Thursday, the United States Court of Appeals for the Ninth Circuit issued an important college free speech decision in a case that pits a college harassment policy against a professor’s racially insensitive comments.  (H/t to Professor Volokh who has thorough coverage here, here, here, and here.)   

Rodriguez v. Maricopa County Community College involves a professor who sent three racially charged emails on a college-wide listserv.  A group of employees who were offended by the emails sued the college under Equal Protection and Title VII theories, claiming it failed to take adquate steps to protect them from the professor’s harassment.  In the plaintiffs’ eyes, the college should have used its anti-harassment policy to silence the professor’s speech and impose punishment on him.  The college administration condemned the emails, but did not punish the professor, saying disciplinary action against him “could seriously undermine [the college's] ability to promote true academic freedom.”  The trial court found that the college officials’ actions did not merit qualified immunity, which means that if the plaintiff employees prevailed they could collect money damages from the officials’ pocketbooks.

The Ninth Circuit reversed and found that the officials deserved qualified immunity because the Equal Protection clause of the Fourteenth Amendment did not give the employees a right to be free from offensive speech on a college campus.  In analyzing the claims, the Ninth Circuit flatly rejected the plaintiffs’ argument that the college may silence the professor based on the offensiveness of his speech. 

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. [. . .]  “There is no categorical ‘harassment exception’ to the First Amendment’s free speech clause.” [. . .]

Indeed, precisely because Kehowski’s ideas fall outside the mainstream, his words sparked intense debate:  Colleagues emailed responses, and Kehowski replied; some voiced opinions in the editorial pages of the local paper; the administration issued a press release; and, in the best tradition of higher learning, students protested.  The Constitution embraces such a heated exchange of views, even (perhaps especially) when they concern sensitive topics like race, where the risk of conflict and insult is high. [. . .]  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. “Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.” [. . .] We have therefore said that “[t]he desire to maintain a sedate academic environment . . . [does not] justify limitations on a teacher’s freedom to express himself on political issues in vigorous, argumentative, unmeasured, and even distinctly unpleasant terms.”

That passage would only be better if accompanied by the final movement of Beethoven’s 9th Symphony (“Ode to Joy”).  Yet it gets better.  In responding to the plaintiffs’ argument that the college should have shut down the listserv as a means of communication: 

[L]isteners who are offended by the ideas being discussed certainly are not entitled to shut down an entire forum simply because they object to what some people are saying. Such a rule would contravene the First Amendment’s hostility towards laws that “confer broad powers of censorship, in the form of a ‘heckler’s veto,’ upon any opponent of” certain points of view. [. . .]  Because some people take umbrage at a great many ideas, very soon no one would be able to say much of anything at all.

The court concluded with this: 

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.

If these passages are any indication, the Rodriguez ruling may bode well for Jonathan Lopez, whose First Amendment challenge to the Los Angeles Community College District harassment policy is pending now before the Ninth Circuit (ADF represents Mr. Lopez).

In 1972 comedian George Carlin unveiled a profane comedy routine in which he uttered seven profanities prohibited on the public airwaves by the Federal Communications Commission. His “Seven Things You Can’t Say on Television” is often revered by self-styled civil libertarians on the left – even though the FCC regulations he was criticizing were upheld in FCC v. Pacifica Foundation in 1978. Yet Carlin’s performance is iconic for some because of his stance against “the man.”

Today’s “man” isn’t the FCC, it’s the tax-funded university’s “Diversity officer” or even its Dean of student affairs. But sadly the state of free speech on campus is no laughing matter, and the ACLU and its allies seem to have little to say about the egregious situation for free speech on campus. Public universities across the country routinely employ “harassment,” “bias incident,” and even computer use policies that prohibit not just a few choice words but entire subjects of legitimate conversation simply because someone – including eavesdroppers – might take offense or even find the conversation “annoying.” These policies, often collectively referred to as “speech codes,” stifle free speech either by their enforcement or by simply threatening to subject students to punishment if a listener reports them (as they are usually encouraged to do). The United States Court of Appeals for the Third Circuit has twice dealt with speech codes on high school and university campuses in recent years. Most recently ADF scored a significant victory for student speech rights in DeJohn v. Temple University, 537 F.3d 301 (3rd Cir. 2008) where the Third Circuit held that the school’s sexual harassment policy was overbroad and could be used to punish core protected speech.
With two years distance from the DeJohn decision, however, public universities across New Jersey, Delaware, and Pennsylvania continue to hold on to egregiously unconstitutional speech codes that use much of the same language rejected in Saxe and DeJohn and inhibit expression and skew debate on campus by placing students at risk of substantial punishment if someone claims offense at what they say.

At Rutgers University, students are encouraged to report “bias incidents” by fellow students, including any “verbal, written … or psychological” act that “maligns” a person on the basis of a number of bases including religion, sexual orientation, and others. Such acts warrant “intervention” where they lose a student to “lose confidence in their ability to participate in the educational mission of the university.” So a conversation or an email about religious differences that the listener or recipient thinks “maligns” their religion warrants punishment. And if all that weren’t enough, the department responsible for deciding whether a student’s email or conversation is a punishable “bias incident” is the “Center for Social Justice Education and LGBT Communities.” The exact role of any kangaroos in the proceedings is unclear.

Similarly, at Cheyney University in Pennsylvania students can be punished for “spoken words” or any “production, display or circulation of written words, pictures or other materials” that offend a person on the basis of a number of bases from gender or “religious belief.” So a student circulating an image of Mohammed that is viewed by a Muslim student or stating their belief that faith in Christ is the only means of salvation is potentially subject to punishment if someone is offended by their speech. Delaware State University prohibits “offensive utterances” and Indiana University of Pennsylvania and Westmoreland County Community College in Pennsylvania prohibit certain speech that the school believes would create an “offensive … environment.”

And it’s not just these 5 schools that are receiving letters today that are the problem. Research by ADF allied attorneys shows a host of schools in the Third Circuit that retain egregiously unconstitutional speech codes despite clear precedent in the Third Circuit. For instance, Lincoln University in Pennsylvania prohibits students from engaging in “disrespectful, absurd and rude” behavior. I believe this is the first policy I’ve ever seen that violates itself. Isn’t engaging in “absurd” behavior a substantial part of university life? On the college campus it’s not just seven profane words that are prohibited, but a whole host of ideas and topics of conversation that are verboten.

Is this any way to run a marketplace of ideas? There is no more excuse for universities in these states to claim that they were unaware of the law. It is clearly established, they are in clear violation, and it is time for them to respect the rights of their students and the authority of binding federal courts. That’s why we are today launching an initiative to urge schools in the Third Circuit to eliminate their unconstitutional speech codes. The five schools mentioned above will receive today a letter pointing out the serious flaws in the university’s speech codes and offering to assist the universities in bringing their policies into compliance with the First Amendment. It is our sincere hope that each school will choose to revise its policies voluntarily and ensure that its students’ rights are protected. But if they do not, we stand ready to take the next step and protect these students’ rights in federal court. And if you’re a student who would also like to address the unconstitutional speech codes on your campus, please let us know. This is the beginning of this effort, not the end. Stay tuned.