Student Suspended for Saying Homosexuality is Wrong

September 26, 2011

A Texas teenager expressed his opinion that, since he is a “christian,” he believes that homosexuality is wrong. Makes sense. This magic space zombie jew created heaven and earth, but the thing that really makes him mad is if two guys’ dicks touch.

His teacher wrote him up for expressing his opinion, and the school suspended him.

I’m all for giving the kid a smackdown, but like his speech or not, it was his First Amendment right to express his opinion. As long as he wasn’t being disruptive in class (and nothing in the story indicates that he was), then it seems pretty clear that the school stepped over the line. There is a report that the kid often brings up the issue, any chance he gets, in an effort to harass his teacher (who he seems to think is gay). But, even then, suspending him for frequently expressing his opinion is troubling.

Unfortunately, the Dallas Voice, a LGBT website has jumped in on the side of the teacher. (source) I find it most unfortunate that the Dallas Voice is jumping in on the side of “its tribe,” instead of the greater principle of freedom of expression.

The cause of equality would be far better served by gay rights groups standing up in favor of the kid’s right to express himself.

Email to an asshat about a free speech issue

September 24, 2011

I’m on a few list servs. I won’t say which one this originated on. But, lets just jump to what I said:

11 muslim students stood up to heckle the Israeli ambassador. Orange county prosecutor charged them with disrupting an event. While they may not have a right to disrupt the speech without being dragged out of the place, a criminal conviction for political speech is bullshit.

And if it had been 11 Yeshiva students disrupting a speech by a Palestinian, they’d get the medal of freedom.

I agree with all the nice things that have been said about Chemerinsky here, but his balls shriveled up into raisins over this event. (It took place at UC Irvine).

The response: It is “bullshit,” and “anti-semitic.”

Lets unpack that…

Bullshit? Maybe. He, you, everyone is entitled to their own opinion. I might even change mine, and one day repudiate my own opinion as bullshit.

Anti Semitic?

Don’t you love that one?

Since I’ve been a bit off my game blogging lately, I thought I’d mail one in here and just straight up share what I wrote in response to that.

Dear ______________,

Today, 11 men were convicted of a “crime.” The “crime” was “disrupting a speech.” The speech they disrupted was that of the Israeli ambassador. (source)

The “disruption” lasted about 8 seconds per “criminal.” In total, it was about a minute.

Interrupting him might not have been the most constructive way of making their point, but we cant lose sight of what they did. Why they did it. This was political speech. This was the most sacred kind of speech. And, this target was the least deserving of the law’s protection when speech is concerned — a public figure.

The Israeli ambassador was inconvenienced for less time than it takes to boil an egg.

And yet, for that inconvenience. That indignity. That quasi lese majeste. Eleven men were convicted of a crime.
The men were Muslims… The place is the most shocking part – Orange County, California, USA.

Although I despise the “what next?” rhetorical device… I just so need it here.

What next?

Hecklers at comedy clubs could be dragged out and thrown in the back of a cruiser where a drunk just puked? At least one lawyer would have to go to jail after every hearing. Fox news would essentially be illegal in California. My poor wife and I would probably each be witnesses in criminal trials against each other (privilege be damned!!!)

Criminally prosecuted for interrupting a speech.

We could all be arrested, every day, for this “crime.”

No we couldn’t.

Don’t insult my, or your own, intellect by thinking that this could have happened to anyone. Imagine if this had been a member of the Cuban government up there and some exilos from Miami showed up to yell. Do you think for a minute they would be charged, let alone convicted of a crime? Koreans showing up to voice their displeasure at a dignitary from the Hermit Kingdom? Jews in Skokie shouting down a nazi? Hell, nazis coming to Bensonhurst shouting down a Jew.

No, not even nazis get charged with a crime for merely interrupting a speaker.

And yet, for taking the position that these men were selectively prosecuted. For taking the position that this was all about their ethnicity and the content of their speech, some asshole thinks that I’m being “anti semitic.”

