In a disappointing setback for college student free speech, the U.S. Court of Appeals for the Ninth Circuit ruled late Friday that Jonathan Lopez does not have standing to challenge the Los Angeles Community College District’s speech code on its face (ADF represents Mr. Lopez).

Readers may recall that Mr. Lopez was punished for giving a speech about his religion in a Los Angeles City College public speaking class in November 2008.  After reading the dictionary definition of marriage as being between a man and a woman, the professor called him a “fascist bastard,” refused to let him finish his speech, and wrote on his evaluation form, “Ask God what your grade is,” and “proselytizing is not allowed in public schools.”  During a subsequent class assignment to present a persuasive speech, Mr. Lopez proposed that he discuss the important of standing up for what you believe.  The professor wrote on Lopez’s paper:  “Remember – you agreed to student code of conduct at LACC.”  The student code requires students to comply with all College policies, including the sexual harassment policy, which punishes any speech deemed subjectively “offensive.”  The harassment policy even told students to self-censor their speech if they thought it might offend someone.

Despite the fact that Lopez must comply with the harassment policy at all times on campus, the Ninth Circuit ruled that he did not have legal standing to pursue his challenge to the facial overbreadth of the policy.  The Ninth Circuit’s ruling creates a circuit split with the Third Circuit, which ruled in McCauley v. University of the Virgin Islands (August 2010) that a college student could challenge the facial validity of his university’s speech code even though the code was never applied to silence his speech and even though the student admitted he did not want to engage in the speech restricted by code.

Notably, the Ninth Circuit went out of its way to point out the danger of the College’s speech code:

Formal and informal enforcement of policies that regulate speech on college campuses raises issues of profound concern. . . . Such policies, well intentioned though they may be, carry significant risks of suppressing speech.  Because some people take umbrage at a great many ideas, very soon no one would be able to say much of anything at all, an outcome that would be anathema for universities, our nation’s “marketplace of ideas.” Rather, the First Amendment protects a speaker’s “freedom to express himself on . . . issues in vigorous, argumentative, unmeasured, and even distinctly unpleasant terms.

(Opinion at 26) (citations omitted).

The Ninth Circuit’s ruling leaves a glaring inconsistency in the law and provides college students in the West with little comfort that they can challenge college policies that chill their speech.  Mr. Lopez’s fight is not over.