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A Devastating Blow to Campus Censors

Earlier this month, U.S. Magistrate Judge Wayne Brazil partially granted plaintiffs’ motion for a preliminary injunction in the San Francisco State University (SFSU) speech codes litigation. Yesterday, Judge Brazil issued his written opinion on the motion, and in so doing struck a devastating blow against speech codes at universities in California and hopefully—to the extent that his wise words are heeded by judges in other jurisdictions—across the country.

Judge Brazil’s opinion proves that he truly is—as he said from the bench on October 31—a “friend of the First Amendment.” In discussing the general importance of the First Amendment, he wrote (in what is sure to become a favorite FIRE quote) that:

It is important to emphasize here that it is controversial expression that it is the First Amendment’s highest duty to protect. By political definition, popular views need no protection. It is unpopular notions that are in the greatest peril — and it was primarily to protect their expression that the First Amendment was adopted. The Framers of our Constitution believed that a democracy could remain healthy over time only if its citizens felt free both to invent new ideas and to vent thoughts and feelings that were thoroughly out of fashion. Fashion, it was understood, is an agent of repression — and repression is an agent [of] democracy’s death.

Judge Brazil’s opinion is notable for many reasons. As an initial matter, he lays waste to the increasingly popular (and, in FIRE’s opinion, absurd) claim that colleges and universities may restrict free speech to the same extent as elementary and high schools:

For purposes of First Amendment analysis there are very important differences between primary and secondary schools, on the one hand, and colleges and universities, on the other. As the courts often have acknowledged, the state does not require higher education and has much less interest in regulating it, the students in colleges and universities are not children, but emancipated (by law) adults, and, critically, the mission of institutions of higher learning is quite different from the mission of primary and secondary schools. As courts have emphasized, “the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools [of higher learning].” Healy v. James, 408 U.S. 169, 180 (1972) (internal citation and quotation omitted). As our highest court has said, “[t]he college classroom with its surrounding environs is peculiarly the ‘marketplace of ideas. . . .’” Id. Supreme Court precedents “leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large.” Id. (internal quotations omitted). Indeed, the core principles of the First Amendment “acquire a special significance in the university setting, where the free and unfettered interplay of competing views is essential to the institution’s educational mission.” Doe v. Univ. of Mich., 721 F. Supp. at 863 (citing Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967)).

If clarifying and reinforcing the obvious legal distinction between high school students and their college counterparts was the sole effect of Judge Brazil’s opinion, FIRE would be thrilled—because as most Torch readers will know, FIRE has been increasingly dismayed by the worrying trend towards conflating the two. But Judge Brazil doesn’t stop there. In addressing the constitutionality of SFSU’s policy requiring students to be “civil” to one another, Judge Brazil makes numerous important pronouncements about the purpose of the First Amendment and the potential danger to free speech of provisions that may, to many, seem relatively innocuous. As an initial matter, addressing the question of whether SFSU’s “civility” requirement is overbroad, he notes that “the word ‘civil’ is broad and elastic — and its reach is unpredictably variable in the eyes of different speakers.” He then discusses why a “civility” requirement is likely to have a profound chilling effect on constitutionally protected expression:

There also is an emotional dimension to the effectiveness of communication. Speakers, especially speakers on significant or controversial issues, often want their audience to understand how passionately they feel about their subject or message. For many speakers on religious or political subjects, for example, having their audience perceive and understand their passion, their intensity of feeling, can be the single most important aspect of an expressive act. And for many people, what matters most about a particular instance of communication is whether it inspires emotions in the audience, i.e., whether it has the emotional power to move the audience to action or to a different level of interest in or commitment to an idea or cause. For such people, the effectiveness of communication is measured by its emotional impact, by the intensity of the resonance it creates.

How is all this relevant to our review of the University’s civility requirement? Civility connotes calmness, control, and deference or responsiveness to the circumstances, ideas, and feelings of others. […] Given these common understandings, a regulation that mandates civility easily could be understood as permitting only those forms of interaction that produce as little friction as possible, forms that are thoroughly lubricated by restraint, moderation, respect, social convention, and reason. The First Amendment difficulty with this kind of mandate should be obvious: the requirement “to be civil to one another” and the directive to eschew behaviors that are not consistent with “good citizenship” reasonably can be understood as prohibiting the kind of communication that it is necessary to use to convey the full emotional power with which a speaker embraces her ideas or the intensity and richness of the feelings that attach her to her cause. Similarly, mandating civility could deprive speakers of the tools they most need to connect emotionally with their audience, to move their audience to share their passion.

In sum, there is a substantial risk that the civility requirement will inhibit or deter use of the forms and means of communication that, to many speakers in circumstances of the greatest First Amendment sensitivity, will be the most valued and the most effective.

Judge Brazil also decisively rejects the university’s argument that its policies are saved from unconstitutionality by a brief provision at the end of its Code noting that “[n]othing in this Code may conflict with Education Code Section 66301 that prohibits disciplinary action against students based on behavior protected by the First Amendment.” Judge Brazil’s words here are highly significant given that this “savings clause” argument is one frequently raised both by universities and by critics of FIRE’s work:

We must assess regulatory language in the real world context in which the persons being regulated will encounter that language. The persons being regulated here are college students, not scholars of First Amendment law. What does a college student see when he or she encounters section 41301? That student sees a long list of mandates and proscriptions, most of which seem to describe, in terms relatively familiar to the student and with a fair amount of particularity, various forms of “Unacceptable Student Behaviors.” After seeing all these prohibitions, a student who is particularly thorough and patient also could read that nothing in the Code “may conflict” with a cited state statute that prohibits universities from violating students’ First Amendment rights.

What path is a college student who faces this regulatory situation most likely to follow? Is she more likely to feel that she should heed the relatively specific proscriptions of the Code that are set forth in words she thinks she understands, or is she more likely to feel that she can engage in conduct that violates those proscriptions (and thus is risky and likely controversial) in the hope that the powers-that-be will agree, after the fact, that the course of action she chose was protected by the First Amendment? To us, this question is self-answering — and the answer condemns to valuelessness the allegedly ‘saving’ provision in the last paragraph of the Code that prohibits violations of the First Amendment.

With these principles in mind, Judge Brazil enjoined the university from enforcing both the civility requirement and a related provision allowing student organizations to be punished collectively if any group members engage in behavior “inconsistent with SF State goals, principles, and policies.” Judge Brazil did not enjoin the university from enforcing its prohibition on “[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.” However, he emphasized that the provision must be narrowly construed to only prohibit that “intimidation” or “harassment” which actually endangers someone’s health or safety, and explicitly directed the university that the policy “may be invoked only as it has been construed in this opinion.” This limiting construction prohibits the university from interpreting that provision broadly to punish constitutionally protected speech (since the vast majority of speech that actually endangers someone’s health or safety is not constitutionally protected).

With this opinion, Judge Brazil joins the ranks of judges whom FIRE would consider heroes of the First Amendment. But this discussion is not complete without mention of some other heroes of the First Amendment: Leigh Wolf, Trent Downes, and the rest of the SFSU College Republicans, who stood firm on principle and insisted that their university be held accountable for violating their First Amendment rights. They had the guts to stand up to the powers-that-be, even when it wasn’t popular or easy to do so, and students across California are freer as a result of their actions. For that they deserve the utmost praise and respect.

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