It is unfortunate. Because it is that kind of mentality that is at the root of the very reason these men were at odds with the man on the stage. Both of them have thrown in with their tribe rather than with their species. Like crabs in a pot, needing no lid, they would rather gouge out their own eyes than see through those of the other.

And it is that mentality that makes Palestinians unable to listen to Israelis. It is why Israelis can’t possibly back down to any criticism. It is why there are those who are so blind to their tribe, rather than to their entire human family, who decide that anyone who speaks against their interests in any way must be branded. He must be marked with the label of “anti-semite.”

I don’t really think it is my place to judge, but I’m gonna do it anyway. You reverse the polarity on that position, you don’t get a pretty philosophy. So, perhaps these guys did try and win the debate by shouting down the other speaker. That kind of conduct deserves a flag on the play. But what do you think trying to brand someone as something so abhorrent is? What do you call that, when you know it is a lie, you don’t care that it is a lie, but you say it because you know that it will score nice, cheap, points, and more than half the people who see it as bullshit will be afraid to call your ass out.

What do you call that?

I call that a pussy asshat move. So fuck you sir. Fuck you very much.

And really it is — for two reasons. One, to call oneself a First Amendment attorney and to think it is just that these 11 men were convicted of a crime — not merely removed from the room — and they were convicted not for resisting. Not for doing anything that hurt anyone else.


In order to express their opinion on a matter of public concern.

And they were convicted of a crime.

It is sad enough that one would argue against the notion that this is wrong. But, like I said up top, everyone is entitled to their opinion on that. You know where I stand.

But, what a pussy asshat move to try and throw the “big bad bigot” card.

I have tried to think that I was wrong for taking that position. I’ve tried to see it through someone else’s eyes, and the only person I can see with eyes like that is a small minded and fearful person. Someone so insecure, so tepid, so small, that their only defense is to try and lob a bomb. Wanna play rhetoric like that? Here: It is rhetorical terrorism! It strikes at a target that should not be hit, for a reason that doesn’t deserve the energy, and he who employs it has already lost the high ground when they resort to it.

Of course, this is an equal opportunity beta trait. There’s the black guy that screams “racist” to do the same thing. The feminist who whines “sexist” if you disagree with her. You know what, jerkoff?


If you just throw them against anything with which you disagree, you wind up pounding them thin to the point that they don’t mean anything anymore. You can even numb the alarm to those who really are those dangerous things. You create muck in which those dangerous things thrive.

So, I should have added to the end, “not only is a pussy asshat move, but it is anti semitic.”

But, I refrained.

Lake County, FL instituting inartfully drafted student dress code

July 29, 2011

By J. DeVoy

In a wise response to budget cuts and other crises facing Florida’s public schools, Lake County’s School Board has set the stage to impose a dress code that bans “unnatural” hair colors, “extreme” hair cuts, and the use of makeup that is “disruptive or does not allow direct eye contact.”  I don’t see how makeup precludes eye contact, either, though it maybe disruptive – it would make more sense if that provision applied to hair; maybe Lake County was banning the devilock a few decades too late.

The proposed code also sets rules for dress hemlines, skorts, skirts and shorts, none of which can be more than 2 inches above the knee.  Since students and/or parents are incapable of determining these things on their own, too, the propose policy gives instruction on the proper use of clothing, advising that “clothes shall be worn as designed.”

Mendacious as educators and school administrators often are (or maybe my perceptions are skewed from Catholic education), the new policy is aimed at banning “extreme” styles because they can be “dangerous.”  Maybe the policy cites instances of increased fighting among groups of students identified chiefly by their clothing, or details specific risks of, say, falling down the stairs in saggy pants or with a haircut that obstructs one’s line of sight.  Then again, this is Florida, and I doubt any such stated rationale exists.  But never mind that: Won’t someone think of the children?  We don’t think about the children enough in this ruined hellscape of a country.

