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Another Court Decision Striking Down a Campus Speech Code,

from the U.S. Court of Appeals for the Third Circuit in DeJohn v. Temple Univrsity (thanks to How Appealing for the pointer). Temple had revised its policy on January 15 of this year, but the court still held that it had the jurisdiction to hold the earlier one unconstitutional.

The code was framed as a ban on, among other things, "sexually harassing" speech (labeled "expressive[ or] visual conduct of a sexual or gender-motivated nature") that creates an "intimidating, hostile, or offensive environment" based on sex; but the rationale of the decision would apply equally to speeches that supposedly harasses based on religion, race, sexual orientation, and the like. Here are some key passages:

In Saxe [an earlier case that involved high schools], we noted that there is no "harassment exception" to the First Amendment's Free Speech Clause; that is, "we have found no categorical rule that divests 'harassing' speech as defined by federal anti-discrimination statutes, of First Amendment protection." We explained that while there is no question that non-expressive, physically harassing conduct is entirely outside the ambit of the free speech clause, "[w]hen laws against harassment attempt to regulate oral or written expression on such topics, however detestable the views expressed may be, we cannot turn a blind eye to the First Amendment implications. 'Where pure expression is involved,' anti-discrimination law 'steers into the territory of the First Amendment.'" Id. at 206 (quoting DeAngelis v. El Paso Mun. Police Officers Ass'n, 51 F.3d 591, 596 (5th Cir. 1995) [a case noting possible First Amendment problems with hostile work environment law -EV]).

Recognizing, then, that some "harassing" speech may be worthy of First Amendment protection, we look to see whether Temple's Policy on Sexual Harassment reaches too much expression that is constitutionally protected. The relevant portion of Temple's challenged sexual harassment policy reads:

For all individuals who are part of the Temple community, all forms of sexual harassment are prohibited, including the following: an unwelcome sexual advance, request for sexual favors, or other expressive, visual or physical conduct of a sexual or gender-motivated nature when ... (c) such conduct has the purpose or effect of unreasonably interfering with an individual's work, educational performance, or status; or (d) such conduct has the purpose or effect of creating an intimidating, hostile, or offensive environment. [emphasis added by court -EV] ...

[T]he policy's use of "hostile," "offensive," and "gender-motivated" is, on its face, sufficiently broad and subjective that they "could conceivably be applied to cover any speech" of a "gender-motivated" nature "the content of which offends someone." This could include "core" political and religious speech, such as gender politics and sexual morality. [Footnote: Indeed, in the instant case, the Plaintiff, a graduate student pursuing a master's degree in Military and American History, argues that he felt inhibited in expressing his opinions in class concerning women in combat and women in the military.] Absent any requirement akin to a showing of severity or pervasiveness -- that is, a requirement that the conduct objectively and subjectively creates a hostile environment or substantially interferes with an individual's work -- the policy provides no shelter for core protected speech.

I think even bans that do require that the speech be "severe or pervasive" in order to be punished unacceptably deter some constitutionally protected speech, for reasons I discuss here and here. Among other things, such bans will naturally lead to punishing even individual instances of speech, that create a supposedly hostile environment when aggregated with speech by other speakers. I'm therefore troubled by the potential approval of the seemingly narrower "severe-or-pervasive"-based policy. And I'm troubled by the court's ambiguous suggestion that the Tinker disruption standard applies not just to K-12 schools but also to universities; for more on the ambiguousness of this suggestion, but see PDF pp. 28-29, suggesting university student speech should be much more protected than K-12 student speech.

Still, at least the panel is right in striking down the broad policy here. I'm also pleased that the panel declined to expressly approve of workplace harassment law, noting that Third Circuit precedent "does not pass on whether the EEOC language [endorsing workplace harassment liability under a standard similar to Temple's] is or is not constitutional," and that the panel expressly acknowledged that

some speech that creates a "hostile or offensive environment" may be protected speech under the First Amendment. It is difficult to cabin this phrase, which could encompass any speech that might simply be offensive to a listener, or a group of listeners, believing that they are being subjected to or surrounded by hostility. Certainly speech amounting to "fighting words" would not be protected, but the policy covers much more speech than could be prohibited under Tinker's substantial disruption test as well as speech that does not rise to the level of "fighting words."

For my view of what sort of speech would be protected against workplace harassment liability, see here, though I would think that even more protection should be offered in the university context.

Ace:
Is there a state action issue here? Temple is not a traditional state school. It is "state-related" meaning it gets funding but is under independent control. It is public, but it is also not.
8.4.2008 7:17pm
J. Aldridge:
Dang, the courts even abuse the First Amendment itself these days.
8.4.2008 7:26pm
Eugene Volokh (www):
J. Aldridge: It's generally more helpful if comments are a little more specific -- yours was a little opaque.

