On July 30, 2009, the dean e-mailed Professor A, primarily on a different aspect of the case, saying, “You must make your own choices regarding your manuscript [and] its content.” On November 17, 2009, the dean sent a letter to Professor A saying,

“I write to inform you that I cannot rescind the directives given to you in my June 16, 2009 letter. As dean, I am very concerned with protecting academic freedom.”

A longstanding and well-respected faculty member, who was acting chair of Professor A’s department when the initial (June 16th) letter was written, communicates the following:

“I was absolutely astonished when I read the dean’s letter to [Professor A]. I saw it as a very explicit set of threats designed to preclude [Professor A]’s publishing anything further on the subject … , or even speaking to this issue were it to be raised in talks [Professor A] gave on or off campus. Accordingly, at my next meeting with [the dean], I brought up the subject and asked whether my interpretation of his correspondence with [Professor A] was correct. I was told that it was.”

In attempting to understand the dean’s position, and in some cases at his urging, CAF listened to parties connected to the case and read publications, manuscripts, and regulations relating to it. CAF also, while concealing the identities of those involved, consulted with the systemwide University Committee on Academic Freedom and with a legal academic who is a nationally recognized authority on academic freedom. 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 administration at the time.

The dean told CAF that his letter and subsequent actions were a well-intentioned effort to protect reputations and collegial relations, since the letter stemmed from a dispute between two faculty members. However, the UCSD faculty should understand that the dean’s letter did not prohibit just slander, libel, or personal disputes; the dean’s letter prohibited utterance, research, and publication within the academic field of study. Moreover, no faculty body had (or subsequently has) found that either professor had talked or published unprofessionally. To the contrary: a duly-appointed faculty committee involved in the dispute called precisely for continuing discussion through the normal channels of academic debate (publication and oral presentation).

Faculty members’ rights to study, re-analyze, and publish controversial scholarly materials cannot be abridged. These rights to academic freedom cannot be administratively revoked to prevent possible future breaching of professional norms. In our view, the campus administration’s fundamental responsibility is precisely to protect the right of faculty members to research and publish scholarly work even when others, on or off campus, find the work or its conclusions controversial or objectionable.

We call upon the campus administration to promptly and publicly accept responsibility for serious errors of judgment in this case. We further call upon the administration to take concrete steps to prevent future violations of academic freedom rights, such as training for all administrators and their staff on these rights, which lie at the very heart of the University.

Shocking and appalling.

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.

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.)

Now I’m not sure what the right First Amendment answer when it comes to university decisions that are based on evaluations of a candidate’s scholarly work (as opposed to evaluations of work that he says is outside his scholarly tasks, and which he doesn’t submit as part of his portfolio). On the one hand, I agree that the protection of the marketplace of ideas against government control, and the desire to avoid deterring dissenting views, counsel in favor of some constitutional constraints on such evaluations. But on the other hand, I’m not sure how this can work. Such evaluations are inevitably based on the content of what the candidate says (usually a forbidden basis for government action against people, but in this situation a necessary basis). And the evaluations are also inevitably based even on the viewpoints that the candidate expresses: For instance, a physicist who proposes a new theory that is inconsistent with what the overwhelming majority of physicists believe will naturally be required to provide much more comprehensive evidence than with someone whose theory fits within the mainstream.

Honest scholarly evaluation requires the evaluators to be open to a wide range of views, and to ignore as much as they can their own partisan predilections. But I don’t think such a process can work without some consideration of the viewpoint that the scholarship expresses. Nor can one respond, I think, that good scholars should always equally scrutinize all viewpoints, whether conventionally accepted or not. Life is too short for that; one naturally has to pick and choose what to scrutinize especially closely, and the viewpoints that are at odds with broadly accepted conclusions within the discipline will naturally be viewed with special skepticism.

The court briefly touched on this issue:

Adams’ inclusion of the speech at issue as part of his application process asked the Defendants to consider it not according to the content qua speech, but as factoring into the sweeping requirements of scholarship and service necessary to support his promotion to full professor. The Defendants were not precluded from examining the materials for a permissible purpose using lawful criteria. At the same time, their review of those materials can be examined for an impermissible discriminatory use.

But it’s not clear how a judge and jury could effectively separate faculty members’ conclusions that a candidate’s work was badly reasoned or inconsistent with accepted academic knowledge (in a way that casts doubt on the candidate’s work and not on the knowledge) from faculty members’ “impermissibly discriminatory” judgments based on hostility to the ideas that the candidate expresses. I stress again that honest scholars should try to separate the two as much as possible. But it’s hard even for honest scholars to do in their own minds; it’s not clear to me how judges and juries could do that, reviewing the process after the fact.

So I’m not sure what to think about this decision, and I look forward to hearing what others have to say about it (and also to seeing how things come out in further district court proceedings, assuming there is a written opinion stemming from the proceedings, rather than just a prompt settlement or an inscrutable jury verdict). Incidentally, I also think that the strongest argument for Garcetti more broadly is that employers have to be able to evaluate the quality of their employees’ speech that is made as part of the job, both with an eye towards whether the employee has been doing his job well and with an eye towards whether the employee is likely to do the job well in the future.

Finally, note that the case doesn’t involve the separate question of public university employers’ control over a professor’s classroom teaching. I think there the university should have very broad control as a matter of First Amendment law; but, again, that’s a somewhat different matter.

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 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.]

2. In re Kay concluded that, in that case, the defendants’ rhythmic clapping and heckling was not punishable:

After Congressman Tunney had given a portion of his speech, a comparatively small part of the total crowd, between 25 and 250 persons, engaged in rhythmical clapping and some shouting for about five or ten minutes. This demonstration did not affect the program. Congressman Tunney, who had been using a microphone, finished his speech despite the protest, pausing to assure those protesting that they had a right to do so and to urge them to be grateful that they live in a country whose Constitution protects their right to demonstrate in that manner. At no time did either the speaker or the police ask the protestors to be silent or to leave. Following the end of the protest and of the congressman’s speech, the fireworks were shown. The police made no arrests during or immediately following the protest; the prosecution filed charges only some two weeks later….