The Lake County School Board will have a final vote on the policy August 22 – the day the policy is supposed to take effect.

Student speech codes: A year+ in review

December 29, 2010

By J. DeVoy

Greg Lukianoff and Azhar Majeed of the Foundation for Individual Rights in Education (FIRE) recently compiled two years’ worth of academic publications mad possible through FIRE’s Jackson Legal Fellowship.  If you’re in a position to make end-of-year donations, you may do so here.  FIRE is on the list of Satyriconista charities.

[N.B., the following article descriptions were written by FIRE.]

The Misapplication of Peer Harassment Law on College and University Campuses and the Loss of Student Speech Rights,” by Azhar Majeed
Published May 2009, The Journal of College and University Law (Notre Dame Law School)
This article argues that colleges and universities often misapply sexual and racial harassment law to the detriment of campus speech rights, and that in doing so they are misreading their obligations under Title IX and Title VI to prevent true harassment of students.

Defying the Constitution: The Rise, Persistence, and Prevalence of Campus Speech Codes,” by Azhar Majeed
Published November 2009, Georgetown Journal of Law & Public Policy
This article argues that campus speech codes violate the free speech rights of university students, and that in spite of having been deemed unconstitutional by an unbroken series of court decisions, colleges and universities continue to maintain doctrinally flawed speech codes.

Putting Their Money Where Their Mouth Is: The Case for Denying Qualified Immunity to University Administrators for Violating Students’ Speech Rights,” by Azhar Majeed Published October 2010, Cardozo Public Law, Policy and Ethics Journal
This article argues that courts should not grant qualified immunity to university administrators when they are sued for monetary damages in their personal capacity for violating students’ free speech rights because the law is so clearly established with respect to First Amendment rights on campus.

The Twenty-Sixth Amendment: Resolving the Federal Circuit Split over College Students’ Free Speech Rights,” by Kelly Sarabyn
Published April 2009, Texas Journal on Civil Liberties & Civil Rights (University of Texas at Austin)
This article examines the history of the 26th Amendment and demonstrates that it was intended to make 18-year-olds full-fledged citizens, and therefore to end the in loco parentis university. It also argues that since most college students are 18 or older, and most high school students are under 18, the 26th Amendment produces a clear line between the two institutions, and dictates that college students cannot be treated like high school students for the purpose of free speech.

Free Speech at Private Universities,” by Kelly Sarabyn
Published April 2010, Journal of Law and Education (University of South Carolina Law Center and the Louis D. Brandeis School of Law University of Louisville)

Many private universities promise free speech for students and faculty, but then have fine print policies proscribing offensive or harassing speech. This article argues that when such conflicting policies or promises exist, courts should enforce the promises private universities make in light of the reasonable expectations of the student. At liberal arts and research universities, students would reasonably expect to have free speech on campus, and thus the contracts should be interpreted accordingly. This allows private universities to proscribe speech if they wish, and thus respects the right of private association, but it allows universities to do this only if they do so clearly and publicly.

Prescribing Orthodoxy,” by Kelly Sarabyn
Published June 2010, Cardozo Public Law, Policy and Ethics Journal

This article studies the right to freedom of conscience as it manifests itself in various constitutional doctrines and demonstrates how this right against governmental orthodoxy prohibits colleges from implementing programs that seek to mold students’ ideological beliefs with coercion.

Measuring a Degree of Deference: Institutional Academic Freedom in a Post-Grutter World,” by Erica Goldberg and Kelly Sarabyn
Published November 2010, Santa Clara Law Review (Santa Clara University School of Law)
By resolving the ambiguities presented by the Supreme Court’s decision in Grutter v. Bollinger, this article establishes a framework for affording institutions deference for their decision-making. Institutions may invoke academic freedom only for decisions that are truly academic and do not trample upon the First Amendment rights of students and faculty, and should receive different amounts of deference depending on what body within the institution is making the academic decision at issue.

