Corry v. Stanford


Cal. Super. Ct. Santa Clara County
Feb. 27, 1995, Decided




SUPERIOR COURT, STATE OF CALIFORNIA

COUNTYOF SANTA CLARA

ORDER ON PRELIMINARY INJUNCTION

ROBERT J. CORRY, et al., Plaintiffs v.

THE LELAND STANFORD JUNIOR UNIVERSITY


FACTUAL BACKGROUND

 
看看看看看看看看看看看 Plaintiffs filed this action on May 2, 1994 alleging that the Defendants have illegally been restricting Plaintiffs' free speech in violation of the 1st Amendment of the U.S. Constitution, 盼2 of Article 1 of the California Constitution, and California Education Code 盼94367.
看看看看看看看看看看看 Specifically, Plaintiffs allege that through Defendants' "Fundamental Standard Interpretation:Free Expression and Discriminatory Harassment" (hereinafter, the "Speech Code"), Defendants illegally interfere with Plaintiffs' rights to free speech on the basis of the content of the speech to be restricted.<p. 1>
Plaintiffs also allege that the Speech Code violates the Equal Protection Clause of the Fourteenth Amendment and the Due Process Clause of the Fifth and Fourteenth Amendments.For these reasons, Plaintiffs have filed this motion requesting that the Court issue a preliminary injunction against Defendants' Speech Code.
看看看看看看看看看看看 This Speech Code is "intended to clarify the point at which free expression ends and prohibited discriminatory harassment begins." [Ex. A, p.5, 3].As defined by the Speech Code, prohibited harassment includes "discriminatory intimidation by threats of violence and also includes personal vilification of students on the basis of their sex, race, color, handicap, religion, sexual orientation, or national and ethnic origin." [Ex. A, p.5, 3].
看看看看看看看看看看看 Speech or other expression constitutes harassment by personal vilification if it: a) is intended to insult or stigmatize an individual or a small number of individuals on the basis of their sex, race, color, handicap, religion, sexual orientation, or national and ethnic origin; and b) is addressed directly to the individual or individuals whom it insults or stigmatizes; and c) makes use of insulting or "fighting" words or non-verbal symbols. [Ex. A, p. 5-6, 4]. The Speech Code defines insulting or "fighting" words or non-verbal symbols as those "which by their very utterance inflict injury or tend to incite to an immediate breach of the peace, and which are commonly understood to convey direct and visceral hatred or contempt for human beings on the basis of their sex, race, color, handicap, religion, sexual orientation, or national and ethnic origin." [Ex. A, p. 6].
<p, 2> On 6-3-94, at the hearing on this motion, the parties stipulated that the Court's ruling on this matter would be the final decision at this court level.The matter was thereafter taken under submission.
 
INTRODUCTION:THE STANFORD SPEECH CODE
看看看看看看看看看看看 To summarize the parties' arguments, Defendants in this case maintain that the type of speech that the Speech Code proscribes is not protected under the Constitution.Defendants argue that the Speech Code only proscribes "fighting words," which are constitutionally permissible under the case of Chaplinsky v. New Hampshire (1942) 315 U.S. 568, 572.
看看看看看看看看看看看 Plaintiffs, on the other hand, maintain that this Speech Code is a violation of their First Amendment rights to free speech under the U.S. Constitution.Relying on the case of R.A.V. v. City of St. Paul (1992) 112 S.Ct 2538, Plaintiffs argue that Defendants' Speech Code seeks to prohibit speech on the basis of its content and therefore is constitutionally impermissible.
看看看看看看看看看看看 It must be noted, however, that the "First and Fourteenth Amendments safeguard the rights of free speech and assembly by limitations on state action, not on action by the owner of private property . . .." [Lloyd v. Tanner Corp. (1972) 407 U.S. 551, 567]. The protections of the First Amendment prevent abridgment of speech by state actors only.In this case, however, Defendants are private parties.The Supreme Court has declined to characterize private universities as state actors even though the "universities were publicly funded, publicly regulated, and performed a public function, and even though other nexus existed between the state and the university." [Vince Herron, "Increasing the Speech:Diversity, Campus <p. 3> Speech Codes, and the Pursuit of Truth," 67 S.Cal. Law Review, 407, citing Rendell-Baker v. Kohn (1982) 457 U.S. 830].Accordingly, Defendants argue that since they are private parties, the First Amendment protects their speech rights, and does not prohibit them from doing anything at all.
