Victory for free speech: Federal court rules that injunction against speech code will stand

Last week, a federal district court in California ruled that its injunction against a speech code in the Los Angeles Community College District (LACCD) will stand.

The ruling in Lopez v. Candaele denies the LACCD's motion to reconsider the injunction and badly rebukes the college's unavailing—and at times borderline comical—attempts to defend its sexual harassment policy. In the process, the federal court joined a litany of decisions over the past two decades uniformly striking down campus speech codes and once again confirmed what we have been pointing out here at FIRE for the last several years: Unconstitutional speech regulations are indefensible on university campuses and will be struck down by any court faced with a facial challenge.

Torch readers may remember that the case began last fall when Jonathan Lopez, a student at Los Angeles City College, had a classroom speech in front of his peers interrupted by his Speech 101 professor because the professor did not like Lopez's mention of his religious views and experiences. The professor refused to give Lopez a grade for the speech, telling him, "Ask God what your grade is." With the help of the Alliance Defense Fund, Lopez challenged LACCD's sexual harassment policy, which allowed the college to punish any "offensive" expression or speech that had a "negative impact" on a student's academic performance. Worse, the policy contained a section providing "examples" of prohibited speech, including:

Sexual Harassment based on your gender: This is generalized sexist statements, actions and behavior that convey insulting, intrusive or degrading attitudes/comments about women or men. Examples include insulting remarks; intrusive comments about physical appearance; offensive written material such as graffiti, calendars, cartoons, emails; obscene gestures or sounds; sexual slurs, obscene jokes, humor about sex.

Thankfully, the federal District Court for the Central District of California recognized the obvious constitutional defects in the policy and struck it down on First Amendment grounds in a July 10 ruling. In his opinion, Judge George H. King stated that by impermissibly focusing on the purpose, rather than effect, of a speaker's expression, the policy prohibited "a substantial amount of protected free speech." Moreover, the policy's inclusion of stand-alone terms such as "hostile" and "offensive" rendered it "so subjective and broad that it applies to protected speech." Quite properly and admirably, the court relied heavily on the Third Circuit Court of Appeals' 2008 decision in DeJohn v. Temple University, a landmark victory for free speech on campus. The court held that the LACCD policy was unconstitutionally overbroad on its face and enjoined schools in the district from enforcing the policy pending further proceedings in Lopez's case, making clear that schools within LACCD may not censor or punish student expression under the terms of the erstwhile sexual harassment policy. 

Even better, a close reading of Judge King's September 16 ruling reveals that he unequivocally rejected several defenses proffered by the District in upholding the injunction.

First, the LACCD argued that the language in its policy had been previously used by the Equal Employment Opportunity Commission (EEOC) and had been judicially approved. Judge King countered that the District cited "no authority for the dubious proposition that an otherwise unconstitutional policy at a public college becomes constitutional merely because similar language appears in other statutes and regulations." Additionally, he pointed out that judicial approval of similar language had come in Title VII cases involving the employment setting. Such case law has no bearing here because, as Judge King expressly made clear, "college students possess broader First Amendment rights" than do employees in the workplace. In other words, "[t]hat regulations ... might be permissible in the employment context does not necessarily dictate a like result in the college setting."

Second, the District argued incorrectly that the policy was in fact not overbroad because it "regulate[d] only 'conduct having a discernible efffect,' and [did] not target expression 'on the basis of content'" (internal citation omitted). This, the court responded, was demonstrably false on the face of the policy, which specifically targeted verbal as well as physical conduct and included numerous examples of clearly protected expression. The court concluded, "Here, the Policy is undeniably aimed at the content of the expression by prohibiting speech involving certain content, i.e., sexist comments, insulting remarks or intrusive comments about one's gender."

Finally, perhaps in its most desperate straits, the District argued that the July 10 ruling relied too heavily on DeJohn, which in its eyes was "a singular case and not well reasoned." Judge King answered that DeJohn was in fact well reasoned and that "Defendants' scattershot and disjointed arguments do not defeat the reasoning of DeJohn." Judge King pointed out that the District was unable, of course, to find a case where a similar policy had been found to be constitutional in the college setting "so that it might arguably be said to conflict with DeJohn," and that the Third Circuit had even struck down a very similar policy in the elementary and high school setting in Saxe v. State College Area School District, 240 F.3d 200 (3d Cir. 2001). Thus, the District's final attempt to save its policy was soundly rejected.

The entire opinion is well worth a read, and it heartens those of us who have argued time and again that colleges and universities need to dismantle their unconstitutional speech codes or else face public defeat. I am not sure how many more decisions like this one will be necessary before more institutions learn their lesson and begin to fall in line with the case law on speech codes. Until they do, Lopez is yet another meaningful legal victory for free speech on campus, and for that we at FIRE are thankful.