The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Ninth Circuit has just handed down an opinion in O'Brien v. Welty, a case in which my UCLA First Amendment Amicus Brief Clinic students and I filed an amicus brief on behalf of the Student Press Law Center and the Foundation for Individual Rights in Education. The opinion does reaffirm student rights to some extent, but I'm afraid it also jeopardizes them to some extent.
1. Neil O'Brien was an outspoken conservative student and something of a campus gadfly. Upset at an item in a campus student newspaper published by the Chicano and Latin American Studies Department, he decided to ask two faculty members questions about this, on video. According to the complaint—the allegations in which the court assumed to be factually accurate for purposes of its decision –
[Without an appointment, O'Brien a]pproached Defendant Torres' office door which was open. With video camera on, Plaintiff asked Torres if he had approved of the "America" "White Savage" poem published in that "La Voz" student newspaper. Defendant Torres refused to speak to Plaintiff. Nevertheless, Plaintiff calmly insisted on speaking to Torres about that poem. Defendant Torres' reaction was to pick up his telephone and call the Fresno State Campus Police. Plaintiff then left Defendant Torres' office …. Plaintiff then approached the open office door of Defendant Lopes and asked her the same series of questions, with his video camera running. She refused to answer the questions, and when Plaintiff asked again, Lopes stated that she did not want to talk to him. She went to the door, closed it, and then called Campus Police.
(Note that the allegations are that O'Brien was standing outside the offices, and talking and recording through the office doorways.)
O'Brien was then disciplined by the university on the grounds that his actions constituted "harassment" and "intimidation." (He was not disciplined under any policy specifically restricting videorecording, since there was no such policy.) The Ninth Circuit concluded that the university policies were limited to speech and conduct that "threatens or endangers the health or safety of any person." But the court concluded that O'Brien's persistent questioning and recording could indeed be seen as such a threat or danger:
Professors at work in their personal offices do not generally expect to be confronted without warning by a student asking hostile questions and videotaping. If the uninvited student refuses to cease hostile questioning and refuses to leave a professor's personal office after being requested to do so, as O'Brien admits occurred here, the professor may reasonably become concerned for his or her safety. O'Brien's behavior as described in the FAC could be considered "harassment" or "intimidation" and threatening under an objective reasonableness standard.
This has pretty striking implications for student journalists: "Asking hostile questions and videotaping" professors—or staff members—through office doorways could be seen as punishable "threaten[ing] or endanger[ing] the health or safety of any person," at least so long as the journalist refuses to immediately stop when told to do so. And this is so even when there's no indication that the journalist has been violent or threatening in the past (since the court didn't rely on any such indication about O'Brien here).
Indeed, since the court's reasoning turns on the conduct being supposedly "threaten[ing] or "endanger[ing]," rather than (say) intrusive on privacy, it may well apply to merely asking hostile questions, without videotaping. "Professor Volokh, aren't you responsible for the evil Volokh Conspiracy blog post about Donald Trump?" "Go away." "No, professor Volokh, I insist that you talk to me for my article." That might well be enough, under the Ninth Circuit's decision, for a student journalist's speech to be punishable "threaten[ing] or endanger[ing] the health or safety of any person." (Note that O'Brien is just as protected by the First Amendment as are traditional journalists, which the court indeed acknowledged on p. 23 of the opinion.)
And of course the court's reasoning would apply to speech said to university students as well. To be sure, they may not have personal offices, but if "asking hostile questions," after once having been told to stop, can be seen as "threaten[ing] or endanger[ing] the health or safety of any person," presumably that would apply even when no personal office is involved. I doubt that courts would conclude that professors are more fragile and more easily intimidated than are students.
So I'm troubled by the Ninth Circuit's opinion on this score. I agree that universities must have the power to restrict speech that genuinely threatens and intimidates people (e.g., true threats of violence). But defining threat and intimidation as broadly as the Ninth Circuit does here strikes me as quite dangerous for campus speech.
