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Discipline of UNM Med Student for "Unduly Inflammatory" Anti-Abortion Post Upheld

There is no "clearly established" First Amendment rights of public university professional school students to engage in such speech, a federal court holds.

Shortly after the 2012 election, Paul Hunt, then a medical student at the University of New Mexico, posted this on his personal Facebook page:

All right, I've had it. To all of you who support the Democratic candidates: The Republican Party sucks. But guess what. Your party and your candidates parade their depraved belief in legal child murder around with pride.

Disgusting, immoral, and horrific. Don't celebrate Obama's victory tonight, you sick, disgusting people. You're abhorrent.

Shame on you for supporting the genocide against the unborn. If you think gay marriage or the economy or taxes or whatever else is more important than this, you're fucking ridiculous.

You're WORSE than the Germans during WW2. Many of them acted from honest patriotism. Many of them turned a blind eye to the genocide against the Jews. Bur you're celebrating it. Supporting it. Proudly proclaiming it. You are a disgrace to the name of human.

So, sincerely, fuck you, Moloch worshipping assholes.

I doubt that this is an effective way of persuading anyone, but I would have thought that it was clearly constitutionally protected, and that a public university had no power to punish such speech. But the University of New Mexico School of Medicine thought otherwise, and disciplined Hunt for violating its "Respectful Campus Policy," which appears to apply to social media posts, and which at the time said (the current version is vaguer):

Individuals at all levels are allowed to discuss issues of concern in an open and honest manner, without fear of reprisal or retaliation from individuals above or below them in the university's hierarchy. At the same time, the right to address issues of concern does not grant individuals license to make untrue allegations, unduly inflammatory statements or unduly personal attacks, or to harass others, to violate confidentiality requirements, or engage in other conduct that violates the law or University policy.

The medical school claimed that this statement was "unduly inflammatory," involved an "unduly personal attack[]," and "harass[ed] others"; its view then is that even sharp criticisms of a large group ("all of you who support the Democratic candidates") are punishable as being "unduly personal."

Hunt was ordered to go through a "professional enhancement prescription," which required "mentorship by a faculty member who would 'assign readings and supervise a reflective writing assignment on patient autonomy and tolerance," producing a "reflective writing assignment on the public expression of political beliefs by physicians," writing "an apology letter, which Hunt could present to anyone of his choice, or no one at all," going through "ongoing meetings with [a faculty member] over a one-year period," and "rewriting the Facebook post in a passionate, yet professionally appropriate way." Here was Hunt's rewrite:

To the supporters of Democratic candidates;

I have many disagreements with the Republican Party, and to be honest, I find some of their positions as ill-conceived and detrimental as the most ardent Democrat. However, I find myself disturbed in the defense of the pmty and the rejoicing in its victory tonight. This is, of course, because as one of its core positions, the Democratic Party supports the legality of the murder of children. This belief, by some, is worn with shame. However, too often, supporters of the Democrats parade their support of this particular issue as a high virtue. It ls lauded with great pride.

This act of abortion, feticide, murder, pregnancy termination -- whatever you wish to call it -- is disgusting and immoral. Hunan beings at their most innocent and vulnerable are being killed. Many of you are celebrating President Obarna's re-election with great joy because of his support for the continued legality of abortion, and frankly, this exuberant jubilation disgusts me. I have many friends who think that legal means have been exhausted, and that there is essentially no difference between Republicans and Democrats on this issue. Republicans use it to get votes, and the legality of abortion is firmly entrenched. I disagree, but I sympathize with this position and understand why someone would vote Democratic accordingly. However, every other issue, healthcare reform, marriage equality, the economy, or taxes, pales in comparison to the murder of 1.3 million human beings every year.

To those who support the Democratic Party specifically because of its position on abortion, I say to you, "Shamel" Many have stood by in history duting genocide and other mass murders with tacit approval. Some have stood by in fear to speak up for their own lives and safety. Others participate and goad on. I urge those of you engaged in promoting and continuing this atrocity to reconsider your positions.