看看看看看看看看看看看 In response, however, Plaintiffs maintain that California Education Code 盼94367 (hereinafter, "the Leonard Law") allows a private university student to have the same right to exercise his or her right to free speech on campus as he or she enjoys off campus. This code section specifically allows a private student to commence a civil action for any violations thereof.It is Plaintiffs' position that this code section enables them to take action against Defendants' Speech Code, despite the fact that Stanford is a private party.
看看看看看看看看看看看 However, Defendants maintain that even if the Speech Code infringes upon Plaintiffs' protected speech off campus, the Leonard Law's command that Stanford must tolerate such speech on its campus would violate Stanford's First Amendment right to be free of State regulation with respect to its speech.Accordingly, it is Defendants' position that the Leonard Law would be unconstitutional as applied to Defendants' Speech Code in a number of ways.
看看看看看看看看看看看 In summarizing the parties' arguments, therefore, a two-part analysis is necessary for a proper determination of this motion.The first issue involves the constitutionality of Defendants' Speech Code. The Court must first decide whether the Speech Code abridges speech which the U.S. Constitution seeks to protect outside of campus.If the answer is "no," then the analysis ends and Plaintiffs' motion for a preliminary injunction should be denied.On the other hand, if it is determined that the Speech Code is unconstitutional, then the <p. 4> second step of the analysis must be discussed:the constitutionality of the Leonard Law (Education Code 盼94367).This Court must then decide whether this code section violates Defendants' constitutional rights.If so, then this code section would be unconstitutional and inapplicable to the Defendants.If, on the other hand, the Court finds that the code section is constitutional and applicable to the Defendants, then this section would give the Court access to Stanford even though it is a private party and Plaintiffs' motion for a preliminary injunction should be granted.
看看看看看看看看看看看 This Court will address the two-part analysis separately below.
 
DISCUSSION I.THE CONSTITUTIONALITY OF DEFENDANTS' SPEECH CODE A.CONSTITUTIONALITY UNDER CHAPLINSKY AND LATER LINE OF CASES
看看看看看看看看看看看 Defendants argue that the Speech Code only proscribes gutter epithets that are fighting words and that under Chaplinsky v. New Hampshire (1942) 315 U.S. 568, such words are not subject to constitutional protection.In Chaplinsky, the Supreme Court upheld a conviction under New Hampshire speech statute which prohibited offensive or annoying words on public streets.The Court, basing its decision on the state court's narrow interpretation of the statute, held that "fighting words," those words "which by their very utterance inflict injury or tend to incite an immediate breach of the peace," did not enjoy First Amendment protection. [Id. at 571].
看看看看看看看看看看看 The court reasoned that the statute had been appropriately applied to Mr. Chaplinsky, who had called a city official a "God damned racketeer" and a "damned Fascist," since his words would have "likely provoked the average person to retaliate, and thereby cause a <5> breach of the peace." [Id. at 574].In this case, Defendants argue that their Speech Code comports with the standard set forth in Chaplinsky, supra, since the Speech Code explicitly sets out the fighting words test in its regulations. [Complaint, Ex. A, at 5].
看看看看看看看看看看看 Defendants further argue that this Speech Code is "meant to insure that no idea as such is proscribed, and accordingly it does not prohibit the expression of any view, however racist, sexist, homophobic, or blasphemous in content." [Opposition, at 3:1-2]. Rather, Defendants state that the Speech Code "draws the line at fighting words . . .."[Id. 3:3].Such an argument is persuasive since vilifying a student with racial epithets, for example, would clearly have the effect of likely provoking the average person to retaliate and of inflicting injury by their very utterance.If phrases such as "God damned racketeer" and "damned Fascist" are "no essential part of any exposition of ideas . . ."[Chaplinsky, at 572], then certainly words which the Defendants seek to proscribe (such as "damned nigger", etc.) should not enjoy constitutional protection.
