Community College Ban on "Verbal Forms of Aggression … Harassment, Ridicule or Intimidation" Is Unconstitutionally Vague,

concludes a magistrate judge in recommendations to a federal district court.

[UPDATE 9/23/2024: The decision has been reversed for procedural reasons.]

From today's Report and Recommendations by Magistrate Judge Christopher D. Baker (E.D. Cal.) in Johnson v. Watkin:

BP 3050 serves as the [Kern Community College] District's policy on "Institutional Code of Ethics." BP 3050 provides that "all associates in the District, faculty, students, management, classified staff, and trustees, as well as volunteers and vendors, each bear personal responsibility for their own ethical behavior and for the ethical statute of our organization." BP 3050 requires "that [the community] conduct [itself] with civility in all circumstances of [their] professional lives" and does "not participate in or accept, condone, or tolerate physical or verbal forms of aggression, threat, harassment, ridicule, or intimidation." BP 3050 states it values a spirit of free inquiry and free speech and "encourages the expression of a range of points of view, but [expects] all expressions of content to be conducted in a manner respectful of persons." …

The Undersigned finds the term "verbal forms of aggression … harassment, ridicule or intimidation" has a likelihood of being impermissibly vague. The term lacks a commonly understood meaning and creates a policy that is broader than the civility policies District Defendants allege are similar.

What may be considered "verbal forms of aggression" can "[vary] from speaker to speaker, and listener to listener." This ambiguity invites the District to engage in viewpoint discrimination over what speech may constitute "verbal forms of aggression." See [record citation] (Plaintiff [history professor] was investigated for reposting [a colleague's] post on RIFL's Facebook page and adding "Here's what one critical race theorist at BC sounds like. Do you agree with this radical SJW from BC's English Department? Thoughts?"); compare [record citation] (Plaintiff alleges "[n]one of the members of the Board of Trustees disavowed Corkins' call" that "RIFL faculty are 'in that five percent we have to continue to cull. Got them in my livestock operation and that's why we put a rope on some of them and take them to the slaughterhouse'"). [RIFL is a faculty organization, the Renegade Institute for Liberty. -EV]

Plaintiff is represented by Alan Gura, Courtney Corbello, and Endel Kolde (Institute for Free Speech).