The Volokh Conspiracy - 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.

	[Eugene Volokh, August 4, 2008 at 5:41pm] Trackbacks 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.