The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

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, "Shame!" Many have stood by in history during 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.