看看看看看看看看看看看 Plaintiffs' gravamen, however, does not lie with any desire to vilify another student with "gutter epithets."Instead, it appears that Plaintiffs' Complaint rests on the argument that Defendants' Speech Code, as drawn, goes beyond fighting words and, in effect, proscribes the expression of particular ideas and constitutionally protected speech.[Complaint, 10:24-25].Plaintiffs partly base this claim on the rationale that the Chaplinsky holding has now been significantly narrowed to apply to only fighting words whose "utterance is likely to lead to immediate violence."Such a claim, if valid, would undermine the constitutionality of the Speech Code since, <6> as Plaintiffs argue, it prohibits "insults" and "offensive speech", not just "words that make people fight."[Complaint, 10:13-14].
看看看看看看看看看看看 Plaintiffs' argument has merit.A review of authority reveals that there has been an apparent narrowing of the Chaplinsky doctrine.For example, in Terminiello v. Chicago (1949) 373 U.S. 1, the Supreme Court reversed petitioner's conviction under a breach of the peace ordinance which the trial court had interpreted to include speech which "stirs the public anger [or] invites dispute," as well as speech which creates a disturbance.Although the petitioner's criticism of political and racial groups had caused several disturbances among spectators, the court found that such words, "unless shown likely to produce a clear and present danger of serious substantive evil that rises far above public inconvenience, annoyance, or unrest," could not be proscribed.[Id. at 6].As Justice Douglas noted: [A] function of free speech under our system of government is to invite dispute.It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. [Id.]. In Terminiello, the Supreme Court reasoned that speech which "stirs the audience to anger" or "invites dispute" is protected under the First Amendment.
看看看看看看看看看看看 Additionally, in the case of Gooding v. Wilson (1972) 405 U.S. 518, the Supreme Court reversed petitioner's conviction under a Georgia abusive language statute after he had threatened and insulted two police officers.The Supreme Court found that even though the statute regulated only language which inflicts injury or affects the "sensibilities" of the hearer, it did not meet the requirements of the fighting words doctrine because it was not limited to words which <p. 7> "tend to cause an immediate breach of the peace."[Id. at 524].The Court found that the statute was not limited to words that would have a direct tendency to cause acts of violence by the person to whom, individually, the remark was addressed.
看看看看看看看看看看看 Thereafter, in Lewis v. City of New Orleans (1974) 314 U.S. 130, the Supreme Court remanded a conviction under a Louisiana statute that banned the use of obscene language toward any police officer in the line of duty.Even though the state court held that the law prohibited only "fighting words," the Supreme Court found that, in light of Gooding, supra, the statute was unconstitutionally overbroad since "obscene" and "opprobrious" words regulated under the statute "may well have conveyed anger and frustration without provoking a violent reaction from an officer."[Id. at 135].
看看看看看看看看看看看 More recently, in the case of UWM Post v. Board of Regents of U. of Wisconsin (1991) 774 F. Supp. 1163, the Court stated that "since Chaplinsky, the Supreme Court has narrowed and clarified the scope of the fighting words doctrine . . . to include only words which tend to incite an immediate breach of the peace."[Id. at 1170].lIn addition to limiting the scope of the fighting words to words which tend to incite an immediate breach of the peace, it appears that a more stringent definition of "breach of the peace" has been set forth. Referring to the Gooding case, the Supreme Court stated that ". . . in order to constitute fighting words, speech must not only breach decorum but also must tend to bring the addressee to fisticuffs." ____________________ {1It must be noted that the Chaplinsky court originally set out a two-part definition for fighting words:1) words which by their very utterance inflict injury; and 2) words which by their very utterance tend to inflict an immediate breach of the peace. [Chaplinsky, 315 U.S. at 571-572].} <p. 8> [UWM Post, at 1171, citing Gooding at 527].Consequently, in UWM Post, the Court found that since the elements of the UWM Rule did not require that "the regulated speech, by its very utterance, tend to incite violent reaction, the rule [went] beyond the present scope of the fighting words doctrine."[UWM Post, at 1172].
看看看看看看看看看看看 In sum, therefore, based upon the line of cases following Chaplinsky, supra, it appears that the Court has, in effect, narrowed the Chaplinsky definition of fighting words to eliminate the "inflict injury" prong of the test.As such, under this narrowed version of Chaplinsky, Defendants' Speech Code presumably proscribes more than "fighting words" as defined in subsequent case law.On its face, the Speech Code prohibits words which will not only cause people to react violently, but also cause them to feel insulted or stigmatized.As discussed above, however, Defendants cannot proscribe speech that merely hurts the feelings of those who hear it.
