Last week, a panel of the United States Court of Appeals for the Ninth Circuit Court reversed a federal district court’s ruling that the Los Angeles Community College District’s (LACCD’s) speech code violates the First Amendment. 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.
This is why the trial court ruled in Lopez v. Candaele that Lopez, who had been berated by a professor after delivering a speech in a persuasive speaking class, did have standing to challenge LACCD’s speech code. As we have described in detail here on The Torch and in the amicus brief FIRE submitted to the Ninth Circuit, Lopez was called a "fascist bastard" by his professor for sharing his religious beliefs about same-sex marriage, and the professor warned Lopez about LACCD’s rules regarding offensive speech.
As the trial court noted, "a plaintiff has standing to challenge a law if it chills his First Amendment rights . . . . However, the plaintiff must show that the law at least arguably reaches speech in which he wishes to engage." The trial court found that Lopez had a credible fear of being punished under LACCD’s sexual harassment policy, which prohibited, among other things, "sexist statements . . . or degrading attitudes/comments about women or men." LACCD’s unconstitutional speech code interfered with Lopez’s ability to discuss gender and religion, topics that are protected by the First Amendment.
The Ninth Circuit disagreed. It focused on the fact that LACCD ultimately did not enforce its policy against Lopez, and found credible LACCD’s claims that it does not interpret its policy to apply to speech that Lopez wishes to express. This regrettable holding ignores the actual language of LACCD’s speech code and allows the school to maintain an unconstitutional speech policy that chills students’ speech, so long as the policy remains an unenforced threat. The Ninth Circuit’s decision also dismisses the fact that Lopez was reprimanded by a professor who invoked LACCD’s speech policies, and that Lopez was informed by the dean of academic affairs that several of his classmates were "deeply offended" by his speech.
The Ninth Circuit’s decision also conflicts with two federal appellate court decisions in the Third Circuit — specifically, DeJohn v. Temple University, which overturned a speech policy similar to LACCD’s, and the Third Circuit’s recent decision in McCauley v. University of the Virgin Islands. In McCauley, the Third Circuit held that a student had standing to challenge several speech restrictions at the University of the Virgin Islands despite the fact that the university had never applied these speech provisions against him. The Third Circuit took seriously its obligation to relax the standing requirements for First Amendment plaintiffs.
Despite McCauley’s trial testimony that he suffered no deprivations from Paragraphs B, H, and R, we conclude that he has standing to challenge those paragraphs. . . . Ideally, McCauley would have responded to questions at trial regarding injury by stating that his speech and the speech of other students was chilled by the Code. Yet his failure to provide this lawyerly response is not fatal to his claims, given that we should "freely grant standing to raise overbreadth claims[.]" Paragraphs B, H, and R, all have the potential to chill protected speech. Paragraph B prohibits, inter alia, lewd or indecent conduct. Paragraph H prohibits conduct which causes emotional distress, including "conduct . . . which compels the victim to seek assistance in dealing with the distress." Paragraph R prohibits misbehavior at sports events, concerts, and social-cultural events, including the display of unauthorized or offensive signs. As such, under the "relaxed" rules of standing for First Amendment overbreadth claims, McCauley has standing to assert facial challenges to those paragraphs. [Citations omitted.]
As reported this morning in Inside Higher Ed, we at FIRE are deeply disappointed with the Ninth Circuit’s disregard of both the lowered standing threshold for First Amendment plaintiffs and of plainly relevant precedent from other courts of appeals. A relaxed standing requirement in First Amendment cases is so important because, as the Supreme Court recognized, a "statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression." Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973). The Ninth Circuit’s misguided decision affects all First Amendment plaintiffs, across the political spectrum, and has a corrosive effect on First Amendment rights. If plaintiffs cannot sue to challenge unconstitutional laws, these laws will continue to unconstitutionally stifle protected speech on our college campuses and beyond.
We will follow Jonathan Lopez’s next steps here on The Torch as he considers pursuing this litigation further, either by asking for review from an en banc panel of a larger segment of the Ninth Circuit, or by petitioning for an appeal to the Supreme Court.