In applying [section 403 as we have interpreted it], the nature of a meeting necessarily plays a major role. The customs and usages at political conventions may countenance prolonged, raucous, boisterous demonstrations as an accepted element of the meeting process; similar behavior would violate the customs and usages of a church service. Audience participation may be enthusiastically welcomed at a bonfire football rally or an athletic contest, but considered taboo at a solemn ceremony of a fraternal order. Explicit rules governing the time and place of permitted nonviolent expressions may in some circumstances fix the limits of permissible conduct. Violation of such customs or rules by one who knew or as a reasonable man should have known of them would justify the application of section 403. Thus, rather than enacting monolithic standards, section 403 draws its content from the implicit customs and usages or explicit rules germane to a given meeting.

In the instant case the application of section 403 must in the first instance be examined in the light of the nature of the meeting involved here: a large, public celebration held outdoors in a public park, featuring, in the course of a political campaign, a public official as the principal speaker. Informality characterized this public rally: people could come and go as they pleased; members of the audience could move at will to other areas of the “meeting.” By custom and usage nonviolent demonstrations of political views are reasonably to be expected at such a gathering. As the evidence at trial disclosed, our history reveals that heckling and disputatious remarks at such affairs are commonplace occurrences. Indeed, the principal speaker at the rally, an elected public official, stated that the relevant custom sanctioned the demonstrative conduct of petitioners as a legitimate means of expression. The prosecution offered no evidence that clapping, flag waving, and sloganeering are not generally accepted and permitted at a public meeting, addressed by controversial elected officials, such as the instant one. Since the nature of that meeting contemplated acceptance of the nonviolent expression of alternative viewpoints, the petitioners’ protest did not impair the conduct of the meeting but instead constituted a legitimate element of it.

Moreover, the prosecution failed to show that the activities substantially impaired the conduct of the meeting. Not every violation of a general custom or of an explicit meeting rule becomes so grave as to warrant application of criminal sanctions; nor does section 403 contemplate such extensive coverage….

Whether a given instance of misconduct substantially impairs the effective conduct of a meeting depends upon the actual impact of that misconduct on the course of the meeting; the question cannot be resolved merely by asking persons present at the meeting whether they were “disturbed.” In the instant case, the questioned conduct continued for only a few minutes, Congressman Tunney was able to complete his speech, and it does not appear that a large part of the audience could not hear his remarks. We conclude that the state failed to meet its burden of establishing a substantial impairment of the conduct of the meeting.

Finally, we do not believe that there was a sufficient showing that the defendants disturbed the meeting within the constitutionally permissible limits of the statutory term “disturb.” Generally, if disturbances are occasioned by nonviolent exercise of free expression, section 403 will require that defendants be shown to have engaged in such conduct with knowledge, or under circumstances in which they should have known, that they were violating an applicable custom, usage, or rule of the meeting. [Footnote, slightly moved: Meeting rules are rarely carefully spelled out or well known to the audience. In many cases these rules consist of aged and infrequently used by-laws or tacit understandings and habitual practices, or are otherwise cloaked in obscurity and uncertainty. Even if clear rules can be found, the officials of a meeting commonly suspend or simply ignore such rules to expedite the work of the meeting. Silence of meeting officials in the face of unusual or raucous activity necessarily suggests that the rules of the meeting permit the activity or that the officials do not intend to enforce prohibitory rules to the contrary....] In instances in which the appropriate standard of conduct lies in doubt, a warning and a request that defendants curtail their conduct, either by officials or law enforcement agents, should precede arrest or citation.

3. I’m inclined to think that the situation here is quite different from that in In re Kay. First, the customs of presentation at universities seem to me to be much less tolerant of heckling; there is plenty of time for audience participation during Q & A, but shouting during the speech is not at all customary. (Perhaps the California Supreme Court got it wrong in interpreting the statute in a way that requires a determination of the particular customs of a certain kind of event; but that seems to be required under the Kay decision.)

Second, and relatedly, the university administrators repeatedly stressed to students that such interruptions were improper. To the extent that Kay focused on what was said by the authorities during the meeting as evidence of custom (“Indeed, the principal speaker at the rally, an elected public official, stated that the relevant custom sanctioned the demonstrative conduct of petitioners as a legitimate means of expression”), this cuts the other way here.

Third, while it’s hard to tell exactly how disruptive the hecklers were in Kay, it appears from accounts of the Irvine meeting and the court’s account in Kay that the Irvine hecklers were much more disruptive, and did indeed “substantially impair[] the conduct of the meeting.”

For a more recent, but factually rather different, § 403 case, see McMahon v. Albany Unified School Dist. (2002).

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.

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.

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.

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….

In concluding that Drahota’s speech constituted fighting words, the Court of Appeals relied on our decision in State v. Broadstone…. In Broadstone, we … quoted the U.S. Supreme Court’s decision in Chaplinsky v. New Hampshire to explain that fighting words are unprotected speech:

“‘[F]ighting’ words [are] those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. ‘Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.’ …”

Within this quote from Chaplinsky, there are two descriptions of fighting words. The first refers to words whose “‘very utterance inflict[s] injury.’” The other refers to words which “‘tend to incite an immediate breach of the peace.’” …

[Discussion of various precedents omitted. -EV] [I]n Gooding v. Wilson, the Court held that a breach of the peace statute was overbroad because it was not limited to fighting words. The Court reasoned that because the statute could be applied “to utterances where there was no likelihood that the person addressed would make an immediate violent response, it is clear that [the statute is not limited] to ‘fighting’ words defined by Chaplinsky.” In effect, the Gooding Court read the “inflict injury” prong out of the definition. Lower courts have followed the Supreme Court’s lead. “It is now clear that words must do more than offend, cause indignation or anger the addressee to lose the protection of the First Amendment.”