看看看看看看看看看看看 The Speech Code also punishes words that "are commonly understood to convey" hatred and contempt on the basis of race, religion, etc.Clearly, this focuses upon the content of the words. All that is required under the Speech Code is that the words convey a message of hatred and contempt, not that they will likely cause an imminent breach of the peace.By proscribing certain words, without even considering their context, i.e., whether under a given situation there will be a breach of the peace, Defendants' Speech Code fails to meet the "fighting words" standard as set forth under Chaplinsky, supra, and the later line of cases.As written, the Speech Code clearly punishes students for words which may not cause an imminent breach of the peace, but instead merely "conveys a message of hatred and contempt." To this extent, the Speech Code is overbroad since it <p. 9> is conceivable that a student could be punished for speech that did not (and would not) result in immediate violence.As a result, due to its overbreadth, Defendants' Speech Code cannot pass constitutional scrutiny.
 
B.CONSTITUTIONALITY UNDER R.A.V. V. CITY OF ST. PAUL
1. The Claims of the Parties.
看看看看看看看看看看看 Even assuming, arguendo, that all the expressions under the Speech Code are proscribable under the "fighting words" doctrine, under R.A.V. v. City of St. Paul (1992) 112 S.Ct. 2538, the Speech Code would still be unconstitutional if it proscribes speech on the basis of the content and speech addresses.
看看看看看看看看看看看 Plaintiffs claim this is exactly what Defendants' Speech Code does.Plaintiffs argue that the Speech Code, similar to the ordinance in R.A.V., supra, is an impermissible content-based regulation, since it does not proscribe all fighting words, but only those which are based upon sex, race, color, and the like.Plaintiffs state that such "hostility" or "favoritism" towards the underlying message expressed is unconstitutional."The First Amendment forbids such selective incorporation."Plaintiffs' Complaint, 4:4].
看看看看看看看看看看看 Defendants, on the other hand, argue that R.A.V., supra, is not applicable here since, unlike the ordinance in R.A.V., supra, Defendants' Speech Code is directed toward conduct (discriminatory harassment), not speech.[Defendants' Answer 17:6].Discriminatory harassment, Defendants assert, includes personal vilification by means of fighting words/gutter epithets. [Id. at 17:7].Defendants, citing R.A.V., supra, and Wisconsin v. Mitchell (1993) 113 S.Ct. 2194, contend that where a regulation is directed toward conduct, the expression can be "swept up incidentally" without violating First <p. 10> Amendment rights. [Id. at 17:9-10].
看看看看看看看看看看看 In the alternative, Defendants argue that even if their Speech Code is directed to speech and not conduct, the Speech Code is still constitutional because it falls under the exceptions enumerated in R.A.V., supra.Each of these arguments is addressed below.
2.The Case of R.A.V.
看看看看看看看看看看看 In R.A.V., supra, the Supreme Court struck down a St. Paul "bias motivated hate crime" ordinance which made it a misdemeanor to place on private or public property a symbol which one knows, or has reasonable grounds to know, arouses anger in others on the basis of race, color, creed, religion or gender.[R.A.V. at 2541].
看看看看看看看看看看看 The majority accepted the Minnesota Supreme Court's construction of the ordinance as only applying to "fighting words," an area of speech traditionally unprotected.Nevertheless, the Court found the ordinance unconstitutional since it did not proscribe all fighting words, but only those based on the categories listed in the ordinance.[Id. at 2550].
看看看看看看看看看看看 The Court reasoned that such selectivity created the very real possibility that "the city [wa]s seeking to handicap the expression of particular ideas," and not fighting words in general. [Id. at 2549].The Court did hold that the government could still prohibit fighting words so long as the proscription was unrelated to the distinct message contained in the expression.[Id. at 2541]. Thus, as the majority noted, libel could be proscribed, but not libel only critical of the government.[Id.].
看看看看看看看看看看看 In the case at hand, a close examination of Defendants' Speech Code reveals that Plaintiffs' position is compelling.Similar to the ordinance in R.A.V., supra, Defendants' Speech Code only <p. 11> proscribes a select class of fighting words:insults aimed at sex, race, color, handicap, sexual orientation, national or ethnic origin. Here, the same dangers the majority warned against exist.Defendants' Speech Code singles out a limited type of proscribable expression from a broad range of proscribable expression.Fighting words directed toward race and the like are punishable, yet those directed toward political affiliation, for example, are not.As Plaintiffs note, "Insults no matter how vicious or severe, are permissible unless they are addressed to one of the specified disfavored groups." [Plaintiffs' Complaint, 4:1-2].Defendants, it would appear, have prohibited certain expression based on the underlying message.This is the type of content-based regulation the Court in R.A.V., supra, found impermissible under the First Amendment.
