The Volokh Conspiracy - USC Violating the Law by Restricting Student Speech:

[See UPDATE below for the USC Administration's ultimate decision on the matter, which I think is much better than its initial decisions.]

The Daily Trojan reports:

Eddie Marquez, assistant director of Norman Topping Student Center, shut down a Gender and Sexuality Week event being held in a designated free-speech zone after receiving several complaints about vulgar language.

George Weiss Vando was near Tommy Trojan and in the middle of performing "Man Lady," a performance based on his life experiences, when Marquez interrupted him, asked the organizers to turn the speakers off and pulled the power cords. . . .

Marquez said that after hearing complaints from a Department of Public Safety officer, a staff member and the vice president's office, he made the decision to stop the performance. He did not give names of the complainants.

Ian Scott, a senior majoring in music education, was walking past Tommy Trojan between classes when he heard Vando speaking. . . . Scott said the language and content of the poetry was "raunchy," but was also artistic and not profane.

The term "motherf-----" was used. . . . [Scott is quoted as a witness, not as someone who was complaining. -EV] . . .

When asked if vulgar speech was allowed in the free speech zone, Marquez said, "I would say no, just because we don't want to offend anyone . . . We do this to protect the students and make sure we maintain the integrity of the university."

A later story reports that a couple of days later students tried to protest the administration's actions by displaying signs that used the word "fuck" and its variations; the administration shut down one such protest, and apparently tried to shut down a second, though the story is a bit ambiguous on what ultimately happened as to the second protest. USC Department of Public Safety officer Bryan Hunt said display of profanity violated California Penal Code 415. "'This is the deal: There is freedom of speech, but there are words that can offend people,' Hunt said."

1. As to California Penal Code 415, USC is 35 years behind the times. In Cohen v. California (1971), the U.S. Supreme Court dealt with the prosecution of someone publicly displaying the word "fuck," under precisely the statute USC is citing, California Penal Code 415. The Court held that such public display of profanity generally may not be criminally punished, unless it's a personalized insult "directed to the person of the hearer" and therefore likely to start a fight — if you say "fuck you" to someone, that might be criminally punishable, but wearing a "Fuck the Draft" jacket (the particular facts involved in Cohen), giving a performance that uses the word "motherfucker," carrying signs containing the word "fuck" as a protest against suppression of profanity, and the like are constitutionally protected.

2. USC is also over 10 years behind the times when it comes to the broader question of whether it may suppress offensive student speech. As a private university, USC is not bound by the First Amendment — but the Leonard Law, enacted by the California Legislatures in 1992, obligates private colleges in California to generally tolerate student speech under the same standards imposed by the First Amendment on the government:

(a) No private postsecondary educational institution shall make or enforce any rule subjecting any student to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside the campus or facility of a private postsecondary institution, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article 1 of the California Constitution. . . .

I'm not wild about this restriction on private universities' freedom of action; while I think that private universities generally ought not suppress student speech, I think they should have the legal right to do so. But the Leonard Law is the law in California, and it seems to me that USC ought to comply with it. And the Leonard Law quite clearly bars USC from suppressing student speech simply because it's offensive or because includes profanities.

UPDATE: I'm pleased to report that the USC administration has ultimately come to the right conclusion:

Carey Drayton, assistant chief for the Department of Public Safety, is quoted as saying: "The administrator should have said, 'Yes, it may be offensive to you, but that person has a right to speak,'" Drayton said. "We're going to start a joint training with administrators and DPS so everybody will know what is expected."

	[Eugene Volokh, February 9, 2006 at 3:07pm] Trackbacks USC Violating the Law by Restricting Student Speech: [See UPDATE below for the USC Administration's ultimate decision on the matter, which I think is much better than its initial decisions.] The Daily Trojan reports: Eddie Marquez, assistant director of Norman Topping Student Center, shut down a Gender and Sexuality Week event being held in a designated free-speech zone after receiving several complaints about vulgar language. George Weiss Vando was near Tommy Trojan and in the middle of performing "Man Lady," a performance based on his life experiences, when Marquez interrupted him, asked the organizers to turn the speakers off and pulled the power cords. . . . Marquez said that after hearing complaints from a Department of Public Safety officer, a staff member and the vice president's office, he made the decision to stop the performance. He did not give names of the complainants. Ian Scott, a senior majoring in music education, was walking past Tommy Trojan between classes when he heard Vando speaking. . . . Scott said the language and content of the poetry was "raunchy," but was also artistic and not profane. The term "motherf-----" was used. . . . [Scott is quoted as a witness, not as someone who was complaining. -EV] . . . When asked if vulgar speech was allowed in the free speech zone, Marquez said, "I would say no, just because we don't want to offend anyone . . . We do this to protect the students and make sure we maintain the integrity of the university." A later story reports that a couple of days later students tried to protest the administration's actions by displaying signs that used the word "fuck" and its variations; the administration shut down one such protest, and apparently tried to shut down a second, though the story is a bit ambiguous on what ultimately happened as to the second protest. USC Department of Public Safety officer Bryan Hunt said display of profanity violated California Penal Code 415. "'This is the deal: There is freedom of speech, but there are words that can offend people,' Hunt said." 1. As to California Penal Code 415, USC is 35 years behind the times. In Cohen v. California (1971), the U.S. Supreme Court dealt with the prosecution of someone publicly displaying the word "fuck," under precisely the statute USC is citing, California Penal Code 415. The Court held that such public display of profanity generally may not be criminally punished, unless it's a personalized insult "directed to the person of the hearer" and therefore likely to start a fight — if you say "fuck you" to someone, that might be criminally punishable, but wearing a "Fuck the Draft" jacket (the particular facts involved in Cohen), giving a performance that uses the word "motherfucker," carrying signs containing the word "fuck" as a protest against suppression of profanity, and the like are constitutionally protected. 2. USC is also over 10 years behind the times when it comes to the broader question of whether it may suppress offensive student speech. As a private university, USC is not bound by the First Amendment — but the Leonard Law, enacted by the California Legislatures in 1992, obligates private colleges in California to generally tolerate student speech under the same standards imposed by the First Amendment on the government: (a) No private postsecondary educational institution shall make or enforce any rule subjecting any student to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside the campus or facility of a private postsecondary institution, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article 1 of the California Constitution. . . . I'm not wild about this restriction on private universities' freedom of action; while I think that private universities generally ought not suppress student speech, I think they should have the legal right to do so. But the Leonard Law is the law in California, and it seems to me that USC ought to comply with it. And the Leonard Law quite clearly bars USC from suppressing student speech simply because it's offensive or because includes profanities. UPDATE: I'm pleased to report that the USC administration has ultimately come to the right conclusion: Carey Drayton, assistant chief for the Department of Public Safety, is quoted as saying: "The administrator should have said, 'Yes, it may be offensive to you, but that person has a right to speak,'" Drayton said. "We're going to start a joint training with administrators and DPS so everybody will know what is expected."