“Must Universities ‘Subsidize’ Controversial Ideas?: Allocating Security Fees When Student Groups Host Divisive Speakers,” by Erica Goldberg
Accepted for publication as lead article, George Mason University Civil Rights Law Journal
This article creates viewpoint neutral rules to govern the assessment of security fees so as not to punish student groups who wish to sponsor a controversial speaker’s visit to campus.

All of these articles can be read at FIRE’s online publication The Lantern.


Advice to Law Students looking for a job — don’t be a goddamned crybaby

December 22, 2010

Popehat has a bad-ass post on an “incident” at Syracuse University School of Law. The short version is this: Syracuse Law student Len Audaer published a blog satirizing his class, the administration, and public figures.

From Popehat’s story.

Somebody complained. Syracuse decided to appoint a “prosecutor” to investigate the blog and determine whether to bring formal charges against Audaer under the Syracuse discipline system. All of that — the fact that someone complained about satire, and that the school didn’t immediately reject the complaint — is appalling enough.

But Syracuse, and specially appointed prosecutor Syracuse law professor Gregory Germain, are angry about the criticism and are doubling down. As is often the case, the attempted cover-up is worse than the initial conduct.

Professor Germain has filed a motion with the Syracuse disciplinary body demanding a gag order against Audaer and his defense team. He wants Syracuse to issue an order forbidding Audaer from disclosing the contents of his own blog, or anything he gets from the university about the proceedings against him, to any third party unless the third parties agree in writing (1) not to disclose the names of any of the people identified in those blog posts or documents without their consent, and (2) to publish the entirety of documents, not just quotes from them, “in order to prevent misleading selective posting of information.”

In other words, Professor Germain thinks that Audaer should be prohibited from sending FIRE, or me, or the Chronicle of Higher Education, or CNN, an unredacted copy of this blog post without the written permission of Ellen DeGeneres. Professor Germain also thinks that Audaer should be prohibited from sending FIRE, or me, or anyone else one of his own blog posts, or any document from the proceedings against him, unless we agree to Professor Germain’s preferred method of writing about it. Professor Germain explicitly demands censorship of documents as a method of getting the type of media coverage of the proceedings that he wants. Of course, no respectable reporter — and no self-respecting blogger, or American — would agree to present materials only in the manner that a censor demanded. Moreover, given an internet in which it is trivially easy for Syracuse and its supporters to host and publish the raw documents themselves, the demand for written guarantees of full publication as a method of achieving “fair” coverage is transparently dishonest and/or stupid. The gag order is deliberately calculated to prevent Audaer from distributing his blog posts and the documentation of his persecution at all.

Remember what the “misconduct” is — a satirical blog.

This profession is full of uptight effete fucking pussies with sticks up their asses. You know why? Part of it is because the profession seems to attract them. But, the bigger part of it is that law schools cultivate uptight stick in the ass pussydom. Of course, just like a good TSA agent, or other low-rung pussy, Professor Germain whines that he is “just doing his job,” and he just wants the individuals who whined to be able to maintain their anonymity.

The students, faculty and staff who were targeted in the sucolitis blog did not consent to have their good names used in the blog, and do not wish to be the subject of attacks on the internet. One of the students has expressed to the Prosecutor a concern for her physical safety. Most wish to find jobs in the legal profession, and feel that bringing further public attention through the publication of their names could damage their
employment opportunities, and would cause further humiliation and embarrassment.

Again, why write my own words when Popehat knocks the shit out of it:

Leave aside, for the moment, the ignorant and authoritarian proposition that people have some sort of right not to have their names used on the internet, and not to be “attacked” on the internet. Focus on this instead: Professor German suggests that the people satirized in the blog fear that having that satire spread further as a result of their own complaints about it would be unfair, because potential employers might see it and their feelings might be further hurt.

I interview, and hire, people at a law firm. I cannot imagine a situation in which I would decline to hire someone because they had been the target of satire. That’s because I’m not a fucking idiot. Perhaps the subjects of Audaer’s blog aspire to be hired by fucking idiots. It sure looks like they are going to the right school, then.