看看看看看看看看看看看 As Justice Scalia, writing for the majority, analogized, fighting words are like a noisy sound truck.Like a truck, fighting words can be proscribed based on their mode of communication, but not on the underlying message.[R.A.V. at 2545].That is, a government could regulate the noise level of the truck because the loudness of the truck's microphone is a non-speech element mode of communication. However, the truck's underlying message could not be proscribed since the regulation would be aimed at the expression conveyed by those microphones.[Melody L. Hurdle, "Fighting Words Doctrine," in Vanderbilt Law Review, Vol. 47:1143,1158 (1994)].Similarly, Defendants' Speech Code does not target the method used to convey the message, but targets the content of certain speech, and this, under the above standards, would constitute an unconstitutional proscription on speech. <p. 12>
3.Whether Defendants' Speech Code Falls Under An Exception.
看看看看看看看看看看看 Defendants, nevertheless, claim that their Speech Code is constitutional because:1) it is directed toward conduct, and 2) if it is not, it falls under the exceptions enumerated in R.A.V., supra. Each of these arguments are addressed below.
A)Whether Defendants' Speech Code Is Directed Toward Conduct.
看看看看看看看看看看看 Although conceptually similar to the fourth exception enumerated in R.A.V., supra, a brief discussion is warranted since Defendants raise this point separately.Defendants, as mentioned earlier, claim that their Speech Code is directed at prohibiting discriminatory harassment and not speech per se.
看看看看看看看看看看看 The Court in R.A.V., supra, stated that its holding did not preclude regulation of subcategories of proscribable speech when such regulations are aimed at conduct.[R.A.V. at 2546].Thus, as the Court noted, sexual derogatory fighting words can be banned from the workplace because it would produce a violation of Title VII's general prohibition against sexual discrimination, a particular type of conduct.[Id. at 2546].In essence, such words would be "swept up incidentally within the reach of a statute aimed at conduct rather than speech." [Id.].
看看看看看看看看看看看 As it can be discerned from the above analysis, the Court, however, found the St.Paul ordinance was not directed toward conduct, but sought to prohibit certain fighting words.Similarly, as Plaintiffs note, there is little evidence in the record which indicates Defendants' Speech Code is aimed at conduct.[Plaintiffs' Response, 11:5-6].Examination of the Speech Code reveals no mention of conduct or harassment as being proscribed.Rather, what is addressed is the prohibition of a certain category of expression which <p. 13> may result in a breach of the peace.Speech, in this respect, is not swept up incidentally, but is the aim of the proscription.It appears, therefore, that Defendants' claim is without merit.
看看看看看看看看看看看 Plaintiffs also argue that Defendants' reliance on Wisconsin, supra, to support their case here is inapposite to the facts at hand. Wisconsin, supra, dealt with a constitutional challenge to a penalty enhancement provision for battery offenses that were motivated by racial, color, or religious bias.The Supreme Court upheld the provision stating that, "[t]he First Amendment does not erect a per se barrier to the admission of evidence concerning defendant's beliefs at the sentencing phase, simply because those beliefs are protected by the First Amendment."[Wisconsin at 2198 (emphasis added)].The Court noted that sentencing judges traditionally have considered a wide variety of factors, "in addition to evidence bearing on guilt," in determining a sentence.[Id. at 2197].
看看看看看看看看看看看 Clearly, Defendants' Speech Code is dissimilar to the provision in Wisconsin, supra.Here, Defendants do not consider racial, religious prejudice and the like at the sentencing stage, but rather a priori proscribe the content of certain expression.For this reason, Plaintiffs correctly argue that the Wisconsin, supra, rationale is inapplicable to the case at hand.
B)Whether Defendants' Speech Code Falls Under An Exception Enumerated In R.A.V.?