Ace: That an institution gets government funding doesn't make it a state actor for First Amendment purposes. I take it that the lack of controversy about this in the opinion stems from Temple's being "an instrumenality of the Commonwealth [of Pennsylvania]."
8.4.2008 8:35pm
Pon Raul (mail):
It is ironic that courts on one hand make is so that private entities need to prevent speech to avoid liability for having a harrassing work environment, while the courts are now saying that government entities cannot do the same. It seems to me that the biggest threat to free speech are courts that find harrassing work environments. I think that people should be allowed to sue Judges, and they should be found personally liable, for any rulings that supress work place free speech.
8.4.2008 10:08pm
kshankar:
The Office of Student Activities at Temple has a provision that stated that no racist, sexist, drug, or alcohol related "picture" or "visual" could be put on the banners for the events that involved having a table out on campus. The fact that they put two major social problems next to drug or alcohol related language was fairly insulting, I thought, towards sexism and racism. I had to deal with this provision first hand when my group (the campus Libertarian group) was not allowed to display a marijuana leaf on our sign, indicating our pro-legalization stance, alongside our image of a dollar sign (indicating our pro-market stance). However, I notified the ACLU of this and that was cleared up. I think.
8.4.2008 11:33pm
Middle Ground (mail):
Apparently the Dale Carpenter entry on Same-sex Marriage isn't taking comments now. Since my issue is broad, I'm commenting here.
Carpenter notes that "Now UCLA's Williams Institute, which supports same-sex marriage..." This begs the question, what political issues should an element of a public university be taking positions on? Before anyone starts hollering about "academic freedom," I am not asking with respect to an individual faculty member or researcher's publications, speeches, etc. What I am asking about is whether an arm of the university -- or an element that could reasonably be assumed to be an arm of the university -- should be endorsing a specific position of a political/ideological nature? Obviously the answer should not depend upon whether one subscribes to, versus objects to, the particular position being espoused. For example, should UCLA permit itself to house a Doe Institute that takes a position, that, say, "supports intelligent design?" (Or anything else -- one could postulate horrific hypotheticals like a neo-Nazi group.)
Would appreciate hearing Eugene, Dale, others' thoughts.
8.5.2008 12:15am
J. Aldridge:
OK, I should had added where is the prior restraint by an act of the State legislature for which the school was obligated by an act of law to obey.

Would a school be in trouble if it passed a policy that prohibited "uttering, printing, writing, or publishing any disloyal, profane, scurrilous, or abusive language, or language intended to cause contempt, scorn, contumely or disrepute as regards the form of government of the United States."???

AND someone explain to me why this is a federal matter? Section one of the 14th amendment says nothing about freedom of speech. As far as I can tell, no court ever considered any of the first eight amendments a privilege or immunity under article IV, sec. II. The House judiciary was pretty clear in January of 1871 when it said the amendment did not "refer to privileges and immunities of citizens of the United States other than those privileges and immunities embraced in the original text of the Constitution, article four, section two."
8.5.2008 1:34am
FantasiaWHT:
kshankar - I wonder if MADD would have been banned from showing a bottle of wine with an X through it?
8.5.2008 10:15am
MikeLibertyFan:
The DeJohn decision is a landmark victory for free speech in higher education. FIRE, the Foundation for Individual Rights in Education, filed a compelling amicus curiae brief in September 2007 urging the Third Circuit to uphold the federal district court's decision that can be found here http://www.thefire.org/index.php/article/8353.html. FIRE also issued a press release yesterday with their thoughts on the decision, it can be found here http://thefire.org/index.php/article/9573, and is definitely worth a look.
8.5.2008 11:19am
U.Va. 3L:
J. Aldridge--the First Amendment was incorporated, via the 14th Amendment's Due Process Clause, in Gitlow v. New York (1925):
For present purposes we may and do assume that freedom of speech and of the press-which are protected by the First Amendment from abridgment by Congress-are among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States.
8.5.2008 12:10pm
Hans Bader (mail) (www):
The ruling in DeJohn v. Temple University is correct, based on Supreme Court and Third Circuit precedent, although it didn't provide much guidance for college administrators.

It is ironic how courts routinely force private employers to restrict speech in ways that they forbid state universities to do.

When a court imposes liability on a private employer for "harassing" speech by private employees in its workplace, that is state-action, and thus is logically subject to First Amendment limits. See Korb v. Lehman (4th Cir. 1990) (when government official orders private employer to fire employee for speech, the firing is state action that violates the First Amendment); New York Times v. Sullivan (U.S. Supreme Court, 1964) (tort liability is state action); Truax v. Raich (Supreme Court, 1916) (when state makes private employer fire someone, that is state action that implicates the constitution).

But courts have pretended that that's not true in harassment cases. See Robinson v. Jacksonville Shipyards (M.D. Fla. 1991) (claiming that private employer could not raise First Amendment defense to harassment claim to the extent that it was based on speech by its employees).