We agree. We hold that the State cannot constitutionally criminalize speech under [the breach of the peace statute] solely because it inflicts emotional injury, annoys, offends, or angers another person. Accordingly, we cannot affirm Drahota’s conviction merely because Avery found it offensive.

The U.S. Supreme Court in Chaplinsky held that a state could regulate speech that tends to incite an immediate breach of the peace. Although the Supreme Court has not upheld such a conviction since Chaplinsky, other courts, including this court, have done so. In upholding such convictions, we have stressed that the right to use abusive epithets of “‘slight social value’” is outweighed by the State’s strong “‘interest in order.’”

Indeed, “[i]t is the tendency or likelihood of the words to provoke violent reaction that is the touchstone of the Chaplinsky test ….” … The context of Drahota’s speech was an ongoing political debate, not random obscenities directed at small children [referring to an earlier Nebraska case that did find the speech to be punishable fighting words -EV], which could likely provoke a response from nearby adults. Here, Drahota and Avery had corresponded for months on political issues. And both had made provocative statements during that dialog without incident. The First Amendment encourages robust political debate, particularly the right to criticize public officials and measures ….

By the time Drahota sent the e-mails at issue, Avery was running for office. And we have stated that “[t]he steadfast rule is that ‘“in public debate our own citizens must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment.”’” So even when criticisms of public figures are outrageous, if they fall short of provoking an immediate breach of the peace, they are protected by the First Amendment. To hold otherwise would obstruct the free exchange of ideas.

Yet, we do not hold that political speech can never constitute fighting words. It is not difficult to imagine insults virulent enough to provoke a breach of the peace in a political debate. But here, even if a fact finder could conclude that in a face-to-face confrontation, Drahota’s speech would have provoked an immediate retaliation, Avery could not have immediately retaliated. Avery did not know who sent the e-mails, let alone where to find the author. We conclude that the State has failed to show that Drahota’s political speech constituted fighting words.

Rowan [a U.S. Supreme Court case -EV] involved a federal statute that allowed a homeowner to request that a vendor remove his name from the mailing list and stop all future mailings if the homeowner found the mailings erotically arousing or sexually provocative. After weighing a person’s “right … ‘to be let alone’ [against] the right of others to communicate,” the Court ruled that a vendor has no right to send unwanted material to the home of another. Crucial to the Court’s holding was the absoluteness and finality of the homeowner’s decision; the government had no role in determining whether the materials were objectionable.

We find Rowan distinguishable. First, we note the absence of a statute like the one in Rowan. The statute in Rowan gave the homeowner absolute and final discretion over what was objectionable. Under the statute, the government merely enforced the homeowner’s preference and had no part in deciding what was objectionable. In the present case, the discretion is left to the prosecutor whether to charge Drahota with breach of the peace. This element of government action undermines the State’s Rowan-based argument.

Because the State is an actor here, our concern is not focused on balancing Avery’s right to be let alone against Drahota’s right to communicate. But even if it were, the scales would tip in Drahota’s favor. First, Rowan dealt with commercial speech aimed at private citizens. In contrast, this case deals with political speech directed at a candidate for public office. Second, the discussion of political issues is not the equivalent of mass advertisements in balancing free speech against privacy. “‘The First Amendment affords the broadest protection to such political expression in order “to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” …’” The ability of a constituent to voice his concerns and opinions to his elected representatives, and to those who wish to become his representatives, is the cornerstone of republican government. We reject the State’s contention that Drahota’s mere sending of an e-mail constituted a breach of the peace because Avery had previously asked Drahota not to communicate again.

But that does not mean a person’s right to speak will always trump another’s right to be let alone. While Avery, as a political candidate, had diminished privacy rights trumped by a potential constituent’s First Amendment rights, we recognize that balancing free speech rights against the privacy rights of a private citizen may yield a different result.

Obviously, Drahota is not a wordsmith, and his bumper sticker rhetoric was certainly provocative. But it did not rise to the level of fighting words under these facts. If the First Amendment protects anything, it protects political speech and the right to disagree.

Here, Drahota and Avery had an ongoing, bareknuckle political dialog that germinated in a political science course at the University of Nebraska. Avery, to his credit, permitted the university forum to be a marketplace for the free flow of ideas. But Drahota stopped their dialog upon Avery’s request and did not e-mail Avery again until Avery was running for political office.

In closing, the hallmark of free speech protection is to allow the “‘free trade in ideas’ — even ideas that the overwhelming majority of people might find distasteful or discomforting.” To criminalize Drahota’s speech would impede the free flow of those ideas and political discussion between the people and their representatives. This we refuse to do.

We conclude that the State cannot criminalize speech under the fighting words exception solely because it inflicts emotional injury, annoys, offends, or angers another person. And we reject the State’s argument that the First Amendment does not protect Drahota’s speech because it constituted an invasion of Avery’s privacy. The State does not contend that any other exception applies. Because no exception applies, the First Amendment protects Drahota’s speech. We reverse his conviction and remand the cause to the Court of Appeals with directions to the district court for further remand to the county court for dismissal.

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.

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.

1. “Displaying in the Field House, softball field, soccer field, cafeteria and Reichhold Center for the Arts any unauthorized or obscene, offensive or obstructive sign,”
2. “[C]onduct which results in physical manifestations, significant restraints on normal behavior or conduct and/or which compels the victim to seek assistance in dealing with the distress,” and
3. “Verbal Assault, Lewd, Indecent or Obscene Conduct or Expressions on University Owned or Controlled Property or at University Sponsored or Supervised Functions,” when applied to speech that does not fit within the “obscenity” exception to First Amendment protection (an exception that’s limited to hard-core pornography).

