Victory for Free Speech in DeJohn v. Temple

The Third Circuit Court of Appeals filed an opinion today in DeJohn v. Temple University, et al. The opinion provides an eloquent defense of free speech rights on university campuses and concludes with an unambiguous finding that Temple's speech code is facially unconstitutional.

Today's ruling is a great victory for Sergeant Christian DeJohn, the Temple master's student and member of the Pennsylvania Army National Guard who brought the challenge to Temple's speech code. Christian's willingness to take a stand for his First Amendment right to free expression is a commendable act of bravery-perhaps no surprise, coming as it does from a young man who has served his country in Bosnia-Herzegovina (where he suffered disabling hearing loss), Egypt, and Korea.

It's also a victory for FIRE and other defenders of free speech on campus. In September 2007, FIRE submitted an amicus brief urging the court to reach the ruling it did today, joined by a remarkable coalition of allies, including the ACLU of Pennsylvania, the Christian Legal Society, Collegefreedom.org, Feminists for Free Expression, the Individual Rights Foundation, Students for Academic Freedom, and the Student Press Law Center.

We will have much more to say about the opinion in coming days, but here is an initial summary of the major points in the opinion.

The speech code under challenge in the case banned "all forms of sexual harassment" including "expressive, visual or physical conduct of a sexual or gender-motivated nature" whenever that conduct "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."

After establishing jurisdiction and that the case was not moot, the Third Circuit turned to the policy itself. The court laid out the First Amendment's overbreadth principle, which prevents states from passing laws that do not narrowly limit and define what speech is proscribed. Laws can be overbroad by explicitly covering speech that is protected by the First Amendment or by being so unclear that citizens are hesitant to speak out of a fear that their protected speech will be punished under the law.

The court rejected the notion that this principle might not apply to the university setting, writing, in contrast, that the university is "where free speech is of critical importance because it is the lifeblood of academic freedom." It then quoted the Supreme Court's Healy v. James opinion for the Court's clear summary of its own holdings, writing that "the precedents of the Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large."

In an important point, the court then noted that colleges are governed by different rules than secondary schools, so decisions concerning the secondary school environment do not directly govern cases occurring on the university campus. As college administrators and courts often fail to properly note the significant distinction between the university campus and secondary schools, the Third Circuit's firm articulation of this point is an excellent addition to the jurisprudence. The court wrote:

Discussion by adult students in a college classroom should not be restricted. Certain speech, however, which cannot be prohibited to adults may be prohibited to public elementary and high school students...public elementary and high school administrators have the unique responsibility to act in loco parentis... Temple administrators are granted less leeway in regulating student speech than elementary and high school administrators.

With this in mind, the court turned to the harassment policy, noting it would be held facially unconstitutional "only if no reasonable limiting construction is available that would render the policy constitutional." To the merits, the court first reaffirmed that there is no exception to the First Amendment for "harassing speech." It then held that on a university campus, "speech cannot be prohibited in the absence of a tenable threat of disruption."

Temple's harassment policy, the court found, has no constitutional interpretation. The court wrote that the language of the policy is unconstitutionally overbroad: "[t]he policy's use of ‘hostile,' ‘offensive' and ‘gender-motivated' is, on its face, sufficiently broad and subjective that they could ‘conceivably be applied to cover any speech' of a ‘gender-motivated' nature ‘the content of which offends someone.' This could include ‘core' political and religious speech, such as gender politics and sexual morality." (Internal citations omitted.)

The court pointed out numerous other constitutional deficiencies in Temple's policy, such as the fact that it fails to limit the policy to harassing conduct that is objectively severe and pervasive, and that it impermissibly holds a putative harassing intention of a speaker sufficient as a violation of the policy.

This clear-sighted and much-needed opinion adds to the line of federal court decisions which have unanimously found that broad harassment policies such as Temple's are unconstitutional, for they chill and proscribe protected speech. We will have more analysis to come.