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).

Comments

[Krayt]

Boy, woke is struggling lately. First this, and now Hamburgler is no longer problematic.

[Scooter]

Given that some people are trying to claim that correctly identifying a biological male as 'male' qualifies as an attack, this is the correct ruling.

[Rev. Arthur L. Kirkland]

Donald Trump publicly called for "citizen's arrest" of the district attorney prosecuting him and of the judge conducting the trial, and disaffected right-wing law professors want to talk about . . . this. Twice.

Carry on, partisan hacks. So far and so long as your betters permit, that is.

[Scooter]

LOL, Meat.

Your Betters are watching.

And, taking notes.

[Dr. Ed 2]

You know, someone might actually do it. And then what?

If the person does it right -- uses enough stealth so the cops are blindsided instead of overpowered, and if the person says all the right legal mumbo jumbo, couldn't this become a really interesting legal mess????

[Rev. Arthur L. Kirkland]

These are your fans, Volokh Conspirators. And the reason legitimate schools such as UCLA don’t want you on campus, and you must slink off to clinger asylums.

[David Nieporent]

couldn’t this become a really interesting legal mess????

No. This has been yet another episode of Simple Answers to Stupid Questions.

[Dr. Ed 2]

Individual A has Tourettes and exhibits behavior (disruptive shouting, etc) that badly disrupts Individual B's ADHD.

Who wins?

Yes, any answer is going to have the word "reasonable" twisted through it fifteen different ways, but who wins? And I ask it like this because it's a medical issue that most people can see both sides of, so when we then go into psychological trauma from hateful words, it hopefully becomes clear the morass into which we tread....

[Religion and Politics, my life]

Since you cannot essay speech without first speaking, the law forces silence as your only claim to good will.

Next will be speaking at the wrong time, dissimulating innocence, aggressive non-silence. A law of utter stupidity.

[Aetiuz]

This policy is so obviously unconstitutional. Even the drafters of the policy know it's unconstitutional. But they don't care. It's great virtue signaling for them, and the policy will be in effect for at least a while. If it does gets tossed, so what? They made their point.

But here's the real kicker. There's a small, but not small enough, probability that the policy will be ruled constitutional. And they're betting on that.