看看看看看看看看看看看 Pursuant to R.A.V., supra, Defendants list five exceptions which they claim their Speech Code falls under.However, Plaintiffs are correct that these exceptions fail to remove the Speech Code from the ambit of R.A.V., supra.The exceptions are as follows: <p.14>
1.Situation Where The Entire Class Of Speech Is Proscribable.
看看看看看看看看看看看 First, if the content discrimination is based on the same reason that an entire category of speech is excluded from First Amendment protection, such discrimination is constitutionally permissible.To illustrate this point, Justice Scalia noted, for instance, that a state could choose to prohibit only that obscenity which is the most patently offensive in its prurience, i.e., the most lascivious displays of sexual activity, but it could not prohibit obscenity which includes offensive political messages.[Id. at 2544]. It would appear, therefore, that a state could either prohibit a whole category of unprotected speech, i.e., obscenity in general, or proscribe a sub-class of unprotected speech where it represents the most extreme reason why the whole category is unprotected in the first place.Thus, as Scalia illustrates, the Federal Government could criminalize only those threats of violence that are directed at the President since the reasons why threats of violence are outside the First Amendment (protecting individuals from fear of violence, from the disruption that fear engenders, etc.) have special force when applied to the President.[Id. at 2544].
看看看看看看看看看看看 The majority concluded that the St. Paul ordinance did not regulate a category of fighting words based on the same reason that the entire category of fighting words was proscribable. [R.A.V. at 2548].The Court explained that fighting words are categorically excluded from First Amendment protection because of their intolerable mode of communication; i.e., manner of expression and not because of any idea they communicate.Justice Scalia argued that since St. Paul did not proscribe or single out an especially offensive mode of expression (i.e., prohibit only those fighting words that communicate <p. 15> in a threatening--as opposed to merely obnoxious--manner), but instead proscribed the specific message that was expressed, regardless of the manner of communication, the ordinance was not a constitutionally valid regulation.[Id. at 2548-9].
看看看看看看看看看看看 Applying this to the case at hand, as Plaintiffs claim, it is clear that Defendants' Speech Code "incorporates the same infirmities as did the St. Paul ordinance - it proscribes a subset of fighting words only."[Plaintiffs' Response, 11:26-28].Defendants' Speech Code does not proscribe all fighting words nor does it single out an especially offensive mode of expression.
看看看看看看看看看看看 Defendants could have easily prohibited those fighting words that communicated ideas in a very threatening manner without focusing on the underlying messages or ideas expressed.Instead, Defendants specifically made certain value judgements and chose to proscribe only fighting words that communicate messages of racial, gender, etc. intolerance, regardless of the mode of expression.No doubt, this type of "selectivity" creates the possibility that Defendants are seeking to "handicap the expression of particular ideas."[R.A.V. at 2548].Defendants' Speech Code, in this respect, cannot be said to fall under the first exception.
2.Where the Subset is More Likely to Provoke Retaliatory Violence
看看看看看看看看看看看 The second exception involves a situation where the sanctioning authority believes that the subset is "more likely [other than fighting words] to provoke retaliatory crimes, inflict emotional havoc on their victims, and incite community unrest." [Wisconsin v. Mitchell (1993) 113 S.Ct. 2194, 2201].Plaintiffs, however, validly argue that Wisconsin, supra, distinguished R.A.V., supra, on the grounds that the Wisconsin statute was aimed at conduct (specifically <p. 16> criminal conduct) unprotected by the First Amendment, not speech as was the case in R.A.V., supra.Where the state correctly anticipates that the conduct is more likely to provoke retaliatory violence, an enhanced punishment may be added to conduct which is a priori illegal.
3.Where the Subset is Directed at Certain Persons or Groups
看看看看看看看看看看看 The third exception is where the proscribed subset is "directed at certain persons or groups."However, Plaintiffs validly argue that the "directed at" requirement does not, on its own, make an unconstitutional Speech Code facially constitutional.The R.A.V. Court expressly recognized that a prohibition against fighting words that are directed at certain persons "would be facially valid if it met the requirements of the Equal Protection Clause . . .."[Id. at 2548].Defendants' Speech Code does not satisfy these requirements.
4.Secondary Effects of Speech.
