CALIFORNIA — A college student who filed a First Amendment complaint in January is appealing a district court ruling because he believes his complaint was unjustly dismissed.
Neil O’Brien, a senior at California State University-Fresno, filed a First Amendment complaint against six university faculty members in November, alleging they violated his First and Fourteenth Amendment rights through a series of interactions that began in May 2011.
“I just want a fair chance to tell my side of the story, and I still haven’t been given that,” O’Brien said regarding his decision to appeal.
According to the complaint, on May 11, 2011 O’Brien, a recreation administration major, approached two teachers, Victor Torres and Maria Lopes, in the Chicano and Latino-American Studies department to speak to them about the publication of a poem in a supplement of the student newspaper.
O’Brien found the poem, titled “America,” to be “vile” in its description of the country and its citizens, and he wanted to ask the professors why it was published.
“You can’t write a poem like this without catching attention, and it caught a lot of attention,” O’Brien said. “I wasn’t there to pick a fight, just to ask a question, and the best way to document it was to carry a camera, something I did regularly.”
O’Brien said he had been regularly carrying a camera with him prior to the poem’s publication “so that I could protect myself against people falsely alleging my behavior, and I could record my interactions, in particular with people that weren’t in agreement with me, so I could have an accurate record.”
In his recording of the encounter, which can be viewed on his YouTube page, O’Brien asks Torres, “Can you just explain real quick why you actually condoned this, calling Americans ‘white savages’ and what have you?” After Torres does not answer his questions and tells him he is busy with another student, O’Brien continues by asking, “You’re the faculty adviser, can you explain this?”
The recording then shows O’Brien walking down the hall to Lopes’ office, where he asks her, “What do you have to say about Luis Samchez calling Americans ‘white savages’?” Lopes responds by walking to close her door and telling O’Brien, “I told you I prefer not talking to you.”
After their interactions, O’Brien’s First Amendment complaint alleges that the professors filed complaints with campus police that falsely portray his conduct as “threatening or intimidating.”
O’Brien states that his recording demonstrates the falsity of the complaints, and he alleges that the motive for their complaints is retaliation for his conservative political views.
A judicial conference was held in June 2011 and conducted by Carolyn Coon, the dean of students. A 100-foot restraining order between O’Brien and the Chicano Studies staff, offices and classrooms was put into effect; when O’Brien refused to accept to the terms, a date was set for a formal judicial hearing.
The formal hearing was held in September 2011, and it produced a report which found that professors Torres and Lopes could reasonably find O’Brien’s behavior intimidating and harassing. O’Brien claimed the hearing violated his right to due process, and he said that his subsequent restriction from holding student government office was an “unlawful restriction on [his] First Amendment rights.”
O’Brien says he supports the paper’s First Amendment right to publish the poem, but he believes he has a right to question its publication.
“Why is your First Amendment right to write it OK, but my First Amendment right to disagree with it is not?” he said.
In November 2012, O’Brien’s action was commenced in the Superior Court of Fresno County, and within a month it moved to the U.S. District Court.
After O’Brien filed his First Amendment complaint in January, an instant motion to dismiss was filed by the defendants in January.
According to the judge’s order dismissing O’Brien’s complaint, the defendants’ motion to dismiss the First Amendment complaint was granted because “the entirety of [O’Brien]’s action suffers from a single, fatal flaw: his own version of the facts show he violated a code of conduct that provided a content-neutral basis for school faculty and officials to regulate, limit and sanction expressive conduct that is subjectively found to be harassing, intimidating or threatening.”
Brian Leighton, O’Brien’s attorney, says whether or not the professors could have felt threatened is a question for a jury to decide, not a judge, which is why O’Brien plans to appeal the dismissal to the Ninth Circuit U.S. Court of Appeals.
“The judge was weighing evidence, which he can’t do on a motion to dismiss,” Leighton said. “Whether or not they could feel threatened—that’s not a judge’s decision, that’s a jury question.”
A spokesman for the university said in an email that the school had not received notice of O’Brien’s appeal and declined further comment.
“I knew this was going to be a fight from day one, and it’s an issue worth fighting,” O’Brien said. “They started the fight, and I want to be the one to deliver the knockout punch.”
By Allison Russell, SPLC staff writer. Contact Russell by email or at (703) 807-1904 ext. 119.