Still not good enough, said the Committee for Student Performance and Evaluation (according to Hunt's account in his affidavit, which the university did not deny). Hunt had to rewrite this again, and the Committee then accepted the revised version, which omitted the reference to genocide, atrocity, and shame -- though it's hard to tell what exactly the Committee thought was necessary to have this political statement be sufficiently "professional."

Hunt sued, and yesterday the federal district court rejected his First Amendment claim: University officials, the court said, were entitled to "qualified immunity" because any First Amendment protection against such restrictions on supposedly "inflammatory" speech by public university professional students wasn't "clearly established" enough. Qualified immunity is notoriously hard for plaintiffs to defeat, because such immunity from damages protects "all but the plainly incompetent or those who knowingly violate the law," so usually plaintiffs must point to a binding precedent squarely on point; and while here I think the body of First Amendment law is clear enough that the plaintiff should have prevailed, I can see why a court might conclude otherwise.

Still, this is an excellent illustration of just how broad university censorship of student opinions has gotten -- an illustration we should keep in mind when we consider how such "respect" codes can be applied. Here we have:

  • student speech on a clearly political topic,
  • said outside campus,
  • not as part of any class assignment or educational project,
  • not closely connected to the author's professional responsibilities, and
  • not targeted to criticize any particular person.

This isn't, for instance, a trainee doctor being disciplined for speech to a patient, or for refusing to treat a patient; it isn't a trainee being admonished for a poor bedside manner in the conduct of his professional responsibilities. The university is purporting to police, in the name of "professionalism," the person's public political pronouncements. To be sure, even in the absence of some of these factors, the speech should still be protected; but when all these factors are present, it seems to me that the university's error is especially clear.

Nor do I think that the medical school action could be justified by the vulgarities in Hunt's original post. First, note that the medical center rejected Hunt's first rewrite, which didn't include such vulgarities; the strongest terms in it are saying "Shame!," saying that abortion "is disgusting," and calling it "murder," an "atrocity," and akin to "genocide."

Second, the prohibition in the policy wasn't limited to vulgarities, but covered any "unduly inflammatory statements." This was potentially much broader than a ban on vulgarity; it was vague; and it was obviously open to applications that discriminate based on viewpoint (since what is "unduly" inflammatory and what is "duly" so doubtless turns on whether the university agrees that some action is atrocious, shameful, or disgusting).

Third, I don't think public universities have any power, under the First Amendment, to try to police vulgarities in students' speech, at least outside classes and curricular projects (such as internships). This very case helps show why the lesson of Cohen v. California (1971) (the "Fuck the Draft" case) applies fully to such situations:

First, the principle contended for by the State seems inherently boundless. How is one to distinguish this from any other offensive word? Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us. Yet no readily ascertainable general principle exists for stopping short of that result were we to affirm the judgment below. For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man's vulgarity is another's lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.

Additionally, we cannot overlook the fact, because it is well illustrated by the episode involved here, that much linguistic expression serves a dual communicative function: it conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well. In fact, words are often chosen as much for their emotive as their cognitive force. We cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or no regard for that emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated. Indeed, ... "[o]ne of the prerogatives of American citizenship is the right to criticize public men and measures—and that means not only informed and responsible criticism but the freedom to speak foolishly and without moderation."

Finally, and in the same vein, we cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process. Indeed, governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views. We have been able, as noted above, to discern little social benefit that might result from running the risk of opening the door to such grave results.

Finally, I find it hard to imagine that the medical school was prepared to equally police "inflammatory" expression of all viewpoints, such as rants against alleged police brutality, or President Trump, or supposedly unethical businesses. The court concluded (pp. 20-21 n.4) that Hunt hadn't introduced enough evidence that the medical school had knowingly declined to enforce the policy against other posts in the past. But I can't imagine that a modern medical school would indeed consistently enforce such a policy in the future; instead, human nature being what it is, the school would likely punish sharp rhetoric expressing some views but not similarly sharp rhetoric expressing other views. Whether or not Hunt's damages claim should have succeeded, the policy itself strikes me as unjustifiable.

