On October 29, the Student Press Law Center (SPLC) and FIRE filed an amici curiae (“friends of the court”) brief (PDF) with the United States Court of Appeals for the Ninth Circuit in the case of O’Brien v. Welty. The case concerns Neal O’Brien, a student at California State University-Fresno who was disciplined for asking two professors about their involvement in a campus magazine and for attempting to videotape the encounter. O’Brien was charged with harassment for his zealous inquiries in the professors’ offices, demonstrating yet again just how easily vague and overbroad harassment policies can be used to silence students’ speech.
In May, a U.S. district court judge dismissed (PDF) the case, agreeing with the school’s contention that O’Brien’s “attempt at in-your-face interviews with video camera going, and his failure to immediately desist when requested to do so is nothing short of harassment and at least attempted intimidation.” SPLC’s and FIRE’s brief, written by University of California, Los Angeles School of Law professor (and noted First Amendment scholar) Eugene Volokh with the help of the school’s First Amendment Amicus Brief Clinic, urges the Ninth Circuit to overturn this ruling. As Volokh notes, “‘Harassment’ is a term with many legal meanings. None of those legal meanings covers the behavior at issue in this case.” The brief elaborates on why the university’s policy’s lack of precision is problematic:
A student concerned about the risk of discipline—and with no way of knowing whether his speech would lead to no discipline, mild discipline, or severe discipline—would be inclined to avoid not only information gathering but also the expression of viewpoints that some might find as “unsettling,” “rude,” or productive of “stress.”
In a press release issued on Sunday, SPLC executive director Frank LoMonte further explained that this chilling effect will have a significant effect on student speech and particularly student journalism:
“Already in 2013, the SPLC has dealt with two known cases of college journalists facing disciplinary charges for ‘harassment’ simply because they asked unwelcome questions of public figures on campus,” LoMonte said. “We can’t have college disciplinary bodies passing judgment on whether a journalist’s interviewing style is polite enough. Just the fear of being brought up on bogus charges—with the possible risk of being suspended from college—will be enough to intimidate journalists from doing their best work.”
Check back to The Torch for updates on the case.
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