The Foundation for Individual Rights in Education, which filed an amicus brief in the case, has more.

Sonnier argues … that SLU’s speech policy violates the First Amendment because it gives the University the “sole discretion … in determining both the need for, and the strength of the security” at the public assembly or demonstration, and assesses the cost of additional security on the sponsoring individual or organization. In response, the defendants assert that the fee has never been charged. Regardless of whether the fee has ever been charged, we agree with Sonnier.

In Forsyth County v. Nationalist Movement, the U.S. Supreme Court struck down a virtually identical security fee provision that required organizations to pay for “the cost of necessary and reasonable protection [for assemblies] … [that] exceeds the usual and normal costs of law enforcement ….” The Forsyth County Court found the security fee unconstitutional because, among other reasons, the regulation included no
objective standards directing how to establish the level of the fee. Instead, the amount of the security fee was left to the “whim of the administrator.”

The SLU security fee provision has the same shortcomings as the ordinance struck down in Forsyth County. As the policy states, determining the additional amount of security needed is at the “sole discretion” of the University; no objective factors are provided for the University to rely upon when making such a determination. Because of the unbridled discretion this provision gives to the University, we conclude that the district court abused its discretion in denying a preliminary injunction with regards to the security fee.

The court had no occasion to discuss the second basis for the Forsyth County decision, which was (and here I quote the Supreme Court’s decision as to parades on public streets in Forsyth, rather than the Fifth Circuit’s decision as to demonstrations at public universities in Sonnier),

The Forsyth County ordinance contains more than the possibility of censorship through uncontrolled discretion. As construed by the county, the ordinance often requires that the fee be based on the content of the speech.

The county envisions that the administrator, in appropriate instances, will assess a fee to cover “the cost of necessary and reasonable protection of persons participating in or observing said … activit[y].” In order to assess accurately the cost of security for parade participants, the administrator “‘must necessarily examine the content of the message that is conveyed,’” estimate the response of others to that content, and judge the number of police necessary to meet that response. The fee assessed will depend on the administrator’s measure of the amount of hostility likely to be created by the speech based on its content. Those wishing to express views unpopular with bottle throwers, for example, may have to pay more for their permit….

The costs to which petitioner refers are those associated with the public’s reaction to the speech. Listeners’ reaction to speech is not a content-neutral basis for regulation. Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob.

But I think this prong of Forsyth would likewise apply to universities, under the Fifth Circuit’s logic:

1. The Supreme Court in Forsyth held that security fees (A) couldn’t be imposed using the administrator’s unfettered discretion, because of the risk of content discrimination when such discretion is exercised, and (B) couldn’t be imposed even using nondiscretionary rules when those rules turned on the likely public reaction to the content of the speech.
2. The Fifth Circuit in Sonnier concluded that precedents related to content-neutral restrictions on speech on public streets did not apply fully to speech on public university land, and that universities should have more latitude (though not unlimited latitude) to impose such content-neutral restrictions.
3. But the Fifth Circuit nonetheless held that prong A of Forsyth applies automatically to speech on public university campuses, without any talk of more latitude being given to universities where discretionary fee policies were involved.
4. This suggests that prong B of Forsyth would likewise apply automatically to speech on public university campuses, since both prong A and prong B are animated by the same concern — the worry that the fees might be imposed based on content, either because of the administrator’s exercise of his unfettered discretion, or because of the likely public hostility to the content of the speech.

This is a pretty important issue, since my sense is that many universities do require security fees, sometimes based on the likely public reaction to the speech; see, for instance, here and here. And to my knowledge the Fifth Circuit opinion is the first appellate court decision to deal with public universities’ potentially content-based security fee policies; so I expect it to be influential even outside the Fifth Circuit.

The court did note, however, that the plaintiff might still prevail in an as-applied challenge, after more discovery. Its reasoning is also limited to content-neutral speech restrictions.

Rodriguez does say that its First Amendment analysis, and its statement that “Without the right to stand against society’s most strongly-held convictions, the marketplace of ideas would decline into a boutique of the banal, as the urge to censor is greatest where debate is most disquieting and orthodoxy most entrenched. The right to provoke, offend and shock lies at the core of the First Amendment” is “particularly so on college campuses.” But it didn’t say that it is only so on college campuses; the opinion’s rationale applies equally to other workplaces as well:

Plaintiffs no doubt feel demeaned by Kehowski’s speech, as his very thesis can be understood to be that they are less than equal. But that highlights the problem with plaintiffs’ suit. Their objection to Kehowski’s speech is based entirely on his point of view, and it is axiomatic that the government may not silence speech because the ideas it promotes are thought to be offensive. See Brandenburg v. Ohio, 395 U.S. 444, 448–49 (1969); Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 204 (3d Cir. 2001) [written by then-Judge Alito –EV]; DeAngelis v. El Paso Mun. Police Officers Ass’n, 51 F.3d 591, 596–97 (5th Cir. 1995). “There is no categorical ‘harassment exception’ to the First Amendment’s free speech clause.” Saxe, 240 F.3d at 204; see also United States v. Stevens (“The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits.”)….

The Constitution embraces … a heated exchange of views, even (perhaps especially) when they concern sensitive topics like race, where the risk of conflict and insult is high. See R.A.V. v. City of St. Paul, 505 U.S. 377, 391 (1992). Without the right to stand against society’s most strongly-held convictions, the marketplace of ideas would decline into a boutique of the banal, as the urge to censor is greatest where debate is most disquieting and orthodoxy most entrenched. See, e.g., Gitlow v. New York, 268 U.S. 652, 667 (1925); id. at 673 (Holmes, J., dissenting). The right to provoke, offend and shock lies at the core of the First Amendment.

