A ruling from the 9th Circuit Court of Appeals strengthens political speech protections for college students across the west coast.
However, it presents an issue for those students who question university faculty or policies in a way that may be considered “threatening or endangering health or safety.”
Conservative student Neil O’Brien started a Young Americans for Liberty chapter at Fresno State in 2010 and dove into political debates on campus. He was placed on disciplinary probation in September 2011 for violating the Student Conduct Code harassment policy after Victor Torres and Maria Lopes of the Chicano and Latin American Studies department filed complains with campus police, detailed in the court case O’Brien v. Welty.
After reading a poem from the department referring to America as “land of the biggest genocide,” “rapist of the earth,” and “land of glorified killers, the eater of souls,” O’Brien went with his video camera to ask Torres and Lopes questions in their offices. Both refused to answer.
As a result of his probation, O’Brien was not allowed to come within 100 feet of the department’s building or faculty. He couldn’t visit the second floor of the social sciences building unless he had a class or prescheduled appointment, either, and he couldn’t hold any positions in campus organizations.
The court’s opinion found that O’Brien’s behavior could be interpreted as “intimidating” by a reasonable person. However, it also said O’Brien could go forward with his suit for alleged retaliation as a violation of his First and Fourteenth Amendment Rights. The suit had been rejected by a district court in May 2013.
The decision brought some mixed reactions. “Campus dissidents win in court while losing,” Harvard Law Professor Noah Feldman wrote. Part of the opinion “will encourage administrators,” he wrote. However, “Fletcher gave student activists everywhere a major win,” Feldman wrote.
Others are more concerned with how students journalists could be accused of harassment. “Ninth Circuit ruling in California student expression case may be “dangerous for campus speech,” lawyers say,” the Student Press Law Center (SPLC) warned.
University of California-Los Angeles law Professor Eugene Volokh wrote an amicus brief on behalf of SPLC and Foundation for Individual Rights in Education (FIRE). He expressed his concerns with the opinion in “Warning to student journalists: ‘Asking hostile questions and videotaping’ may be treated as ‘threatening or endangering health or safety'” for The Washington Post.
“The opinion does reaffirm student rights to some extent, but I’m afraid it also jeopardizes them to some extent,” Volokh noted.
September arguments in the case can be viewed online.
