SAN FRANCISCO, October 12, 2010—The ability to fight unconstitutional speech policies is in jeopardy in nine states because of a decision by the United States Court of Appeals for the Ninth Circuit. Today, the Foundation for Individual Rights in Education (FIRE) filed a friend-of-the-court brief urging the Ninth Circuit to rehear Lopez v. Candaele. Although a federal district court had found the Los Angeles Community College District’s (LACCD’s) speech code unconstitutional in 2009, last month the Ninth Circuit overturned that decision by ruling that student Jonathan Lopez had not been sufficiently harmed by LACCD’s speech code to bring suit. FIRE’s brief argues that the Ninth Circuit has erected an impossibly high barrier to students challenging unconstitutional policies. It also points out that the Ninth Circuit’s decision differs sharply with opinions issued by the Third and Sixth Circuits in similar cases.
“If allowed to stand, the Ninth Circuit’s ruling will practically guarantee that campus speech codes will become a permanent fixture on campuses in nine states,” FIRE President Greg Lukianoff said. “Laws that violate the First Amendment chill speech and and teach students that they have fewer rights than they really have. The Ninth Circuit has given colleges a handy tool to impose codes that violate the First Amendment and will chill expression long into the future.”
Lopez’s lawsuit against LACCD was filed in the United States District Court for the Central District of California in February 2009 by attorneys from the Alliance Defense Fund (ADF). Prior to filing suit, Lopez had been berated in his Speech 101 class by his professor, who disagreed with Lopez’s reference to his religious views and experiences. The professor refused to grade Lopez’s classwork, telling him to “Ask God what your grade is.” Lopez’s ordeal received national attention.
In July 2009, United States District Judge George H. King granted Lopez a preliminary injunction barring LACCD from enforcing its sexual harassment policy, declaring that the policy violated the First Amendment rights of Lopez and his fellow students by “prohibit[ing] a substantial amount of protected free speech.” LACCD’s code prohibits, among other things, “generalized sexist statements” and “actions and behavior that convey insulting, intrusive or degrading attitudes/comments about women or men.” In September 2009, Judge King denied LACCD’s motion for reconsideration of his earlier ruling. Judge King observed that LACCD “ha[d] shown no valid reason” to overturn the injunction, and he characterized LACCD’s arguments as “scattershot and disjointed.”
FIRE previously filed a brief in January asking the Ninth Circuit to uphold the lower court’s decision on appeal. However, the Ninth Circuit ruled in September that Lopez did not possess “standing” to challenge LACCD’s speech code, focusing on the fact that LACCD did not enforce its policy against Lopez. The court decided that Lopez’s treatment by his professor did not count as a harm sufficient to justify his challenge of LACCD speech policies. To reach this result, the court discounted the facts that Lopez’s professor invoked LACCD’s speech policies in reprimanding him for his protected speech and that Lopez’s classmates sought to have him punished under the speech code. FIRE’s brief, filed by FIRE Legal Network attorney Christopher Arledge of One LLP, points out that Lopez’s fear of punishment under the code is credible and reasonable, given the strong reaction his speech had already provoked and the abuse of speech codes nationwide.
In recognition of the importance of free speech, courts have long held that plaintiffs bringing First Amendment claims are subject to relaxed standing requirements so that unconstitutional restrictions on speech are not allowed to chill expression. FIRE’s brief demonstrates that the Ninth Circuit’s ruling is a sharp departure from the relaxed standing requirement employed by the Third Circuit in the 2010 case McCauley v. University of the Virgin Islands and the Sixth Circuit in the 1995 case Dambrot v. Central Michigan University. In both McCauley and Dambrot, students challenging unconstitutional speech restrictions were granted access to judicial remedies after demonstrating that they were subject to the policies.
“Depriving students of the ability to challenge speech codes in court is a surefire way to guarantee that the chilling effect on speech currently gripping so many of our campuses gets worse, not better,” said Will Creeley, FIRE’s Director of Legal and Public Advocacy. “The Ninth Circuit has important reasons to rehear Jonathan Lopez’s case and recognize that vindicating First Amendment rights is of crucial importance at public colleges and universities.”
FIRE is a nonprofit educational foundation that unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals from across the political and ideological spectrum on behalf of individual rights, due process, freedom of expression, academic freedom, and rights of conscience at our nation’s colleges and universities. FIRE’s efforts to preserve liberty on campuses across America can be viewed at thefire.org.
Will Creeley, Director of Legal and Public Advocacy, FIRE: 215-717-3473; email@example.com