Free Speech

Ban on "Improper Language" at V.A. Is Unconstitutionally Viewpoint-Based

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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."

NEXT: Four Types of Supreme Court Punts

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  1. Not a lot of facts in the opinion so it’s difficult to understand the context of the confrontation but it appears the defendant confronted VA employees and may have threatened them he apparently threatened to fight them. The testimony seems to have been a little vague as well.

    If the confrontation was loud and in hearing of other staff or patients then it seems to me the use of “racial epithets” could clearly be “fighting words” especially if it was the nword and directed at an African-American or within hearing of African-Americans.

      1. Thanks. Sounds like the guy was being a first class jerk and claiming the right to do iit.

  2. “aligned with conventional moral standards and those hostile to them”

    Court against moral standards. Excellent.

    More “Golden Age” of 1A law.

  3. This is part of a larger issue — treat what essentially is a captive audience badly, and then resort to the cudgel of the criminal process when they vocalize about it.

    Our hospitals were becoming increasingly fascist before the current pandemic and many have gone full-bore fascist now. And a lot of this is sexual harassment — feminists bullying male patients.

    That, IMHO, is what you ought to be concerned about.

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