Syracuse’s excuse for a disciplinary system apparently protects the anonymity of accusers, and supports efforts to prevent the publication of their identity. That’s common with systems that have, as their true aim, the uncritical acceptance of accusations and the swift arrival at a predetermined conclusion of guilt. See, if you allow the identity of an accuser to become public, then all sorts of inconvenient things happen. They might suffer consequences for making false accusations. People might read about the case and come out of the woodwork and say “Vance Victim couldn’t have been assaulted by the defendant on Saturday night; I saw him passed out over at Delta house that night,” or “Vance Victim is the same guy who threatened to accuse me of assault twice last year”, or “Vance Victim is a person with a reputation for being a liar and a cad.” In short, That’s why protection of accuser anonymity is repellent and inimical to modern systems of justice.

But Professor Germain does have the kernel of a point about privacy. It’s just not the point he thinks he has. It’s irrational to think that employers will be put off because a humor blog satirized you. However, it’s entirely rational to fear that, if employers find out that you ran to the administration to complain about being satirized, they might not want to hire you. I would happily hire people of every color, religion, and sexual preference. I would hire Republicans and Democrats and Independents and Greens. But I would never, in a million years, hire someone who complained to his or her school administration about being the subject of satire. People who run to the authorities to complain about being the subject of satire are weaklings, crybabies, losers, and nasty censorious authoritarians. I view them as likely to be of sub-optimal intelligence, insufficient fortitude, and poor morals. Those are not the qualities of a reliable employee or a good lawyer. They are not people I want to hire or be friends with. They are people I want to ridicule and shun.


Now I don’t hire very often. When I do, I have a very strict “no fucking pussies” screening process. And, if you get past me, you are sure as shit not getting past my partner, Jessica, who is less tolerant of pussies than I am.

I will tell you one thing for certain: I won’t even interview a Syracuse Law graduate who doesn’t publicly speak out against this travesty, and I would encourage all other lawyers and law firms to take the same stance.

To follow this case more:

Len Audaer’s site on the case. (here)

FIRE’s file on the case. (here)

And if you’re looking for an end-of-the-year charity, donate to FIRE here.

Third Circuit to Public Colleges: Enough With the Speech Codes

August 23, 2010
By William Creeley, Special to the Legal Satyricon

The United States Court of Appeals for the Third Circuit’s decision in McCauley v. University of the Virgin Islands, issued last Wednesday, is a big win for student speech. For the second time in two years, the Third Circuit has struck down a public university’s speech code on First Amendment grounds — and that’s reason to celebrate for anyone who agrees that the “college classroom with its surrounding environs is ‘peculiarly the marketplace of ideas,'” as the Supreme Court eloquently put it in Healy v. James, 408 U.S. 169, 180 (1972) (quoting Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967)). As Director of Legal and Public Advocacy for the Foundation for Individual Rights in Education (FIRE;, a non-partisan nonprofit organization dedicated to defending the First Amendment rights of college students and faculty, I can tell you that I was pretty thrilled by the outcome.

But my personal enthusiasm notwithstanding, McCauley has received scant notice, garnering little more than cursory mention from the Chronicle of Higher Education and Inside Higher Ed. Maybe all the reporters working the college beat are on vacation; maybe the idea of a university in the Virgin Islands strikes assignment editors as inherently suspicious. Whatever the reason, the lack of coverage is regrettable: McCauley is a very important ruling for free speech on campus.

To put McCauley‘s significance in proper context, let’s first review the Third Circuit’s other recent defense of student expression. In DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008), the Third Circuit knocked out Temple’s former sexual harassment policy, which prohibited “expressive, visual or physical conduct of a sexual or gender-motivated nature” that has “the purpose or effect of unreasonably interfering with an individual’s work, educational purpose or status” or “creating an intimidating, hostile or offensive environment.”