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  • dwb68||

    And: The "punishment" sounds more like Orwellian re-education ("reflective writing assignment on the public expression of political beliefs by physicians.")

    This is yet another example of why Qualified Immunity needs to scaled back significantly. The constitution is becoming unenforceable, because officials are not held to account (unless there an identical fact pattern as precedent, which there rarely is).

  • AmosArch||

    The judge also seems to be operating under a novel new interpretation of the First Amendment where free speech is prohibited everywhere unless under explicit exceptions instead of the mainstream interpretation of the other way around.

  • Jerry B.||

    "Individuals at all levels are allowed to discuss issues of concern in an open and honest manner, without fear of reprisal or retaliation from individuals above or below them in the university's hierarchy."

    And yet again, a university's speech rules promise discussions in an open and honest manner, right before the pages of rules that tell you that you can't express yourself openly or honestly.

  • M.L.||

    He should get damages and the responsible officials should be fired.

  • Bill Poser||

    This is an appalling decision. The medical school should never have taken this up. One small point: it is probably true that this is not a good way to persuade anyone, but persuasion is probably not the function of the post. Such a rant is cathartic. It relieves the frustration of the author at what he sees as the quite unreasonable views of those who disagree with him. It satisfies a real emotional need. This is yet another reason why expression should not be suppressed, even when it does not serve a persuasive function.

  • ReaderY||

    Critical question: Did the district court undo his discipline and simply say that he couldn't collect damages, or did they leave the discipline in place?

    Is he free to withdraw his apology and post his original post again without fear of reprisal?

    If not, there is a much bigger problem.

  • ReaderY||

    There doesn't seem to be any link to the court opinion, so no way of knowing.

  • Eugene Volokh||

    The discipline wasn't retroactively undone; see pp. 7-8 of the opinion for the procedural reasons why the court didn't even reach that question.

    I had linked to the opinion earlier in the post, when I was discussing the facts (drawn from that opinion), but you're right that I neglected to include the link when I actually mentioned the opinion; I've updated the post to include that link.

  • gormadoc||

    Isn't punishing inflammatory speech rather self-affirming? A university could decide to punish someone for any speech and declare it clearly inflammatory, as it provoked a response by the university. If anybody else gets upset by the speech that just bolsters the claim, even if they would have never known about it if the university didn't make it into a topic. It's like weaponizing the Streisand effect.

  • M.L.||

    We were inflamed. Therefore it's inflammatory.

  • swood1000||

    Nor do I think that the medical school action could be justified by the vulgarities in Hunt's original post. First, note that the medical center rejected Hunt's first rewrite, which didn't include such vulgarities; the strongest terms in it are saying "Shame!," saying that abortion "is disgusting," and calling it "murder," an "atrocity," and akin to "genocide."

    One wonders whether this first rewrite would have been rejected if it had been written to condemn the Ku Klux Klan or supporters of Hitler's actions instead of supporters of abortion.

  • perlchpr||

    Not really. Because it never would have come up in the first place if it had been about Hitler or the KKK, so there wouldn't have been a "rewrite". :-/

  • Harvey Mosley||

    When agents of the state protect other agents of the state from the consequences of the harm they do it is time that both the judges who excuse the behavior and the power mad bureaucrats who perpetrate the harm be introduced to short ropes and tall trees. Or at least tar and feathers.

  • RobC_||

    The link to the opinion is the first one in Volokh's post. Judge Judith Herrera, Georgetown Law '79, George W. Bush nominee, can perhaps be forgiven for finding qualified immunity, but not for her conclusion that the speech at issue here was not protected in 2012-13. Shame.

  • ReaderY||

    Error note for Professor Viking: The first link is a link to the judicial order, not to the Facebook post (as the text says).