Moreover, one of the cases the court cites for support is DeAngelis v. El Paso Mun. Police Officers Ass’n (5th Cir. 1995), which suggested that there might be First Amendment problems in applying hostile environment harassment liability where the defendant was a police officer labor organization (labor organizations can be sued under Title VII just as employers can be). And the law review article that it cites, following its statement that “We therefore doubt that a college professor’s expression on a matter of public concern, directed to the college community, could ever constitute unlawful harassment and justify the judicial intervention that plaintiffs seek,” likewise applies to employers generally, not just to colleges.

And as the cited article (my own student Note) argues, it doesn’t make sense to limit First Amendment protection — including the First Amendment principle on which the Ninth Circuit’s opinion relies — to colleges or other “communicative workplaces.” Here are some passages from that article, with a few edits:

Workplace speech is a critical part of our national public discourse. People spend more of their waking hours at work than anywhere else except (possibly) their homes. Much of most Americans’ political speech happens in the workplace. The average American does not go to public demonstrations, or burn flags outside the Republican party convention, or write books, or go to political discussion groups. But the average American does talk about current affairs with his coworkers.

This is especially true of any issues that have to do with workplace: affirmative action hiring, the rights of women, union politics, and the like. If a policeman feels that women make bad police officers, the logical place for him to talk about it is at work; likewise if someone wants to say that affirmative action “gives to less qualified minorities jobs that should belong to more qualified whites,” which may certainly offend minority employees. People who work for American heavy equipment manufacturers may often make intemperate comments about Japanese competitors. Racially polarized union elections can easily produce offensive comments or leaflets. (See here for citations, and many more examples.)

The opportunity to speak outside work is thus a poor, and constitutionally inadequate, substitute for speech in the workplace. The Court has consistently rejected such an “alternative channels for expression” argument when content-based distinctions were involved, and it is particularly untenable in this case, where the opportunities for an employee to communicate to his coworkers outside the workplace are theoretical at best. The government’s telling private employees that they can’t talk politics to their coworkers at the office generally means that the employees are barred from talking politics to their coworkers at all.

Harassment law is also a viewpoint-based restriction, the sort of restriction the Court has most strongly condemned. One person in the lunch room may speak eloquently and loudly about how women are equal to men, and harassment law will not stop him. But when another tries to respond that women belong in the home, that speech may become part of a harassment claim, and employers are therefore pressured to suppress it. It’s both extremely dangerous in this case, and an extremely dangerous precedent for the future, to let the government control the parameters of public debate this way.

And every place is someone’s workplace. The classroom is a teacher’s workplace; a university professor who dislikes art that’s posted in a classroom may claim that it constitutes harassment. Lots of people work in public buildings, parks, and other public spaces — to “protect” them, harassment law may restrict speech there, too.

Restaurants are full of employees who might complain about offensive jokes that they overheard patrons make; under harassment law, the employer would be obligated to suppress the speech of those patrons. In every library, there are employees who might be offended by sexually suggestive material that they see patrons display on the library’s computers.

Even private homes are often workplaces for housekeepers and other workers, who might complain about offensive art on the walls or offensive conversations by the residents or guests. The government’s muzzling speech “only in private workplaces” means muzzling it in very many places indeed.

Say that someone says something offensive in a private workplace, perhaps a private university but perhaps just a private law firm — for instance, through a workplace-wide e-mail, or in a lunchroom conversation that offended coworkers overhear, or in a cartoon posted on his office door. The private employer could of course restrict this speech without violating the Constitution, since the Constitution only applies to state action (with “state” here meaning “government,” including federal, state, and local governments). But if someone sues the employer, claiming that the employer had a legal duty to suppress speech and conduct that creates a hostile environment, then any imposition of liability on the employer for the employee’s speech would indeed be state action.

Consider an analogous case, Noah v. AOL Time Warner. Noah sued AOL, claiming that anti-Muslim speech in various AOL venues created a hostile public accommodations environment. The court held that the federal statute didn’t apply here, because the federal public accommodations statute doesn’t cover service providers (though some state statutes might), and because § 230 immunizes them. But the court also said that “construing Title II as plaintiff requests, to require that AOL censor or limit the speech of its members, may well cause the statute to run afoul of the First Amendment.” Why? Because even though AOL could restrict speech on its own private property, the First Amendment is triggered when federal or state law is read as requiring private property owners to so restrict speech (on pain of liability).

Nor is there any difference between private employers and other private property owners. Say Congress commanded that “Any employer that tolerates criticism of American soldiers shall be liable to any coworkers who are offended by such criticism, for instance those whose relatives were injured or killed in action.” (This is actually not that far-fetched a hypothetical; such speech might well qualify as something akin to “veteran status harassment,” a recognized claim under existing law.)

For state action purposes, this law is identical to harassment law. Instead of the government restricting people’s speech directly, the government is pressuring private employers — through the threat of liability — into restricting the speech. But surely this cannot be constitutional. Private employers, of course, may restrict employees’ speech with no First Amendment difficulties, just as private householders, publishers, churches, commercial landlords, and colleges may restrict speech on their property without triggering the First Amendment. But when the government pressures the private employers into restricting speech, the First Amendment steps in.

The Court has recognized this distinction between what a private employer can do to the employee and what the government can force the employer to do. For instance, in Truax v. Raich a state law required that at least eighty percent of each employer’s employees be citizens. Raich, a noncitizen who was discharged because of this law, sued, alleging that the law was a denial of equal protection, and the Court agreed. Though Raich’s employer could have fired Raich at any time, the Court said, the state’s attempt to force the employer to fire him was unconstitutional; the state, by imposing the eighty percent requirement on the employer, was acting directly upon the employee.

