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A California college student was unfairly disciplined for violating a vague “harassment” rule that gives no fair notice that aggressively asking questions of faculty members could result in punishment, the Student Press Law Center argues in a brief filed with a federal appeals court in San Francisco.
“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,’” attorneys for the SPLC argued in the brief, filed Tuesday with the Ninth Circuit U.S. Court of Appeals in the case of O’Brien v. Welty.
The SPLC is represented by noted First Amendment attorney Eugene Volokh with the assistance of students in the UCLA School of Law First Amendment Amicus Brief Clinic. The brief was joined by the Foundation for Individual Rights in Education, Inc. (“FIRE”).
The brief supports the legal arguments made by Neil O’Brien, a conservative student activist attending California State University-Fresno. O’Brien was put on disciplinary probation in September 2011 after he confronted two professors at their offices, with a video camera rolling, asking questions about their involvement in a campus magazine aimed at Latin-American students that O’Brien believed to be liberally biased. When the two professors filed complaints, O’Brien was brought up on charges of violating a state regulation against threats, harassment or intimidation. A college disciplinary board put him on probation and barred him from holding any campus office.
O’Brien sued alleging the punishment violated his First Amendment rights. But in May 2013, a U.S. district judge in the Eastern District of California threw out the complaint, saying O’Brien’s behavior – even by his own admission – amounted to harassment. The judge wrote 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.”
“The SPLC does not agree with Mr. O’Brien’s mission of exerting pressure on faculty members to influence the editorial content of student publications. In fact, we strongly disagree with him. But regardless of our feelings about the messenger or the message, we can’t stand by and watch colleges impose disciplinary sanctions on people just for asking pointed questions on camera,” said attorney Frank D. LoMonte, executive director of the Student Press Law Center. “The takeaway from the district court’s overly broad ruling is that, if you turn on your camera to question a government official and you don’t immediately switch off the camera when you’re asked to, you are a ‘harasser’ and your behavior isn’t protected by the First Amendment. That ruling leaves journalists, who sometimes must do confrontational interviews with uncooperative sources, at grave risk of retaliation.”
The SPLC brief argues that the state harassment regulation under which O’Brien was disciplined is unconstitutionally vague, because it gives no fair notice of what behavior will be punishable. “Harassment” does not have a single agreed-upon legal meaning, the brief notes, and commonly is understood as severe and pervasive behavior that targets a victim based on race, gender or another personal quality, which isn’t applicable in O’Brien’s case.
The brief argues that Senior U.S. District Judge Anthony Ishii dangerously lowered the bar for what constitutes an act of harassment by ruling that the only evidence needed to find a student liable for harassment is the subjective feelings of one person who feels harassed – even if that person is unreasonably thin-skinned and the accused student’s behavior would not have bothered a reasonable person. Well-established legal precedent provides that a person cannot be guilty of harassment unless his behavior would have been harassing to a person of ordinary and reasonable sensitivity.
“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.”
The O’Brien case will come before a panel of Ninth Circuit judges for consideration of his appeal at a yet-unscheduled date. The court is under no legal deadline to make a decision.
Since 1974, the Student Press Law Center has been devoted to educating high school and college journalists about the rights and responsibilities embodied in the First Amendment, and supporting the student news media in covering important issues free from censorship. The Center provides free information and educational materials for student journalists and their teachers on a wide variety of legal topics on its website at www.splc.org.