O'Brien v. Welty

818 F.3d 920 (9th Cir. 2016)

Neil O’Brien, a conservative student activist attending California State University-Fresno, was disciplined 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 that O’Brien believed was liberally biased. 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 filed suit, arguing that the punishment violated his First Amendment rights. In May 2013, a U.S. district judge in the Eastern District of California granted Fresno State’s motion to dismiss the complaint. 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.”

In a brief also joined by the Foundation for Individual Rights in Education, Inc., the SPLC argued that the college’s disciplinary rule was unconstitutionally vague and risked intimidating journalists seeking to do confrontational interviews with university officials. “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,’” the SPLC told the Ninth Circuit U.S. Court of Appeals in a brief filed with the help of students in the UCLA School of Law First Amendment Amicus Brief Clinic and their instructor, noted First Amendment attorney Eugene Volokh. The brief asked the appeals court to clarify that a videographer cannot be punished for “harassment” just for refusing to switch off his camera as soon as he is asked to.

The Ninth Circuit Court of Appeals held that the university’s decision did not violate O’Brien’s First Amendment rights and that the policy was a reasonable restriction on speech. The court noted that O’Brien’s behavior was hostile and could be objectively considered threatening harassment or intimidation that could make professors concerned for their safety.