That pretense, adopted by the EEOC in some of its briefs, is simply false.

Ironically, the Supreme Court was probably attempting to avoid this First Amendment problem in the schools by holding in its Davis decision that in the school setting (unlike the workplace), harassment must be BOTH severe AND pervasive to give rise to liability.

In the workplace, it need only be severe OR pervasive, so garden variety racist or sexist speech can, if voiced by a sufficient number of speakers in a workplace, be deemed "pervasive," thus pressuring the employer to ban all such instances of speech if it wishes to avoid any risk of liability.

By contrast, in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), the Supreme Court said that harassment had to "severe" AND "pervasive" AND interfere with educational opportunities. It emphasized this four times in the body of its opinion, and emphasized that a single incident of harassment, even if severe, would not constitute harassment in schools (even though it is blackletter law that a single severe incident could be enough in a workplace).

Lower courts have sometimes ignored Davis's language, claiming that harassment need only be severe OR pervasive.

By so doing, they have driven frightened school officials to censor mildly offensive speech that is not severe, merely because it happens to be pervasive (given how much people talk in the course of their daily lives, almost any kind of sexual banter is indeed pervasive on a college campus).

In so doing, they have created a serious First Amendment problem.

The Temple University policy might have been rational if the EEOC's workplace harassment guidance applied, but it doesn't: Title IX applies Davis's severe AND pervasive standard, which is not consistent with the EEOC's guidelines.

Indeed, the EEOC's guidelines are BROADER even than the Supreme Court's workplace harassment precedents in what speech they forbid, since they ban speech that has the "purpose" of offending co-workers, not just speech that has the "effect" of creating a hostile work environment.

The EEOC is not at liberty to discard basic requirements of the hostile-work-environment cause of action, such as the requirement that speech actually have a substantial negative impact on the complainant. See Saxe v. State College Area School District, 240 F.3d 200 (3d Cir. 2001) (Alito, J.) (invalidating harassment policy modeled on EEOC guidelines in K-12 setting, and giving as one reason the fact that it banned speech that merely had the "purpose" of creating a hostile environment, without having the "effect" of creating a hostile environment); Meltebeke v. Bureau of Labor &Industries, 903 P.2d 351 (Or. 1995) (Unis, J.) (state civil-rights agency violated free speech by eliminating requirement that speech not just offend the complainant, but create work environment that in fact was objectively and subjectively hostile as well); Garcia v. Spun Steak Co., 998 F.2d 1480 (9th Cir. 1993) (invalidating EEOC's language discrimination guidelines defining English-only rules as discriminatory and harassing, for exceeding court definitions of discrimination, and noting that the Supreme Court has repeatedly invalidated EEOC regulations based on the fact that the EEOC lacks substantive rulemaking authority).
8.5.2008 12:56pm
J. Aldridge:
U.Va. 3L: So the Fifth Amendment and Magna Carta Article 39 always protected Freedom of Speech... or was this particular court holding assuming way too much?
8.5.2008 1:37pm
Dan Hamilton:

For all individuals who are part of the Temple community, all forms of sexual harassment are prohibited, including the following: an unwelcome sexual advance


How do you KNOW if a sexual advance (asking a person out) is unwelcome until you ask?

This I believe shows the stupidity of length that the harassment rules or laws have gone to. That any rational person would create such a rule shows how totally out of touch with reality they are.
8.5.2008 2:58pm
wooga:
J. Aldridge:
<i>U.Va. 3L: So the Fifth Amendment and Magna Carta Article 39 always protected Freedom of Speech... or was this particular court holding assuming way too much?</i>

"Due Process" under the 5th =/= "Due Process" under the 14th

You can argue all you want that this SHOULDN'T be a federal issue. But that issue was settled decades ago. You'd need to clone Justice Thomas many times to have even a glimmer of hope that SCOTUS might 'unincorporate' the 1st.

BTW, which court are you referring to when you said "this court"? Gitlow? DeJohn?
8.5.2008 3:32pm
alexanorak (mail):
Decisions like DeJohn, are obviously doing little to change the basic culture that spawns the censorship. It would be much more effective if all non-pussies on college campuses just wore a t-shirt every day to the following effect: free speech assumes actual adulthood, and women and people of color are simply too emotionally fragile to permit realization of this ideal. We therefore support our campus administrators in the suppression of speech to whatever extent necessary to protect the tender feelings of these less than fully capable beings. We must remember that true sophistication is hard work, and showing that one's feelings are easily hurt is a shortcut version for the masses.
8.5.2008 4:40pm
J. Aldridge:
wooga said: "Due Process" under the 5th =/= "Due Process" under the 14th."

Yeah, but the author of the 14th said a half dozen times "Due Process" was the words of the Magna Carta, article 39.