Similarly, in Peterson v. City of Greenville, a Greenville city ordinance required restaurants to be segregated, and plaintiffs were arrested for trespass when they ignored a lunch counter manager’s demand that they leave. Though the Court agreed that the manager could have kept his lunch counter segregated, it held that the city could not have required the manager to do this: Imposing the requirement that the manager eject blacks was tantamount to the city’s ejecting them directly. (The case was decided before the Civil Rights Act of 1964 prohibited discrimination in places of public accommodation.) Just as the government can’t avoid Equal Protection Clause scrutiny by forcing private parties to discriminate, so it can’t avoid First Amendment scrutiny by drafting private parties to implement speech restrictions.

I’ve written before against arguments that First Amendment rights need to be weighed against Fourteenth Amendment equality values, in a way that might justify restricting allegedly bigoted speech; I likewise criticize calls (whether from the left or the right) to weigh free speech rights against constitutional democracy values, constitutional privacy values, and the like. One of my arguments is that bigoted speech doesn’t actually violate the Equal Protection Clause, and to the extent that it offends “equal protection values,” those “values” can’t be seen as trumping First Amendment rights. But today’s Rodriguez opinion from the Ninth Circuit had a special twist on this constitutional conflict argument.

The premise of hostile environment harassment law, under which speech in workplaces, educational institutions, places of public accommodation, and the like could lead to liability, is this: An employer, educational institution, or place of public accommodation that tolerates speech or conduct that creates a hostile environment based on race/religion/sex/etc. for some of its patron is discriminatorily providing a worse environment to some people than to others. Therefore, the courts have held, the institution is violating statutes that ban such discrimination, and can be held liable under such statutes (for instance, Title VII of the Civil Rights Act of 1964 or similar state laws).

Now here’s the twist: The Equal Protection Clause has been held to bar discrimination based on race/religion/sex/etc. by government entities, even in the absence of any statute. Therefore, by the same logic as in the preceding paragraph, it has been read as barring government entities’ tolerating hostile work environments as well. So, the argument would go, in such a situation there is indeed a conflict between actual Equal Protection Clause rights (the right not to have a discriminatorily hostile environment tolerated by a government employer, educator, etc.) and First Amendment rights. The Rodriguez opinion confronted this argument, and while the treatment is fairly brief — this is a court opinion, not a law review article — it struck me as quite effective:

These First Amendment principles must guide our interpretation of the right to be free of purposeful workplace harass ment under the Equal Protection Clause. When Congress enacted the Fourteenth Amendment, it enshrined a concept of liberty that has been understood to include the “general principle of free speech.” Gitlow, 268 U.S. at 672 (Holmes, J., dissenting); see also Meyer v. Nebraska, 262 U.S. 390, 400 (1923). And, in Meyer, the Supreme Court relied on the fact that the “American people have always regarded education and acquisition of knowledge as matters of supreme importance” to find that the Fourteenth Amendment protected a teacher’s right “to teach and the right of parents to engage him so to instruct their children.” Id. Since then, the Fourteenth Amendment has consistently been held to incorporate the First Amendment’s protection of free speech and academic freedom against the states.

History likewise suggests that the Fourteenth Amendment was intended to extend, and not retract, the freedoms enshrined in the First. In the run up to the Civil War, professors and colleges played a key role in the spread of abolitionist ideas. See Robert Bruce Slater, The American Colleges That Led the Abolition Movement, J. Blacks in Higher Educ., Sept. 1995 at 95-97. The South moved to harshly suppress abolitionism as dangerous and incendiary, and Republicans responded by making “demands for free speech a centerpiece of their political program.” Michael Kent Curtis, The 1859 Crisis Over Hinton Helper’s Book, The Impending Crisis: Free Speech, Slavery, and Some Light on the Meaning of the First Section of the Fourteenth Amendment, 68 Chi.-Kent L. Rev. 1113, 1151 (1993); see also id. at 1131, 1134-38. It can hardly be surprising, then, that the Reconstruction Congress sought to protect freedom of speech along with other fundamental liberties when it enacted the Fourteenth Amendment. See, e.g., id. at 1172-74. Free speech has been a powerful force for the spread of equality under the law; we must not squelch that freedom because it may also be harnessed by those who promote retrograde or unattractive ways of thought.

Professor Walter Kehowski sent three racially-charged emails over a distribution list maintained by the Maricopa County Community College District, where he teaches math. [For details, see PDF pp. 4-5 of the opinion, or the end of this post. -EV] Every district employee with an email address received a copy. Plaintiffs, a certified class of the district’s Hispanic employees, sued the district, its governing board and two district administrators (the chancellor and the president) claiming that their failure to properly respond to Kehowski’s emails created a hostile work environment in violation of Title VII and the Equal Protection Clause…. The district court … denied summary judgment to the president and chancellor on plaintiffs’ constitutional claim, including on the issue of qualified immunity, and to the remaining defendants on both the constitutional and Title VII claims….

Plaintiffs no doubt feel demeaned by Kehowski’s speech, as his very thesis can be understood to be that they are less than equal. But that highlights the problem with plaintiffs’ suit. Their objection to Kehowski’s speech is based entirely on his point of view, and it is axiomatic that the government may not silence speech because the ideas it promotes are thought to be offensive. See Brandenburg v. Ohio, 395 U.S. 444, 448-49 (1969); Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 204 (3d Cir. 2001) [written by then-Judge Alito -EV]; DeAngelis v. El Paso Mun. Police Officers Ass’n, 51 F.3d 591, 596-97 (5th Cir. 1995). “There is no categorical ‘harassment exception’ to the First Amendment’s free speech clause.” Saxe, 240 F.3d at 204; see also United States v. Stevens (“The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits.”)….

Without the right to stand against society’s most strongly-held convictions, the marketplace of ideas would decline into a boutique of the banal, as the urge to censor is greatest where debate is most disquieting and orthodoxy most entrenched. The right to provoke, offend and shock lies at the core of the First Amendment.

