Great First Ammendment Ruling

From FIRE, comes this really encouraging ruling:

Earlier this month, U.S. Magistrate Judge Wayne Brazil partially granted plaintiffs' motion for a preliminary injunction in the San Francisco State University (SFSU) speech codes litigation. Yesterday, Judge Brazil issued his written opinion on the motion, and in so doing struck a devastating blow against speech codes at universities in California and hopefully"”...

Judge Brazil enjoined the university from enforcing both the civility
requirement and a related provision allowing student organizations to
be punished collectively if any group members engage in behavior
"inconsistent with SF State goals, principles, and policies." Judge
Brazil did not enjoin the university from enforcing its prohibition on
"[c]onduct that threatens or endangers the health or safety of any
person within or related to the University community, including
physical abuse, threats, intimidation, harassment, or sexual
misconduct." However, he emphasized that the provision must be narrowly
construed to only prohibit that "intimidation" or "harassment" which actually endangers someone's health or safety,
and explicitly directed the university that the policy "may be invoked
only as it has been construed in this opinion." This limiting
construction prohibits the university from interpreting that provision
broadly to punish constitutionally protected speech (since the vast
majority of speech that actually endangers someone's health or safety
is not constitutionally protected).

Here are a few excepts from the Judge's decision:

It is important to emphasize here that it is controversial expression
that it is the First Amendment's highest duty to protect. By political
definition, popular views need no protection. It is unpopular notions
that are in the greatest peril "” and it was primarily to protect their
expression that the First Amendment was adopted. The Framers of our
Constitution believed that a democracy could remain healthy over time
only if its citizens felt free both to invent new ideas and to vent
thoughts and feelings that were thoroughly out of fashion. Fashion, it
was understood, is an agent of repression "” and repression is an agent
[of] democracy's death....

There also is an emotional dimension to the effectiveness of
communication. Speakers, especially speakers on significant or
controversial issues, often want their audience to understand how
passionately they feel about their subject or message. For many
speakers on religious or political subjects, for example, having their
audience perceive and understand their passion, their intensity of
feeling, can be the single most important aspect of an expressive act.
And for many people, what matters most about a particular instance of
communication is whether it inspires emotions in the audience, i.e.,
whether it has the emotional power to move the audience to action or to
a different level of interest in or commitment to an idea or cause. For
such people, the effectiveness of communication is measured by its
emotional impact, by the intensity of the resonance it creates.
How is all this relevant to our review of the University's
civility requirement? Civility connotes calmness, control, and
deference or responsiveness to the circumstances, ideas, and feelings
of others. ["¦] Given these common understandings, a regulation that
mandates civility easily could be understood as permitting only those
forms of interaction that produce as little friction as possible, forms
that are thoroughly lubricated by restraint, moderation, respect,
social convention, and reason. The First Amendment difficulty with this
kind of mandate should be obvious: the requirement "to be civil to one
another" and the directive to eschew behaviors that are not consistent
with "good citizenship" reasonably can be understood as prohibiting the
kind of communication that it is necessary to use to convey the full
emotional power with which a speaker embraces her ideas or the
intensity and richness of the feelings that attach her to her cause.
Similarly, mandating civility could deprive speakers of the tools they
most need to connect emotionally with their audience, to move their
audience to share their passion.
In sum, there is a substantial risk that the civility requirement
will inhibit or deter use of the forms and means of communication that,
to many speakers in circumstances of the greatest First Amendment
sensitivity, will be the most valued and the most effective.

Wow!  This is fantastic, and aimed right at University speech codes that try to ban any speech that offends someone [a standard that tends to be enforced unevenly, typically entailing prosecuting only those students who offend people who are like-minded with the school's faculty and administration.



  1. Andy:

    Most excellent!!

  2. Raven:

    Too lazy to read the actual decision... does anyone know if this case was based on SFSU receiving Federal funding? In other words, is this judge claiming the 1st amendment applies to private organizations?

  3. morganovich:

    pray this doesn't get kicked up to the ninth circuit.

    this is just the sort of reasonable thinking they seem to love to overturn...

  4. Mark:

    I also do not have time to read the actual decision, but one thing that is clear about these types of "codes" is that they are not enforced evenly.

    THat is, a leftist can walk around campus with a negative message like "F*CK BUSH" and that is tolerated. But a social conservative cannot conduct any speech that supports their views on abortion or homosexuality, even if the language is positive.

    THe conduct of the left and the academic tolerance of it is perhaps one of the most disappointing things in my life.

  5. markm:

    Andy, SFSU = San Francisco State University is not a private organization. States are also bound by the 1st Amendment - not that I know of any state college that isn't also getting federal funds.

    If you're asking about private colleges implementing a speech code similar to SFSU's, they might have to turn down various federal subsidies. There are several ways a private college can receive federal money - various direct subsidies, research grants for specific projects, and tuition payments from students receiving federal aid - and the rules can be different for each funding program. Government money going directly to the institution as a whole will definitely bring it under the Bill of Rights, but most federal money is earmarked for specific programs, and thus may affect only that project. Finally, IANAL, but I think that loans, grants, and vouchers given to students to be spent on the school of their choice do not count as government money going to the school. E.g., no government agency could fund a seminary but you can take your Pell grant and spend it on tuition for a seminary.

    Also remember that unwise and unconstitutional are not the same. A college's primary job is to teach students to think, and free debate is essential to that. Any school administration that will even think about an SFSU-style speech code has thereby proven they are utterly unfit to run a school of higher education. Until the whole administration is replaced, I wouldn't go to SFSU, I wouldn't let my kids go there, and if I was a Californian I'd be writing angry letters to my state representative about my tax dollars going to pay the salary of those malignant incompetents.

  6. Flash Gordon:

    Was it Andy or Raven who asked if the 1st Amendment applied to SFSU? Raven, I think. Anyway, markm is correct on both counts. SFSU, by virtue of being a state university is subject to the 1st Amd. since the 1st Amd. has long since been incorporated into the 14th Amd. so that it applies to the states. And the sheer fact that SFSU is an institution of "higher" learning means it gets some federal funding although that alone might not be enough to make what it does constitute "government action" so as to make it subject to the 1st Amd. The more usual reason the federal government gets to tell universities what to do, such as the Virginia Military Institute, is that the statute under which they get federal funds provides that funds can be cut off under certain circumstances.

    We can safely assume one or both of these things applies because this judge has shown by his opinion that he is a wise and learned man.

  7. Andy:

    It wasn't me, but I concur with markm. That's also why the 08 election will be important for the 1 or 2 justices due to be replaced. I've had it up to here with post-modernist, multi-kulti PC silliness.