The Third Circuit found Temple’s policy facially overbroad because it failed to include any requirement that the allegedly harassing expressive conduct be “severe, pervasive, and objectively offensive” — the exacting standard for peer-on-peer harassment in the educational context established by the Supreme Court in Davis v. Monroe County Board of Education, 526 U.S. 629, 633 (1999). Lacking these threshold requirements, the court found the policy “provide[d] no shelter for core protected speech” and left students who wished to discuss “a broad range of social issues” —  for example, the role of women in military combat operations — at risk of punishment if their peers found their viewpoint “offensive.” Under Temple’s policy, the court reasoned, any “gender-motivated” commentary that another student found offensive was potentially grounds for punishment.

DeJohn was a landmark case because it was a clear pronouncement from an appellate court that the First Amendment rights of public college students can’t be subsumed or compromised by a public college’s harassment policy. While public colleges are legally required under Titles VI and IX of the Civil Rights Act of 1964 to prohibit harassment on the basis of gender, race, color, and national origin, they cannot do so in a way that infringes upon students’ right to free speech. Truly harassing conduct, of course, isn’t protected speech. But as the Supreme Court held in Davis, speech only loses protection and becomes actionable harassment in the educational context when it is “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.” Davis, 526 U.S. at 633.

That’s a tough standard — and for good reason. It requires the alleged “harassment” to be more than just disagreeable, tasteless, offensive, or nasty speech. In our liberal democracy, no citizen enjoys a “right not to be offended” — and neither do students at public college campuses. However much public colleges might like to grant their students this illusory, illiberal and infantilizing right, they have no authority to circumvent the First Amendment. In 2003, the Department of Education’s Office for Civil Rights, the federal office responsible for enforcing Titles VI and IX on campus, sent an open letter to college and university presidents across the country making clear  that “[n]o OCR regulation should be interpreted to impinge upon rights protected under the First Amendment to the U.S. Constitution or to require recipients to enact or enforce codes that punish the exercise of such rights.”

Case closed, right? Amazingly, no. Over 70% of public colleges across the country continue to maintain unconstitutional speech codes — that is, policies that restrict speech that would be protected off-campus. That percentage is even more staggering when one considers that for over twenty years, federal and state courts have routinely struck down speech codes on constitutional grounds, whether they were sloppily-drafted harassment policies, miniscule free speech zones, or misguided civility policies. Here’s the formidable citation string, chock-full of First Amendment goodness:

Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995) (declaring university discriminatory harassment policy facially unconstitutional); DeJohn v. Temple University, 537 F.3d 301, 319 (3d Cir. 2008) (invalidating university sexual harassment policy due to overbreadth); Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989) (enjoining enforcement of university discriminatory harassment policy due to unconstitutionality); The UWM Post, Incorporated v. Board of Regents of the University of Wisconsin System, 774 F. Supp. 1163 (E.D. Wis. 1991) (declaring university racial and discriminatory harassment policy facially unconstitutional); Corry v. Leland Stanford Junior University, No. 740309 (Cal. Super. Ct. Feb. 27, 1995) (slip op.) (declaring “harassment by personal vilification” policy unconstitutional); Booher v. Board of Regents, 1998 U.S. Dist. LEXIS 11404 (E.D. Ky. Jul. 21, 1998) (finding university sexual harassment policy void for vagueness and overbreadth); Bair v. Shippensburg University, 280 F. Supp. 2d 357 (M.D. Pa. 2003) (enjoining enforcement of university harassment policy due to overbreadth); Roberts v. Haragan, 346 F. Supp. 2d 853 (N.D. Tex. 2004) (finding university sexual harassment policy unconstitutionally overbroad); College Republicans at San Francisco State University v. Reed, 523 F. Supp. 2d 1005 (N.D. Cal. 2007) (enjoining enforcement of university civility policy); Lopez v. Candaele, No. CV 09-0995-GHK (C.D. Cal. Sept. 16, 2009) (invalidating sexual harassment policy due to overbreadth) (appeal pending); Smith v. Tarrant County College District, No. 4:09-CV-658-Y (N.D. Tex. Mar. 15, 2010) (invalidating “cosponsorship” policy due to overbreadth).