    That said, it seems an extreme stretch to say that not only can a personal post to ones own Facebook page represent an academic matter subject to academic discipline, but it was a "gray area" so that a university could not have known in 2012 that personal posts to ones own Facebook page might be thought of as non-academic in character.

    People who have personal diaries or tell things to their spouses ought to worry. So far as I know, there is no judicial decision specifically holding that a school can't decide that what one writes in ones diary or tells ones spouse isn't an academic matter subject to academic discipline, based on the school's judgement and not subject to any fixed criteria.

    If I were President Trump, I'd form a university now for the sole purpose of being able to obtain access to people's personal materials on academic grounds, just as I'd attempt to become my political opponents' legal guardian so I could institutionalize them, silence them, and drain their assets, all legally. It's yet another loophole in the usual forms of due process that provides exploit opportunities to a person willing to use the loopholes strategically.

  • Eugene Volokh||

    As Odin is my witness, I linked to the order because the post is quoted in the order.

  • Eddy||

    Odin? And someone above called you a Viking. Another joke I don't get, I suppose. :(

  • Eddy||

    Wait - you deem yourself pro-immigrant, and Led Zeppelin wrote a song called The Immigrant Song which was about Vikings. Is that it?

  • perlchpr||

    I presumed it was an autocorrected "Volokh".

  • Eugene Volokh||

    No, you got it -- it was just a very small joke. I saw ReaderY's reference to me as "Professor Viking" (which, I assumed with perlchpr, was an autocorrect), and I decided to play along.

  • Mike45||

    "If I were President Trump, I'd form a university now for the sole purpose of being able to obtain access to people's personal materials on academic grounds"

    What a great idea. We would soon have so many court rulings protecting speech that all of these university speech restrictions would be thrown out.

  • apedad||

    Completely agree about the QI issue and this being a horrendous decision.

    I do take issue with Prof. Volokh's statement, "Still, this is an excellent illustration of just how broad university censorship of student opinions has gotten. . . ."

    So you mean university policies were better in the 1850s or 1950s?

    No, the struggles we see in universities and other govt agencies (e.g. computer searches, etc.), as well as the entire population in general is due to we simply have not been able tame this (relatively) new technology called the Internets.

    Governments simply cannot accept that there is an entity that they cannot control.

    Probably the only way this 'problem' goes away is when the current millennial generation comes to power and decides to not even try to control the web.

  • Brett Bellmore||

    The chief difference is that in the 1850's or 1950's, you'd be expelled for opposing prevailing morality, today you get expelled for defending it...

  • DavidTaylor||

    I cannot speak to the general point, but in this instance the med student was not defending prevailing morality. As of July, 2018, surveys were showing that 60% of Americans felt that abortion should be legal for the first trimester of pregnancy. Even in 2012, when the student posted his original note, only 18% of Americans felt that abortion should be illegal in all cases.

    https://news.gallup.com/poll/1576/abortion.aspx

    And I don't recall any mention of his getting expelled.

  • ||

    I very much doubt this level of opposing abortion is the prevailing morality. It is still wrong to punish him.

  • AmosArch||

    >>>>>>
    Probably the only way this 'problem' goes away is when the current millennial generation comes to power and decides to not even try to control the web.
    >>>>>>

    lol

  • Careless||

    has to be a joke

  • Rev. Arthur L. Kirkland||

    Still, this is an excellent illustration of just how broad university censorship of student opinions has gotten

    Not as broad, however, as the degree to which certain observers disregard, for blatantly partisan reasons, the greater volume of campus censorship of student opinions (and faculty opinions, and faculty research, and textbooks, and student conduct, and employee beliefs, and the like).

  • Eddy||

    But you left out the part about "loyalty oaths." If students and faculty agree not to propagate certain ideas, and it's a private institution, they can legitimately be held to that promise.

    The government, in contrast, can only under very narrow circumstances exact or enforce such a promise to limit one's speech.