This is particularly so on college campuses. Intellectual advancement has traditionally progressed through discord and dissent, as a diversity of views ensures that ideas survive because they are correct, not because they are popular. Colleges and universities — sheltered from the currents of popular opinion by tradition, geography, tenure and monetary endowments — have historically fostered that exchange. But that role in our society will not survive if certain points of view may be declared beyond the pale….

We therefore doubt that a college professor’s expression on a matter of public concern, directed to the college community, could ever constitute unlawful harassment and justify the judicial intervention that plaintiffs seek. See Eugene Volokh, Comment, Freedom of Speech and Workplace Harassment, 39 UCLA L. Rev. 1791, 1849-55 (1992). Harassment law generally targets conduct, and it sweeps in speech as harassment only when consistent with the First Amendment. See R.A.V., 505 U.S. at 389-90. For instance, racial insults or sexual advances directed at particular individuals in the workplace may be prohibited on the basis of their non-expressive qualities, Saxe, 240 F.3d at 208, as they do not “seek to disseminate a message to the general public, but to intrude upon the targeted [listener], and to do so in an especially offensive way,” Frisby v. Schultz, 487 U.S. 474, 486 (1988). But Kehowski’s website and emails were pure speech; they were the effective equivalent of standing on a soap box in a campus quadrangle and speaking to all within earshot. Their offensive quality was based entirely on their meaning, and not on any conduct or implicit threat of conduct that they contained.

In the context of a supervisory relationship, advocacy of discriminatory ideas can connote an implicit threat of discriminatory treatment and could therefore amount to intentional discrimination. [Footnote: Because this is not such a case, we cannot hold what standard should be applied to determine whether advocacy of discriminatory ideas by a supervisor contains an implicit threat and constitutes harassment. Suffice to say that supervisors retain First Amendment rights and their speech is entitled to significant breathing space before it will be deemed harassment. Cf. Lovell v. Poway Unified Sch. Dist., 90 F.3d 367, 372 (9th Cir. 1996) (speech can only be prohibited as a threat if a reasonable person would foresee that it would be interpreted as a serious expression of intent to act in the threatened manner).] But plaintiffs have not alleged that Kehowski’s speech was made in such a context, or that he has any control over their employment….

It’s easy enough to assert that Kehowski’s ideas contribute nothing to academic debate, and that the expression of his point of view does more harm than good. But the First Amendment doesn’t allow us to weigh the pros and cons of certain types of speech. Those offended by Kehowski’s ideas should engage him in debate or hit the “delete” button when they receive his emails. They may not invoke the power of the government to shut him up.

Here are the Kehowski e-mails, and excerpts from the Web pages linked to from the third e-mail:

Kehowski’s first email had “Dia de la raza” as its subject line and asked, “Why is the district endorsing an explicitly racist event?” (Citations and emphasis omitted.) Día de la Raza translates as “Day of the Race” and is celebrated by some Hispanics instead of Columbus Day.

Kehowski’s next email, sent almost a week later, began, “YES! Today’s Columbus Day! It’s time to acknowledge and celebrate the superiority of Western Civilization.” Kehowski then offered excerpts from a variety of articles. One article quoted Arthur Schlesinger, Jr. as saying that “democracy, human rights and cultural freedom” are “European ideas.” Another promoted a theory that “Native Americans actually committed genocide against the original white-skinned inhabitants of North America.” (Emphasis omitted.) Yet another argued that “America did not become the mightiest nation on earth without distinct values and discrimination” and asserted that “[o]ur survival depends on discrimination.”

Two days later, Kehowski sent a third email that began, “Ad hominem attacks are the easiest to launch and the most difficult to defend against.” Kehowski quoted an email calling his messages “racist” and said: “Boogie-boogie-boo to you too! Racist? Hardly. Realistic is more like it.” He quoted an email claiming that “[m]ost thinking people believe that the European, Christian victory over the Moorish, Islamic (and African) culture in Spain is an example of a victory of a ‘backward’ culture over one that was more civilized.” He responded: “[H]istory has answered quite convincingly which cultures were backward.” And he warned: “[I]f we don’t pull ourselves out of the multicultural stupor, another culture with some pretty unsavory characteristics (here, here, and here) will dominate (here, here, and here) [and not without a little help from the treasonous scum Bill Clinton].” (Bracketed words in original.)

This third email linked to a website maintained by Kehowski on the district’s web server. The school’s technology policy encouraged faculty to develop district-hosted websites for use “as a learning tool,” although faculty also maintained sites of a personal nature. Kehowski’s site declared that “[t]he only immigration reform imperative is preservation of White majority” and urged visitors to “[r]eport illegal aliens to the INS.” (Emphasis omitted.) Like his emails, Kehowski’s website quoted and linked to articles. One critiqued a “shallow and self-contradictory” ideology in which “[r]ace must be held meaningless only by whites.” Another expressed concern that “[t]he persistent inflow of Hispanic immigrants threatens to divide the United States into two peoples.”

The University of Calgary is threatening to expel a group of students who refused to move a graphic anti-abortion display on campus….

[In november 2008, the group] refused university administrators’ requests to make the posters [of aborted fetuses] — which compared abortion to the Holocaust and the genocide in Rwanda — less visible, and also ignored a letter threatening legal action.

Six students were charged with trespassing on campus, but those charges were later stayed.

The group put up the display again on April 8, and was asked by campus security to turn the graphic images inward, away from passersby. The students snubbed that request and refused to leave campus, according to the university’s letter.

Their “failure to comply with the direction of a campus security officer or university official in legitimate pursuit of his/her duties” could result in sanctions ranging from fines or probation to suspension or expulsion….

Judging by the photograph in the newspaper, the sign at issue is this one:

A student performance of an excerpt from Corpus Christi, a play positing Jesus Christ as a gay man, was canceled this past Friday at Tarleton State University (TSU) in Texas amid controversy and calls for censorship.

