FIRE Asks Supreme Court to Review Ninth Circuit Decision Limiting Challenges to Speech Codes

By April 20, 2011

In an amicus curiae brief filed yesterday, FIRE is asking the Supreme Court of the United States to grant review of the United States Court of Appeals for the Ninth Circuit’s 2010 decision in Lopez v. Candaele. FIRE’s brief argues that by holding that Los Angeles City College student Jonathan Lopez did not possess sufficient standing to challenge speech codes maintained by the Los Angeles Community College District (LACCD), despite having been threatened with punishment under those codes by his professor, the Ninth Circuit established a dangerous new barrier to students wishing to vindicate their First Amendment rights in court. FIRE is asking the Supreme Court to reverse this decision so that students can avail themselves of legal avenues to ensure that they continue to enjoy freedom of speech on campus.

Regular Torch readers will likely remember Lopez’s shocking story: As a student in a Speech 101 class, Lopez delivered remarks referencing his religious views as part of a class assignment, including expressing his view of Biblical morality and his conception of the proper definition of marriage. Following the speech, Lopez was called a "fascist bastard" by his professor. When Lopez asked for a grade, the professor recommended that Lopez "Ask God what your grade is." Additionally, Lopez was told by his professor that he had likely violated LACCD’s policies as a result of his speech.

Lopez filed suit against LACCD in February 2009 with the assistance of the Alliance Defense Fund, alleging that his First Amendment rights had been violated and that the speech codes maintained by LACCD were unconstitutional. LACCD’s code prohibited, among other things, "generalized sexist statements" and "actions and behavior that convey insulting, intrusive or degrading attitudes/comments about women or men."

In September of 2009, a federal district court ruled in favor of Lopez, finding that LACCD’s speech code unconstitutionally stifled core political speech. In his district court opinion, Judge George H. King labeled LACCD’s arguments "scattershot" and "disjointed" and pointed out that simply because the speech code contained language similar to that found in workplace policies did not mean that it passed constitutional muster, because "college students possess broader First Amendment rights" than employees in a private workplace. Judge King further observed that LACCD’s speech code 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."

On appeal, however, LACCD found a more receptive set of jurists in the Ninth Circuit. In September of 2010, the Ninth Circuit overruled the district court, holding that the lower court should not have reached the constitutionality of the speech code because Lopez did not enjoy sufficient standing to challenge it. As FIRE’s Erica Goldberg wrote at the time:

The reason for the reversal was not that LACCD’s speech policy is, in fact, constitutional. Instead, the Ninth Circuit held that plaintiff Jonathan Lopez, a student at one of LACCD’s member institutions, does not have the proper standing to challenge LACCD’s speech code. The Ninth Circuit’s erroneous holding conflicts with other courts of appeals and undermines the purpose behind the relaxed standing requirement for First Amendment plaintiffs.

The doctrine of standing refers to the requirement that plaintiffs must suffer a legally-recognized harm before they can seek relief in court. In the First Amendment context, the standing requirement is relaxed considerably so that those whose speech may be chilled by unconstitutional speech restrictions can bring suit on behalf of everyone subject to the restriction. Lower standing requirements in First Amendment cases are critical to ensuring that citizens do not censor themselves out of fear of being punished under an unconstitutional law.

FIRE had written an amicus curiae brief urging the Ninth Circuit to uphold the lower court’s decisionand following the Ninth Circuit’s ruling on standing, FIRE wrote another amicus brief, asking that the case be reheard by the entire Ninth Circuit (i.e., a rehearing en banc), and not just a three-judge panel. FIRE argued that the Ninth Circuit should rehear the case because its ruling conflicted with the Third Circuit’s August 2010 decision in McCauley v. University of the Virgin Islands, in which the Third Circuit ruled that a student enjoyed standing to challenge sections of a university speech code despite the fact that he had not been punished under those sections. Because First Amendment claims enjoy relaxed standing requirements, the Third Circuit ruled, the student’s claims must be allowed to proceed.

In response to Lopez’s request for a rehearing, the Ninth Circuit amended its opinion in a December 2010 ruling. As Erica wrote in December:

In response to Lopez’s motion for rehearing, the Ninth Circuit last week amended its opinion to distinguish McCauley. According to the Ninth Circuit, because McCauley was actually disciplined under one portion of UVI’s speech code, he did have standing to challenge other provisions of the speech code under which he was not disciplined. Lopez, in contrast, was never actually disciplined under any provision of LACCD’s speech code, so the Ninth Circuit believed that he did not have standing-even though he alleged all the reasons why he has a legitimate fear of being punished under the code in the future.

