An Appropriately Narrow Conception of Intimidation and Harassment

November 26, 2007

In a significant victory for speech rights on campus, U.S. Magistrate Judge Wayne Brazil ruled earlier this month that the plaintiffs in the San Francisco State University (SFSU) speech codes litigation were entitled to a preliminary injunction with respect to the University’s requirement that students be “civil” toward one another and its provision allowing student groups and organizations to be punished collectively if any member engages in conduct “inconsistent with SF State goals, principles, and policies.” Sam has already analyzed Judge Brazil’s treatment of these issues, as well as his important discussion of the clear differences between the high school and college settings. I turn now to his analysis of the issues of intimidation and harassment.
The plaintiffs had challenged, in addition to the provisions mentioned above, a University rule prohibiting “[c]onduct that threatens or endangers the health or safety of any person within or related to the University community, including physical abuse, threats, intimidation, harassment, or sexual misconduct.” Specifically, they alleged that the inclusion of the terms “intimidation” and “harassment” rendered the provision facially overbroad by encompassing constitutionally protected speech. In declining to enjoin the enforcement of this provision, Judge Brazil emphasized, quite significantly, that:

[T]he structure of the challenged provision, viewed as a whole, suggests that it was not intended to proscribe “intimidation” or “harassment” in whatever form “intimidation” or “harassment” might take, but only the sub-category of intimidation or harassment that “threatens or endangers the health or safety of any person.”

In other words, he denied the injunction under the specific understanding that the rule in question would not be applied against a student who merely engages in expressive behavior with no intent to threaten or endanger the health or safety of another person. Such an understanding closely tracks the Supreme Court’s pronouncement in the 2003 case of Virginia v. Black, 538 U.S. 343 (2003) that intimidation, in the constitutionally proscribable sense, means a “type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.” This is, on its face, a fairly rigorous and narrow standard, and appropriately so.
To hold otherwise would be to invite charges of intimidation and harassment to be levied against a speaker any time someone subjectively feels offended or annoyed. As Judge Brazil recognized in his opinion, “[s]tanding alone, the terms ‘intimidation’ and ‘harassment’ are not clearly self-limiting and could be understood, reasonably, to proscribe at least some expressive activity that would be protected by the First Amendment.” A university policy prohibiting intimidation or harassment, standing alone, would certainly encompass a significant amount of protected speech, as has been borne out in numerous FIRE cases.
In the ongoing saga at Valdosta State University, for instance, a student has astonishingly been branded as posing a threat to the University president’s safety and to the safety of the campus as a whole merely for expressing his opposition to a proposed campus parking structure by creating a collage of pictures on the popular website Despite the absence of anything approaching a true threat, the student has been expelled for engaging in clearly protected expression. In another current case, a student at Hamline University has been suspended for sending “threatening” emails, when in fact he simply advocated for the right to carry concealed weapons and opined that the Virginia Tech massacre might have been prevented if students had been allowed to carry concealed weapons on campus. To argue that expressing these opinions in an email is the same as intimidating or harassing someone is the height of absurdity.
These and other similar cases counsel against giving university administrators unbridled discretion to define and apply terms such as intimidation and harassment as they see fit. Instead, Judge Brazil has judiciously held SFSU to the narrow language of its rule, adding as extra protection the caveat that the provision “may be invoked only as it has been construed in this opinion.” As a result, “it seems likely that most of the conduct that this regulation prohibits either would have no expressive component or that any such component would be so overshadowed by the risk that the conduct would cause serious harm that First Amendment concerns would have to give way.” Even in denying this aspect of the plaintiffs’ request for relief, therefore, Judge Brazil has demonstrated a clear commitment to the values of the First Amendment and to the need to prevent infringements upon protected forms of speech. One can only hope that his ruling sets a valuable precedent to be followed by other courts when encountering these same issues.

Schools:  San Francisco State University