  • Rev. Arthur L. Kirkland||

    You are free to embrace superstition-based censorship as superior to other censorship, because every ostensible adult knows that fairy tales rule.

    And because of mindless partisanship in the service of ignorance and intolerance.

    The government should not censor. It also should not fund institutions that censor and teach nonsense.

    America eventually will reach that destination.

  • Eddy||

    You can order these and more of the Greatest Hits of Arthur Kirkland from K-Tel, including...

    Superstitious Goobers

    Cram Enlightenment Down their Throats

    Can't Keep Up

    ...order now and get, absolutely free, a recording of Kirkland's classic "Let's Pack the Court!"

    Operators are standing by!

  • Alpheus W Drinkwater||

    "Carry on, clingers"

  • perlchpr||

    Hunh. I was working in the Information Security group for UNM Main Campus IT at the time, so I'm surprised I'd never heard about this before. The Med School ("North Campus") is separate, for political reasons (no really, "She's friends with the former Governor" is totally a thing on UNM campus) but I still would have expected the case to come up.

    Weird.

    This behaviour on the part of the Med School is not at all surprising, though.

  • perlchpr||

    Also, shit! No one ever told me that I got QI as a perk of being a University Employee!

    I see no possible way in which this could go poorly. :D

  • Rev. Arthur L. Kirkland||

    I believe Mr. Hunt should have been entitled to publish his opinions.

    I also would understand why no student or faculty member would associate with Mr. Hunt. No one should be required to or should wish to associate with someone who believes half his countrymen are murderers worse than Nazis.

    The 'many Nazis were honest patriots' line was a nice touch, saying more about Mr. Hunt than most of his defenders would care to admit.

  • AmosArch||

    It'd be nice to see how many millions of students can now be punished for ranting against Drumpf if the right official reads it as being too mean. Wonder what Cracker Jack box Ms Herrera fished her law degree out of. Who nominated her anyway? Wow, Bush? Okay I guess thats not as big a surprise as it might seem at first.

  • Eddy||

    Sir, I won't hear such slurs against the Cracker Jack company.

  • phoqueue||

    Just another reminder of how silly a doctrine qualified immunity has become.

  • Eddy||

    Why am I not surprised?

    "The UNM Division of Family Planning provides research, education, and clinical services to help individuals maintain their reproductive health and to prevent unintended pregnancies....

    "Areas of Special Interest

    "...Medical abortion up to 10 weeks

    "Surgical abortion up to 22 weeks, including terminations for genetic indications"

    When this student was denouncing abortion, he was denouncing the activities of his own university!

  • Eddy||

    It's worse than a student at Alabama denouncing the football program.

  • Rev. Arthur L. Kirkland||

    It's a public university. Why would it not offer abortions?

  • Eddy||

    Aaaaand...the point goes right over your head.

  • Eddy||

    "Before quitting the subject of freedom of opinion, it is fit to take some notice of those who say, that the free expression of all opinions should be permitted, on condition that the manner be temperate, and do not pass the bounds of fair discussion. Much might be said on the [Pg 99]impossibility of fixing where these supposed bounds are to be placed; for if the test be offence to those whose opinion is attacked, I think experience testifies that this offence is given whenever the attack is telling and powerful, and that every opponent who pushes them hard, and whom they find it difficult to answer, appears to them, if he shows any strong feeling on the subject, an intemperate opponent....With regard to what is commonly meant by intemperate discussion, namely invective, sarcasm, personality, and the like, the denunciation of these weapons would deserve more sympathy if it were ever proposed to interdict them equally to both sides; but it is only desired to restrain the employment of them against the prevailing opinion: against the unprevailing they may not only be used without general disapproval, but will be likely to obtain for him who uses them the praise of honest zeal and righteous indignation."

    John Stuart Mill, On Liberty

  • Stephen Lathrop||

    With regard to what is commonly meant by intemperate discussion, namely invective, sarcasm, personality, and the like, the denunciation of these weapons would deserve more sympathy if it were ever proposed to interdict them equally to both sides; but it is only desired to restrain the employment of them against the prevailing opinion: against the unprevailing they may not only be used without general disapproval, but will be likely to obtain for him who uses them the praise of honest zeal and righteous indignation.