I was addressing Gitlow.
8.5.2008 4:54pm
wooga:
Thanks for the explanation, J. Aldridge.

I do not believe that article 39 of the Magna Carta could reasonably be said to support binding the states to the 1st via the 14th. If your link between the magna carta and the 14th's 'due process' meaning are correct, then I would say the Gitlow court assumed waaaaay too much.

I think most of the pro-incorporation arguments are crap, but I've given up hope that anything will be done to fix the crap.
8.5.2008 7:35pm
kshankar:
FantasiaWHT

Yes, as well as a DARE group with a X across a pot leaf. I wonder what it would take to get a NORML chapter started there. Oh, and just to add, while the Office did not permit us to use the leaf visual on our banner (since they said that we would have the ability to come up with something that relates to personal freedom and libertarianism while complying with the "minimal" rules that the Office has...), we did so anyways. We didn't get in trouble either, even though I wonder what the consequences would be. Thanks to my internship at the ACLU, the lawyers on both sides cleared this provision up fairly well without any hassle. Still, it was a ridiculous rule to have.
8.5.2008 8:33pm
David M. Nieporent (www):
Yeah, but the author of the 14th said a half dozen times "Due Process" was the words of the Magna Carta, article 39.
Who cares? Once again, we do not follow Binghamism in the United States. Some people are originalists, while others are living constitutionalists, but there is no school of thought which argues that "ask Bingham" is the answer to the question, "What does the constitution mean?"

Not to mention that you continually ignore that Bingham explicitly said that the 14th amendment incorporates the first eight amendments.
8.6.2008 12:03am
J. Aldridge:
David M. Nieporent said: "Who cares? Once again, we do not follow Binghamism in the United States."

What? The court salivates all over either his speeches or clauses under the first section of the 14th amendment! Binghamism is firmly rooted all around us!

David M. Nieporent said: "Not to mention that you continually ignore that Bingham explicitly said that the 14th amendment incorporates the first eight amendments."

You mean that highly partisan speech on March 31, 1871 where he specifically referred to the privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State? Why did he make a distinction between citizens of a state and citizens of the United States?

Here, he tells you why:

Bingham: "This guarantee is of the privileges and immunities of citizens of the United States in, not of, the several States."

Bingham: "I respectfully ask him [Rep. Hale] to inform us whence he derives the authority for supposing, if he does suppose, that any State has the right to deny to a citizen of any other State any of the privileges or immunities of a citizen of the United States."

Bingham: The 14th Amendment does not "refer to privileges and immunities of citizens of the United States other than those privileges and immunities embraced in the original text of the Constitution, article four, section two."

And you say "who cares"! I'm sure Hitler used your exact words more than once.
8.6.2008 12:45pm
David M. Nieporent (www):
I'm glad you think prepositions are so exciting that you need to boldface them, but that really has no particular significance for this discussion.

The point of the 14th amendment, as stated by Bingham, was to overrule Barron v. Baltimore and incorporate the first eight amendments. I don't see why anybody would care what Bingham said, but if one does, he says the opposite of your loony argument.
8.6.2008 9:58pm
J. Aldridge:
David M. Nieporent said: "The point of the 14th amendment, as stated by Bingham, was to overrule Barron v. Baltimore and incorporate the first eight amendments. I don't see why anybody would care what Bingham said, but if one does, he says the opposite of your loony argument."

No sir, he brought up the case of Barron to illustrate Congress lacked the power to enforce the privileges or immunities of United States citizens under Article IV. Bingham: "It had been judicially determined [Barron] that the first Eight Amendments of the Constitution were not limitations on the power of the States, and it was apprehended that the same might be held of the provision of the second section, fourth article."
8.6.2008 11:14pm
Hoosier:
"And you say "who cares"! I'm sure Hitler used your exact words more than once."

Hitler also brushed his teeth. So let's avoid that as well!
8.7.2008 1:30am
Suzy (mail):

Among other things, such bans will naturally lead to punishing even individual instances of speech, that create a supposedly hostile environment when aggregated with speech by other speakers.


I sympathize with the theory, but practically speaking this is not a bad idea when you're the only gal in a classroom or an engineering office with a group of guys, most of whom are making speculative comments about your sex life and the merits of your clothing every day before lecture or during the work day. Makes it a little harder to concentrate on the task at hand. Personally, I was always able to rise above, even without having to slap anyone. (In the olden days I understand a firm slap was the proper response to cheeky crudity, but apparently nowadays it could be misinterpreted as a battery or somesuch.) Anyway, such experiences made me realize that this could a serious problem that goes beyond treading on someone's feelings. One person makes an "unwelcome sexual advance" or sexual comment, and it's a trivial situation. A dozen of them in the office do so once a week, and it's no longer trivia, even if any one person's contribution is less damaging than the whole.
8.8.2008 1:11pm