看看看看看看看看看看看 Defendants' assertion of the fourth exception also appears to be without merit.As a fourth exception, citing Renton v. Playtime Theaters (1986) 475 U.S. 41, the majority in R.A.V., supra, stated that a government could treat a content-defined subclass of speech differently if the government was concerned with "secondary effects" associated with the particular subclass, rather than the offensiveness of the content.[Id. at 2546].For instance, in Renton, supra, the Court stated that the city of Renton was able to place adult theaters 1000 feet away from residences because it sought to curb the harmful secondary effects of crime, lower property values, an unhealthy retail industry, etc., as opposed to suppressing the content of adult movies. [Renton at 47].
看看看看看看看看看看看 Similar to St. Paul's assertions, Defendants in this case argue that their Speech Code is directed toward secondary effects, <p. 17> namely to protect the victimization/personal vilification of persons who have historically been subjected to discrimination.The Court in R.A.V., supra, however, rejected such an argument.Justice Scalia stated that a listener's reaction to offensive speech is not a legitimate secondary effect; the emotive impact is not secondary. [R.A.V. at 2549].Thus, despite Defendants' contention that feelings of fear and intimidation suffered as a result of discriminatory speech should be considered legitimate secondary effects worthy of regulation, such a line of reasoning is untenable in light of the above holding.Despite what Defendants' conscience might tell them, the emotive impact of speech, regardless of the emotional pain, is not secondary.As a consequence, Defendants' Speech Code also does not fall under the fourth exception enumerated in R.A.V., supra.
5.Where No Official Suppression of Ideas is Afoot
看看看看看看看看看看看 The fifth exception involves a situation were "there is no realistic possibility that official suppression of ideas is afoot," for example, where "at its core the proscribed subset inflicts pain on its victim and the subset's expressive element is incidental at best." [Defendants' Memo, p. 18-19].However, as the R.A.V. court recognized, "[i]t hardly needs discussion that the ordinance does not fall within some more general exception permitting all selectivity that for any reason is beyond the suspicion of official suppression of ideas." [Id. at 2549 (emphasis in original)].Defendants' Speech Code, which attacks directly the expressive elements in communicative speech, is similarly infirm.
C)Strict Scrutiny
看看看看看看看看看看看 Additionally, the majority in R.A.V., supra, noted that even if the St. Paul ordinance was a content-based restriction on <p. 18> expression, the ordinance could still be held constitutional if the city could overcome a strict scrutiny standard of review.That is, if St. Paul could show:1) a compelling governmental interest supported the ordinance, and 2) the ordinance was narrowly tailored to serve that interest; i.e., the content discrimination was necessary to further the compelling interest.
看看看看看看看看看看看 In applying this standard of review, the Court acknowledged that the ordinance supported a compelling interest because it sought to protect individuals, society at large, from various hateful discrimination.[Id. at 2549-50].Nevertheless, the majority found that the means employed went beyond what was necessary to serve that interest.[Id. at 2550].Justice Scalia noted that the city had various other means at its disposal to prevent such discrimination. For instance, St. Paul could have charged the defendant with terroristic threats, arson, or criminal trespass to property.[Id. at 2541].A content-neutral ordinance prohibiting all fighting words could also have been drafted.[Id. at 2549].As such, the Court found that the St. Paul ordinance failed to meet strict scrutiny review.
看看看看看看看看看看看 Similarly, it is arguable that the Defendants have other means at their disposal to prevent the type of harassment they seek to regulate.For example, Defendants could continually press upon their students through their school calendars and handbooks, etc., the need to be respectful of each other.Defendants could implement programs to educate students against discrimination.Defendants also might through various campus media or sponsorship of events, i.e., guest speakers, movies, book readings and reviews, roundtable discussions, forums, panels, field trips, essay contests, etc., promote diversity <p. 19> and tolerance among students.A penalty enhancement scheme along the lines of Mitchell might also be a means of eradicating racism and hate on campus without "adding the First Amendment to the Fire."[Id. at 2550].The list is not exhaustive, and as long as there are other reasonable means to further the compelling interest of combatting discrimination, Defendants are not able to meet the strict scrutiny standard under R.A.V., supra.
C.CONCLUSION
In conclusion, Defendants' Speech Code cannot withstand the analysis and the holding in R.A.V., supra.The Speech Code prohibits speech based on the content of the underlying expression and is not directed at conduct.It punishes those who express views on the disfavored subjects of race, gender and the like, yet permits fighting words which do not address these topics.It is also not aimed at secondary effects.Lastly, the Speech Code does not meet strict scrutiny judicial review.For these reasons, therefore, Defendants' Speech Code appears to be in violation of the principles of the First Amendment.