    With regard to standards of professional conduct? Seems like professionals do a pretty good job of being even-handed against, what is commonly meant by intemperate discussion, namely invective, sarcasm, personality, and the like, . . . Perhaps the Mill example is inappropriately chosen in this case.

  • Eddy||

    He wasn't talking politics with his patients, he was acting as a citizen, criticizing a "procedure" performed by his own university. There is no indication these standards were applied to "both sides."

  • Stephen Lathrop||

    Eddy, you are suggesting that standards of professionalism involved went unobserved by pro-choice speakers at the University of New Mexico medical school? And that when that happened, there were no consequences for those uttering extreme and uncivil rants on behalf of a pro-choice position? Show it.

    Otherwise, concede that your point is not about Mill's remark, but about attacking standards of professionalism if they inconvenience extremist pro-life rants.

    Also, do you argue that constitutional law prohibits private professional organizations to hold their members to professional standards of speech, not just during the practice of their profession, but at all times? If so, on the basis of what power would you justify the notable constraints on rights any such prohibition would inflict?

  • Eddy||

    Private organizations? Sure.

    Now let's get back to the University of New Mexico, a government institution.

    As I said, I'd be more willing to credit their good faith if they accepted the guy's revised comments.

    And I'd be more willing to take *your* argument seriously if you showed some awareness of the context of widespread campus double-standards in which this all takes place, in spite of which, by what you believe to be clever rhetorical device ("either admit such-and-such or avow such-and-such straw-man position"), you try to reverse the normal burden of prof.

    The university performs abortions. It imposed censorship upon prolife speech. This doesn't happen in a vacuum, and if you want to show that they would have censored similar prochoice speech, go ahead and offer your proof.

    Specifically, what are the chances the university would have censored a prochoice student who said something along these lines (rephrasing the "problematic" final paragraph of the revised prolife statement):

    "To those who support the Republican Party specifically because of its position on abortion, I say to you, "Shamel" Many have stood by in history during the enslavement and death of women with tacit approval. Some have stood by in fear to speak up for their own lives and safety. Others participate and goad on. I urge those of you engaged in promoting and continuing this atrocity to reconsider your positions."

  • Stephen Lathrop||

    Eddy, the "widespread campus double-standards in which this all takes place," are what I asked you to show. You assert they exist, in this particular context. That puts the burden on you. Show it.

    If you can't do that, give thought to how an alleged fact for which you have produced no evidence except something you speculate, ("Specifically, what are the chances the university would have censored a prochoice student . . ."), got into your head in the first place.

    The question of what those chances are is your own question. Do you suppose you can answer it with an assumption, and then rely on the assumption as a fact? Of course you can do it, as you demonstrate, but then you don't have a proper argument.

  • Eddy||

    We simply disagree on who has the burden of proof when a university censors speech which is not only politically incorrect, but attacks an institution supported by the university itself.

    To borrow an example I've given previously, what if the University of Alabama censors a student who criticizes the football program? I suppose it's possible they can show they might have censored a student for overpraising the football program and denouncing its critics, but who has the burden of proof (at least in debate)?

    As far as "widespread campus double standards," see this link: thefire.org

  • Eddy||

    But, bottom line, suppose you could find that they have an evenhanded censorship policy by which medical students are censored for saying Republicans should be ashamed of themselves for endangering women's lives and instituting a Handmaid's Tale regime.

    That would be a violation of free expression, and I cheerfully denounce this (I believe quite hypothetical) example of censorship if it took place at a public institution, even a professional school.

  • NToJ||

    "Also, do you argue that constitutional law prohibits private professional organizations to hold their members to professional standards of speech, not just during the practice of their profession, but at all times?"