With the law on speech codes so clearly established, you’d think that presidents, general counsels, and mid-level administrators at colleges across the country would be well aware of the substantial legal risk they run by enforcing constitutionally suspect speech codes. (Think of the qualified immunity concerns!) But no; somehow, they aren’t, and speech codes remain on the books at hundreds of colleges. Despite FIRE’s best efforts to put ourselves out of business, we still have a lot of work to do.

But back to McCauley, which picks up where DeJohn left off and reinforces the fact that public college students enjoy First Amendment rights just like the rest of us.

In McCauley, the Third Circuit affirmed the lower court’s finding that the University of the Virgin Islands’ (UVI’s) “Hazing-Harassment” policy was overbroad. The policy prohibited “any act which causes … mental harm or which … frightens, demeans, degrades or disgraces any person” — and, applying DeJohn, the district court made quick work of it, finding it facially unconstitutional. But the lower court nevertheless upheld two other flawed policies — prohibiting “Conduct Which Causes Emotional Distress” and “Misbehavior at Sports Events, Concerts, and Social-Cultural Events” — and here, the Third Circuit reversed the lower court and issued a powerful defense of student speech rights in the process.

Citing DeJohn, the court held that UVI’s prohibition of conduct causing “emotional distress” unconstitutional because of its inherent and limitless subjectivity: “Every time a student speaks, she risks causing another student emotional distress.” The Third Circuit observed:

The scenarios in which this prong may be implicated are endless: a religious student organization inviting an atheist to attend a group prayer meeting on campus could prompt him to seek assistance in dealing with the distress of being invited to the event; minority students may feel emotional distress when other students protest against affirmative action; a pro-life student may feel emotional distress when a pro-choice student distributes Planned Parenthood pamphlets on campus; even simple name-calling could be punished. The reason all these scenarios are plausible applications of Paragraph H is that the paragraph is not based on the speech at all. It is based on a listener’s reaction to the speech.

Without an objective requirement along the lines of the Supreme Court’s Davis standard, the Third Circuit held that UVI’s “emotional distress” policy dealt “substantial” damage to free speech on campus and thus could not stand.

The “Misbehavior at Sports Events, Concerts, and Social-Cultural Events” policy — which forbade “offensive” or “unauthorized” signs at said events — was similarly doomed. For one thing, the court reasoned, how to decide what signs are “offensive”? Such a prohibition, the court determined, was “hopelessly ambiguous and subjective.” Also: How does a student receive “authorization” for the display of a sign? The policy didn’t specify any procedure for doing so, let alone the narrow, objective, and definite standards required by licensing schemes that impact speech. As a result, the Third Circuit found that the sign policy could be used to “arbitrarily silence protected speech” and therefore violated the First Amendment.

McCauley‘s animating principle is that a “desire to protect the listener cannot be convincingly trumpeted as a basis for censoring speech for university students.” That’s a vitally important message for college presidents, general counsels, and administrators to hear — and, if they’re smart, yet another reason to reform their codes before they’re taken to court.

Thanks very much to Professor Randazza for generously inviting me over to discuss McCauley. It probably won’t surprise anybody when I say that I could ramble on about the decision for a few thousand more words, but I won’t press my luck. Instead, those hardy Satyricon readers that are interested in learning more about the case can check out FIRE’s press release here, my colleague Erica Goldberg’s observations here, or the amicus brief FIRE submitted to the Third Circuit here. Thanks again.

New Rule…

May 6, 2010

No American patriotism allowed on Cinco de Mayo.  It might get in the way of Mexicans celebrating their defeat of the French (an unimpressive accomplishment, really, since everyone beats the French).

Interestingly enough, Cinco de Mayo isn’t even celebrated in Mexico.