The performance of the excerpt, which was to be directed by TSU student John Otte, was scheduled to be held on Saturday morning as fulfillment of an assignment for an advanced directing class. Instead, Corpus Christi and three other student-directed plays, also scheduled for Saturday, were canceled by the class’s professor late Friday evening[, citing] … “safety and security concerns for the students as well as the need to maintain an orderly academic environment.” …

Otte’s selection of award-winning American playwright Terrence McNally’s play had prompted condemnation from fellow students and community members because of the play’s content. Shamefully, even Texas Lieutenant Governor David Dewhurst weighed in on the side of censorship, saying in a statement that “Every citizen is entitled to the freedom of speech, but no one should have the right to use government funds or institutions to portray acts that are morally reprehensible to the vast majority of Americans.”

Fortunately, however, … TSU President F. Dominic Dottavio recognized in a March 11 open letter that while TSU does not endorse the play, and while he personally found it “offensive, crude, and irreverent,” TSU, as a public university, was “legally bound to allow the student production to go forward.” Dottavio further wrote:

We have had many conversations with the Office of General Counsel for The Texas A&M University System and they have made it clear to us that this is an unambiguous freedom of speech (First Amendment) issue. The Supreme Court of the United States has consistently held that public universities may not engage in the sort of censorship that prohibiting this student’s project would involve. This concept was reaffirmed by the 2008 Higher Education Opportunity Act which stressed that students should not be intimidated, harassed, or discouraged from speaking out. Like every citizen of the country, the student who chose to direct excerpts from the play enjoys his right to free speech. This right is protected by law even if the speech is offensive to others. But, again, it is important to understand that this is not the university’s speech; it is the student’s speech.

When actions and words are particularly offensive, the freedoms we enjoy can often lead to lively debate. As an educator, I believe the debate should be conducted with civility and respect. That is exactly what I expect from our Tarleton family and that is what I have seen from the campus community.

Despite Dottavio’s plea for a civil debate, Mark [Holtorf], an assistant professor at TSU, told the Fort Worth Star-Telegram that the university’s drama department received threats which prompted the cancellation:

“We received so many threatening calls and e-mails today across campus, the numbers were staggering. One administrator received in excess of 800 e-mails. Our department received calls of a threatening nature. I could not guarantee the safety of my students. The administration was truly behind the academic exercise, but I could not justify the safety risk.”

In essence, then, the heckler’s veto seems to have successfully censored speech on campus in this instance, as security threats preempted protected expression. It is impossible for FIRE to know for certain if behind-the-scenes pressure from TSU administrators or elected officials like Lt. Gov. Dewhurst played some tacit role in the performance’s cancellation, but in any event, the show will not go on. [UPDATE: I originally trimmed this paragraph for space reasons, but decided to put it back in.]

This particular silencing of speech is difficult for FIRE to fight. Had President Dottavio or another TSU administrator buckled to political pressure and cancelled the performance on his own, the First Amendment violation would be clear as day …. But because the performance was an assignment for a class, and the decision to cancel this play and the others was made by the professor, First Amendment protections are not implicated in the same way. Generally speaking, a professor enjoys a great deal of pedagogical deference to control classroom speech, and for the most part may conduct class as he or she sees fit….

[Nonetheless, t]hat the performance was cancelled because of threats of violence is a deeply depressing development for respect for the First Amendment in Stephenville, Texas, where TSU is located. If TSU community members, local citizens, and even the state’s elected officials don’t understand that (1) the First Amendment exists precisely to protect speech that challenges widely held presumptions about politics, religion, and other issues of the day and (2) the answer to speech with which one disagrees is more speech, not violence or censorship, then the phenomenon we here at FIRE call “unlearning liberty” is advancing faster and further than we feared….

It’s incredibly disappointing when our fellow Americans threaten violence and shout down those with whom they disagree rather than choose to engage in rational debate and accept the wonderful fact that in this country, unlike so many others, each citizen is free to speak his or her mind.

FIRE has more; a sad occasion indeed. For more on a similar incident, in which FIRE condemned a university that tried to suppress a parody of The Passion of the Christ, see here. For more on thuggery suppressing free speech, see far too many other examples, such as this one.

Duke University’s Women’s Center has canceled an event about motherhood because the sponsor was engaging in pro-life expression elsewhere on campus. A Women’s Center representative told Duke Students for Life (DSFL) that “we have a problem” and an ideological “conflict” with the event, which was supposedly canceled to protect Duke women from encountering the event during the group’s “traumatizing” pro-life “Week for Life.” …

As part of a “Week for Life” series of events held at Duke over March 15-19, DSFL had reserved a Women’s Center space for a “Discussion with a Duke Mother” on March 18. A Duke student and mother was to speak about motherhood and the challenges of being in both roles. But the day before the event, the reservation was abruptly canceled in a voicemail to the group.

Meeting with the group on March 18, Duke Women’s Center Gender Violence Prevention Specialist Martin Liccardo said that because the event was associated with the Week for Life and DSFL, the event could not be held at the Women’s Center.

Liccardo told the group that the prospect of holding a pro-life event in the Women’s Center during Week for Life was too upsetting for some students: “We had a very strong reaction from students in general who use our space who said this was something that was upsetting and not OK. So based on that, we said, OK, we are going to respond to this and stop the program.” …

Oh, yes, and the Women’s Center “ascribe[s] to a broadly defined, fluctuating and inclusive feminist ideology that welcomes discordant viewpoints from varied experiences.” I guess this must be one of those fluctuations away from welcoming discordant viewpoints.

Duke is a private university, and is not bound by the Free Speech Clause. (That isn’t changed by Duke’s acceptance of government money.) But it is a university that claims it supports “freedom of inquiry and the free exchange of ideas” as “essential for the fulfillment of the university’s mission,” and we should hold it responsible for such blatantly viewpoint-based and narrow-minded exclusions of “discordant viewpoints” (even when the exclusion is just from one particular building).