    The New Mexico Medical Board is not a private professional organization. Licensure laws prohibiting unprofessional speech are either unconstitutionally vague (and subject to facial challenge), or end up being constitutionally invalid as-applied because they inevitably will result in content-specific punishment.

  • Eddy||

    That's what I meant to say. The University of NM and the state medical boards are not private organizations.

    I don't know how private groups even got into this discussion.

    But of course private organizations should have the right to discriminate against people with views they dislike. For example, a private baker should be able to refuse to bake a gay wedding cake.

  • David Nieporent||

    Lathrop hates speech, and has this idea that it's unfair for the government to be prevented from punishing people for their speech because private institutions are allowed to do so. He has argued that student free speech is actually a conservative plot to destroy public schools.

  • Stephen Lathrop||

    He has argued that student free speech is actually a conservative plot to destroy public schools.

    Nieporent would not hesitate to argue that a law for unrestricted speech freedom in a place of private business, or in a private school, would prove disruptive, contrary to protected rights, and ought not be allowed. It would not be outside the character of his commentary to suggest advocacy of any such law would amount to a plot to destroy those purposeful institutions.

    The nub of his argument in favor of contrary treatment for public schools is a pretension. Nieporent pretends that far from being purposeful institutions comparable to those private institutions from which he willingly excludes speech freedom as a matter of law and policy, public schools are, somehow, fonts of government policy destructive of liberty.

    To characterize public school administrators as dictators of public policy—instead of as pedagogues with responsibilities and challenges identical to those of their private school counterparts—is nonsense. For pointing that nonsense out, Nieporent says I hate speech.

    That, Nieporent, is me summarizing my own policy commentary. See, it's different than your summary.

  • NToJ||

    "The nub of his argument in favor of contrary treatment for public schools is a pretension. "

    I rather doubt that. Instead I suspect it's a combination of the 14th Amendment and the 1871 Civil Rights Act. Re: private schools, the same thing that requires public schools to adhere to free speech jurisprudence is what mandates that private institutions do not. It's the 1A, which applies with equal force to the associative rights of private universities, as it does to the intentionally limited powers of public universities.

    The rest of your comment just rests on a false premise. Public schools do not have "challenges identical to those of their private school counterparts". Because they have extra-pedagogical concerns, namely their responsibility as public institutions to adhere to laws limiting the powers of public institutions. (Of course, in this instance, their pedagogical function is improved by strict adherence to free speech, but you'll never be persuaded of that.)

  • QuantumBoxCat||

    Looks like Hunt exercised poor judgment in writing that initial post, given the policy in place by the university he was attending. Maybe he was unaware of the policy, but that itself is a bit worrying for a student that wants to go into medical practice as it displays a lack of diligence. Maybe he read the policy and didn't care; again, a bit worrying for someone who wants to practice medicine and exercise judgment and discretion.

    In short, his initial post seems more like the exercise of poor judgment by someone who wants to go into a profession where judgment is not just essential, but is directly related to another's health and life. I would expect such hyperbolic claims in an internet forum or comment section (such as a WW2/Nazi reference by paragraph four). I do not fault a medical school for expecting something more from its students, and future medical professionals. I would also expect blow back from those who can only see life in Red or Blue.

    Maybe some Originalism would be helpful here, given the importance placed on character by the country's early universities, and expressed in some of Jefferson's writings on education.

  • Eddy||

    A university which performs abortions babbling about "character"?

  • Eddy||

    If they wanted to teach character to physicians, they could start by reinstating the Hippocratic Oath and its ban on abortion.

  • Don Nico||

    The old "blame the victim" ploy.

  • NToJ||

    "Maybe he read the policy and didn't care; again, a bit worrying for someone who wants to practice medicine and exercise judgment and discretion."

    Maybe you hate poor people so much that you would limit doctors exclusively to those who had memorized university speech policies.

    "Maybe some Originalism would be helpful here..."

    Doctors weren't licensed by the states until after the 1st and 14th Amendments were ratified.