(Note that the university may have power to impose some viewpoint-neutral and reasonable restrictions in parts of its buildings, even in the absence of threat or intimidation; e.g., no demonstrations in the hallways, or perhaps even no videorecording of people without their consent in university buildings, though that's a hard call. But the court read this policy as limited to threatening or intimidating behavior, and the court upheld it precisely because it was so limited.)
2. At the same time, I think the Ninth Circuit was quite right in concluding that O'Brien's case could go forward on an unconstitutional retaliation theory:
Otherwise lawful government action may nonetheless be unlawful if motivated by retaliation for having engaged in activity protected under the First Amendment…. Therefore, though O'Brien was appropriately subject to discipline for his confrontation of Dr. Torres and Dr. Lopes, he may state a claim under § 1983 if his allegations, taken as true, could plausibly show that the defendants' actions in disciplining him were substantially motivated by his protected speech or expressive conduct….
O'Brien's [Complaint] plausibly supports a First Amendment retaliation claim…. O'Brien has alleged facts showing that he engaged in speech and conduct protected by the First Amendment in the months leading up to his May 11 confrontation with Dr. Torres and Dr. Lopes. For example, beginning in fall 2010, O'Brien posted on a website his opposition to the student government president and the school administration. He also made several public records requests to Fresno State….
The [Complaint] alleges that prior to May 11, as a result of O'Brien's political activities and his criticism of university faculty and administration, Dean Coon "requested that students and other faculty members gather information and complaints to use against" him. At least one student provided complaints and other documents to Coon pursuant to this request. Some of the defendants, as well as other faculty members, sent emails to President Welty, Vice President Oliaro, and Dean Coon, "demanding that [they] do something about [O'Brien]." … In addition, at about the same time, the director of alumni relations sent emails to other administrators, including the university's communications director, requesting that they "do something" about O'Brien and his website. On May 11 itself, before O'Brien sought to videotape Dr. Torres and Dr. Lopes in their offices, O'Brien overheard Lopes saying that O'Brien was "stalking" the hallway, and Torres saying that the faculty "should post 'wanted' signs with pictures of [O'Brien's] face on them to mock [him] and to serve as a warning to other students and faculty as to what [he] looked like and warn of [his] potential presence."
The [Complaint] also alleges that at the disciplinary hearing on September 13, O'Brien was not given a full and fair opportunity to present his side of the story. The hearing officer refused to look at, or to allow O'Brien to show, the videotape of his encounters with Dr. Torres and Dr. Lopes even though O'Brien represented that the videotape would contradict Torres' and Lopes' accounts of what happened on May 11. Dean Coon made, at most, a half-hearted attempt to locate Detective Manucharyan, who was sitting in the lobby prepared to testify, and who would have testified about the contents of the videotape. And the university refused to allow O'Brien to record the proceedings, or to obtain a copy of the recording that the university made of the proceedings. We do not hold that O'Brien's due process rights were violated in the hearing; that question is not before us. But we do point out that the university, and several of the defendants, did not facilitate—and indeed impeded—O'Brien in his attempt to document and explain his side of the story.
[Further,] Vice President Oliaro … imposed an additional sanction [beyond that recommended by the hearing officer], putting O'Brien on "disciplinary probation" … for the anticipated duration of his time at the university. The consequence of O'Brien's probationary status was that, by university rule, he could not be the president or treasurer of the campus branch of Young Americans for Liberty, the political advocacy group that O'Brien himself had founded. Further, and also as a consequence of his probationary status, O'Brien could not hold a position in Fresno State student government. In other words, the sanction added by Oliaro sua sponte, above and beyond the sanction recommended by the hearing officer, took direct aim at O'Brien's political activities on campus …. [And the Complaint alleges that] in the fall of 2012 university officials deleted posts made by O'Brien on university-managed Facebook pages, permanently blocking him from posting about certain issues, while at the same time allowing posts expressing left-leaning viewpoints to remain….
We hold that a retaliation claim has been stated because the allegations of the [Complaint], if believed, could reasonably support a conclusion that faculty members and administrators at Fresno State not only disagreed with the expressed political views of O'Brien, but also sought to punish and muzzle him in retaliation for his expression of those views.