Another Year, Another Speech Code Falls in Court: ‘Lopez v. Candaele,’ 2009′s Big Win, and What it Means Going Forward

By on December 30, 2009

In the past year, FIRE celebrated a number of public victories in our continued fight to defend individual liberties on college campuses. These victories ranged from policy revisions by some institutions to reversals of university wrongdoing in individual cases involving students and faculty members. On the legal front, perhaps no victory was more crucial to FIRE’s mission and thus more worthy of celebration than a California federal court’s decision in Lopez v. Candaele, No. CV 09-0995-GHK (C.D. Cal. Sept. 16, 2009).

In Lopez, a federal district court struck down an overbroad harassment policy maintained by the Los Angeles Community College District (LACCD) and became the most recent court to invalidate a university speech code facing a constitutional challenge. By issuing its decision, the Lopez court joined two decades of unbroken case law holding that speech codes are legally untenable on public university campuses because they deny students their basic First Amendment rights.

At issue in Lopez was a sexual harassment policy that prohibited, among other things, "[d]isparaging sexual remarks about your gender[, r]epeated sexist jokes, dirty jokes or sexual slurs about your clothing, body, or sexual activities[, and d]isplay of sexually suggestive objects, pictures, cartoons, posters, screen savers…" The same policy provided further purported examples of sexual harassment, including:

  • Sexual Harassment based on your gender: This is generalized sexist statements, actions and behavior that convey insulting, intrusive or degrading attitudes/comments about women or men. Examples include insulting remarks; intrusive comments about physical appearance; offensive written material such as graffiti, calendars, cartoons, emails; obscene gestures or  sounds; sexual slurs, obscene jokes, humor about sex.

While much of the expression listed in this policy is undoubtedly disgraceful, the policy also prohibited a substantial amount of protected speech. For example, odious as they may be to many, "[d]isparaging sexual remarks" about another’s gender and "generalized sexist statements" are protected under the First Amendment, and in truth, much expression that could be construed to fall under those labels conveys social and political viewpoints. Further, to state that such vague and amorphous terms as "insulting remarks," "offensive written material," and "humor about sex" are examples of sexual harassment provides students with little to no notice of what speech is actually prohibited by the policy and what speech is allowed at LACCD. As such, the policy badly misinformed students of their free speech rights, which all too often creates a chilling effect on campus expression as students self-impose limitations on the dialogue that is supposed to take place within a true "marketplace of ideas."

Fortunately, the Lopez court recognized these problems in its opinion, which upheld an injunction the court had initially issued in July enjoining enforcement of the policy. The court held that the LACCD policy was "undeniably aimed at the content of the expression by prohibiting speech involving certain content, i.e., sexist comments, insulting remarks or intrusive comments about one’s gender." Moreover, the court stated, "Even if speech has a negative effect on or is otherwise offensive to the listener, that in and of itself is insufficient to justify its prohibition." After all, as the court recognized, freedom of speech under the First Amendment "affords protection to ‘verbal tumult, discord, and even offensive utterance….’" Because it prohibited speech in contravention of these principles and attempted to limit campus dialogue to only the most innocuous and tame speech, the LACCD policy was held to be constitutionally overbroad on its face.

Quite properly, the court’s analysis relied heavily on the Third Circuit’s decision in DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008), which prior to Lopez was the most recent speech code decision. DeJohn also involved a facial challenge to an unconstitutional sexual harassment policy, and the Third Circuit’s sterling analysis in that case should serve as a template for other courts deciding constitutional challenges to speech codes to follow. Though LACCD argued against applying the DeJohn precedent on the grounds that it wasn’t a properly reasoned opinion and that it was only one decision, the court responded unequivocally that the DeJohn decision was "well reasoned" and that LACCD’s "scattershot and disjointed arguments do not defeat the reasoning of DeJohn." Lopez therefore provides hope that courts in future speech code challenges will follow the DeJohn framework in analyzing university policies and will give students’ speech rights the same level of protection as the Third Circuit.

So what is the aftermath of Lopez, and how will the legal battle over speech codes proceed from here? In terms of the immediate case, LACCD has appealed the district court’s ruling to the Ninth Circuit, which will be hearing oral arguments early in 2010. FIRE will be submitting an amicus curiae brief to the Ninth Circuit arguing that it should uphold the lower court’s ruling, and we will have updates on The Torch as the case moves forward.

As for the larger picture, it is tough to tell. On the one hand, in spite of the uniform defeat of speech codes in cases stretching over the past two decades, the vast majority of universities across the country, both public and private, continue to maintain speech codes that violate First Amendment principles. As our Speech Code of the Month feature continually reminds us, some of these policies are laughably absurd. Thus, it seems, too many universities are either not "getting" the lesson from the case law or choosing to ignore the law on speech codes. On the other hand, our most recent annual speech code report, Spotlight on Speech Codes 2010: The State of Free Speech on Our Nation’s Campuses, found that for the second year in a row, the percentage of surveyed public universities maintaining speech codes dropped, from 77 percent to 71 percent (the previous year, the figure dropped from 79 percent to 77 percent). This is a significant change, and perhaps it demonstrates that some institutions are beginning to take their obligations under the First Amendment more seriously.

While the progress being made is encouraging, there is much more work to be doneand FIRE will be at the forefront of it. More public advocacy of the sort engaged in by FIRE will be needed to convince colleges and universities to dismantle their speech codes. Additional legal challenges will have to be brought in court in order to hammer home the message that universities cannot get away with maintaining speech codes. And further outreach and education geared towards students and administrators will be necessary as well. With all of these things and more in mind, I look forward to an exciting 2010, as we hope to build on the momentum created in the past year.