  • Stephen Lathrop||

    The credibility of this OP could be improved if Professor Volokh would author and publish an excoriation of a group of fellow attorneys, including,

    Disgusting, immoral, and horrific, you sick, disgusting people. You're abhorrent.

    You're WORSE than the Germans during WW2. Many of them acted from honest patriotism. Many of them turned a blind eye to the genocide against the Jews. Bur you're celebrating it. Supporting it. Proudly proclaiming it. You are a disgrace to the name of human.

    So, sincerely, fuck you, Moloch worshipping assholes.

    Unless Volokh can show that the defense of free speech is worthy of demonstration by unprofessional published utterances directed against his own profession, I am skeptical that he grasps the principles (including the free speech principles) he puts in jeopardy by invoking the 1A against professionalism generally.

    Of course, the demonstration would be yet more persuasive if applied against selected members of the SCOTUS.

  • NToJ||

    There will be very little 1A protection in this world if its limits were "What I would publish". For instance, you wouldn't be allowed to speak at all.

  • Stephen Lathrop||

    There already is very little 1A protection. It is largely restricted to the public square, and to publishing, which together encompass a tiny fraction of day-to-day life. Speech uttered outside that compass gets no protection, for various reasons, or sometimes for no reason, but always because society has judged unfettered speech to be potentially too disruptive to be compatible with otherwise purposeful pursuits.

    I object to arguments which target for disruptive speech specific purposeful institutions which the arguments' authors want to attack for political purposes of their own—and I object especially if I note that double standards apply during the attacks—hence my challenge to Volokh to apply his own standard to his own profession.

    NToJ, I am at a loss to understand how your comment applies.

  • NToJ||

    I CAN SEE THAT BUDDY.

  • Stephen Lathrop||

    Speaking more generally, I am unpersuaded by any argument suggesting the 1A be used as a bulwark against professionalism at state-run institutions.

  • Eddy||

    Have you checked the revised post, which the university found inadequate?

  • Eddy||

    I *might* be tempted to credit the university's good faith (if not its constitutional bona fides) if they simply had him tone down the original post, but they rejected the revised post, as well, indicating that their objection was not just to the *way* in which he expressed his views, but to the views themselves.

    Bear in mind that physicians used to swear *never* to do that which the university does, viz, perform abortions.

  • Rev. Arthur L. Kirkland||

    Similarly, physicians used to use bloodletting, mercury, lobotomies, and trepanation, and universities prohibited blacks, gays, and women from studying medicine -- during the period guys like Eddy recall as the "good old days."

  • Eddy||

    "In Germany during the Third Reich, medical students did not take the Hippcratic Oath..."

  • ||

    An absolutely outrageous decision. It further illustrates why women have no business deciding anything even tangentially related to abortion, self defense, health care, or sexual assault. They're too emotionally involved.

  • Rev. Arthur L. Kirkland||

    How is the search for a wife going?

  • mad_kalak||

    Marriage, what's that, but a way to extract resources from a man for a promise of fidelity that doesn't have to be kept, and which can be withdrawn at any time with the flow of resources continuing.

  • Alpheus W Drinkwater||

    Their emotional involvement with self defense might be related to their emotional involvement with sexual assault.

  • mad_kalak||

    If you have a sister or mother or a wife or girlfriend, I would withdraw that bit about self defense. I would want one of those women in my life to be able to put a few rounds through a perp, even if it triggers her hypergamy.

  • Don Nico||

    Finally a clever comment, Rev.

  • ||

    while here I think the body of First Amendment law is clear enough that the plaintiff should have prevailed, I can see why a court might conclude otherwise.

    Obligatory: The Myth of the Rule of Law.

  • dcnm||

    It is so much worse than this. The school kicked Mr. Hunt out of the medical school with just a few months left before completing his studies (and after accumulation of ~$100,000 in debt). This action was retaliatory and politically motivated. The leadership at UNM is corrupt to the core, with no respect for the first amendment.

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