This is a problematic result, as Erica pointed out:

The Ninth Circuit’s distinction of McCauley fails to recognize the Third Circuit’s emphasis on how relaxed the standing requirement should be for First Amendment plaintiffs. The Third Circuit would have likely held that Lopez did suffer a concrete injury, after the incident with his professor and in light of his allegations that the speech code prevented him from sharing thoughts about his religion with other students. The Third Circuit would not have required Lopez to allege more. In fact, the Third Circuit specifically remarked that, in the standing context, McCauley should not be required to provide "lawyerly responses" because standing should be freely granted in First Amendment challenges.

Unfortunately for Lopez, he resides in California instead of the Virgin Islands. Hopefully, the other federal courts of appeals will follow the Third Circuit ruling in McCauley and grant students challenging speech codes the wide latitude they deserve to have their claims heard in court.

In seeking review by the Supreme Court, Lopez is asking the Court to make sure that students wishing to bring First Amendment claims be allowed to do so in the same way that all citizens making First Amendment claims mayincluding those students in different circuits.

FIRE’s brief argues that the Court should review the Ninth Circuit’s ruling for several reasons: (1) Lopez has very legitimate reasons to fear punishment for his speech; (2) the Ninth Circuit’s opinion ignored the traditionally relaxed standing requirements applicable to First Amendment plaintiffs; (3) allowing the Ninth Circuit’s decision to stand will make it even more difficult to challenge unconstitutional speech codes on campus; (4) the Ninth Circuit’s decision conflicts with rulings from other circuits; and (5) students are more likely to self-censor if they cannot challenge speech codes without evidence of direct punishment.

Here’s the Summary of Argument from our brief:

Certiorari is warranted in this case because the Ninth Circuit’s decision will render students essentially unable to challenge unconstitutional speech codes without first risking punishment. In ruling that student Jonathan Lopez did not possess standing to challenge the Los Angeles Community College District’s ("LACCD’s") sexual harassment policy, properly found unconstitutional by the district court, the Ninth Circuit discounted Lopez’s credible fear of punishment for engaging in protected speech and disregarded the purpose of relaxed standing requirements for First Amendment plaintiffs. While characterizing the case as "disturbing," the Ninth Circuit nevertheless ignored the fact that Lopez was warned that his speech might violate LACCD policy, and that other students reported him as having done so.

Lopez’s treatment, and subsequent fear of future punishment, reflect the pervasive threat to free expression on campus today. Despite two decades of decisions striking down unconstitutional speech codes, FIRE’s research demonstrates that a substantial majority of universities still maintain harassment policies that prohibit protected speech. Administrators often enforce these policies using precisely the type of "strained" reading that the Ninth Circuit believed was required to apply LACCD’s harassment policy toward Lopez’s speech. If allowed to stand, the Ninth Circuit’s holding will improperly insulate these unconstitutional speech restrictions from facial challenge by erecting unreasonably high barriers to student suits.

This result will produce a chilling effect on campus, as students left without meaningful access to the courts will have little choice but to self-censor. This result is particularly harmful on a public college campus, a traditional locus for free expression that this Court has long identified as crucially important to our democracy. University students already face significant legal and practical obstacles to bringing suit; the Ninth Circuit’s decision exacerbates the problem for students whose speech is chilled by unconstitutional speech codes.

Other circuits, following this Court’s dictates, have permitted students to challenge university speech policies with a showing of credible fear of enforcement, which Lopez has made. The Ninth Circuit’s decision now conflicts with those of its fellow circuits, creating confusion regarding the appropriate showing that must be made before students (and potentially citizens at large) may bring First Amendment challenges. Because the Ninth Circuit’s holding leaves students unable to fully exercise or defend their First Amendment rights, the Court should grant the petition for writ of certiorari and reverse the Ninth Circuit’s decision.

I urge you to read our brief in this important case in full.

FIRE’s brief was authored and filed on FIRE’s behalf by Stephen B. Kinnaird, Raymond W. Bertrand, Neil J. Schumacher, and Rebecca L. McGuire of Paul, Hastings, Janofsky & Walker LLP. We are very grateful for their assistance in seeking to remedy the Ninth Circuit’s misguided ruling.

Of course, we’ll keep you posted here on The Torch as to further developments with Lopez’s case.

Cases: Lopez v. Candaele