The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
So the Ninth Circuit (Judges Schroeder and Martha Berzon, and District Judge Salvador Mendoza, Jr. [E.D. Wash.]) just held this morning in U.S. v. Stagno. Our UCLA First Amendment Amicus Brief Clinic filed an amicus brief on behalf of the Pennsylvania Center for the First Amendment supporting this argument; congratulations to Delaney Gold-Diamond, a UCLA School of Law student who argued the case before the Ninth Circuit panel, and to her classmates Kendra Delaney and Caleb Mathena, who worked on the brief together with her (and thanks, as always, to Scott & Cyan Banister for their generous support of the Clinic).
The court affirmed the defendant's conviction, on the grounds that the error was harmless beyond a reasonable doubt; the amicus brief expressed no view on that question.
A federal regulation, 38 C.F.R. § 1.315(a)(5), provides (emphasis added):
Conduct on property which creates loud or unusual noise; which unreasonably obstructs the usual use of entrances, foyers, lobbies, corridors, offices, elevators, stairways, or parking lots; which otherwise impedes or disrupts the performance of official duties by Government employees; which prevents one from obtaining medical or other services provided on the property in a timely manner; or the use of loud, abusive, or otherwise improper language; or unwarranted loitering, sleeping, or assembly is prohibited.
The Ninth Circuit held that an instruction tracking this language was unconstitutional:
The government may regulate speech in VA clinics, which are nonpublic fora, so long as that regulation is reasonable and viewpoint neutral. But the jury instruction's inclusion of "otherwise improper language" as a basis for Stagno's disorderly conduct charge was viewpoint discriminatory under Iancu v. Brunetti (2019) [which struck down the exclusion of "immoral" and "scandalous" marks from trademark registration, in a case involving the mark FUCT -EV].
"Improper" is commonly defined as "not in accord with propriety, modesty, good manners, or good taste," or "[n]ot in accordance with good manners, modesty, or decorum; unbecoming, unseemly; indecorous, indecent." Like the use of "immoral" and "scandalous" in the statute invalidated in Iancu, this application of "improper" impermissibly "distinguishes between two opposed sets of ideas: those aligned with conventional moral standards and those hostile to them; those inducing societal nods of approval and those provoking offense and condemnation." …
The jury instructions' limiting language—"tends to disturb the normal operation of the clinic"—was insufficient, on its own, to protect against a viewpoint-discriminatory application of the regulation. Without an additional instruction cabining the meaning of "otherwise improper language" according to the restrictions of the First Amendment, Stagno's jury was free to conclude that his speech was "improper" because the expression of "unbecoming [or] unseemly" viewpoints could "tend to disturb the normal operation of the clinic."