 
II.THE APPLICABILITY AND CONSTITUTIONALITY OF EDUCATION CODE 盼94367 ("THE LEONARD LAW")
看看看看看看看看看看看 The next step in the analysis is a determination of whether the court has standing to take action against Stanford, who is a private party.The protections of the First Amendment prevent abridgement of speech by state actors.Defendants state that as private parties, the First Amendment protects their speech rights and does not prohibit them from doing anything at all.The "First and Fourteenth Amendments safeguard the rights of free speech and assembly by limitation on state action, not on action by the owner of private <p. 20> property . . .."[Lloyd v. Tanner Corp. (1972) 407 U.S. 551, 567 (emphasis added)].
看看看看看看看看看看看 In response, however, Plaintiffs argue that the courts have standing to take action against Defendants through the enforcement of the Leonard Law (Education Code 盼94367).Specifically, this code section states as follows:
(a) No private postsecondary educational institution shal*** make or enforce any rule subjecting any student to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside the campus or facility of a private postsecondary institution, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article 1 of the California Constitution.
(b) Any student enrolled in a private postsecondary institution that has made or enforced any rule in violation of subdivision (a) may commence a civil action to obtain appropriate injunctive and declaratory relief as determined by the court.Upon motion, a court may award attorney's fees to a prevailing Plaintiff in a civil action pursuant to this section.
Pursuant to this statute, a private university student has the same right to exercise his or her right to free speech on campus as he or she enjoys off campus.The Leonard Law specifically allows a private student to commence a civil action for any violation of this code section.As such, it is Plaintiffs' position that the court has standing to take action against Defendants in this case through the application of 盼94367.
看看看看看看看看看看看 Since it has been determined in Section I that the Speech Code is unconstitutional, the next step in the analysis is the applicability and constitutionality of Education Code 盼94367.It is Defendants' position that even assuming that Plaintiffs' "fighting words" are protected speech off campus, with the effect that 盼94367 requires Stanford to permit them on campus, Education Code 盼94367 would be unconstitutional as applied to Defendants' Speech Code in <p. 21> four independently sufficient ways.These arguments are addressed below.
A.OTHER CASES CONSTRUING SIMILAR STATE STATUTES
看看看看看看看看看看看 As evidenced by both parties' supplemental papers, it does not appear that any other state has enacted a statute similar to Education Code 盼94367, i.e., the Leonard Law, and, neither before the Leonard Law, had California.Therefore, this is a paucity of appellate guidance directly on point.
看看看看看看看看看看看 Plaintiffs raise an interesting proposition in their papers regarding this issue.Plaintiffs argue that every state law which seeks to regulate private actors embodies the same principles as the Leonard Law:a legislative determination that the actions being conducted by the private actor are sufficiently important to the interests of the people of that state such that regulation is appropriate.Plaintiffs maintain that the court need look no further than state civil rights, sexual harassment, and workplace protection measures for examples.Virtually every law ever enacted by the California State legislature has the intent and effect of impacting private actors and associations in some manner.Plaintiffs state that these laws, like the Leonard law, are designed to enhance the welfare of the people of the state of California and are fully constitutional exercises of the broad police powers of the State.
看看看看看看看看看看看 Plaintiffs suggest that the Unruh Civil Rights Act, Cal. Civ. Code 盼51, et seq., is one such example which is similar in operation to the Leonard Law.The Unruh Act guarantees that all citizens of California enjoy the equal protection of the laws, whether within a state forum or within a private business establishment.The United States Supreme Court has upheld the Unruh Civil Rights Act <p. 22> against an identical attack to that which Defendants here have launched:"Application of the Unruh Act to California Rotary Clubs does not violate the right of expressive association afforded by the First Amendment."[Board of Directors of Rotary Int'l v. Rotary Club (1987) 481 U.S. 537, 549].Plaintiffs maintain that if this court were to declare unconstitutional the Leonard Law, such a decision would not only be contrary to U.S. Supreme Court precedent, but it would sweep into its ambit countless other laws similar to the Unruh Act, rendering the State powerless to vindicate its citizens' interest in their constitutional rights.
B.APPLICABILITY OF EDUCATION CODE 盼94367 ("THE LEONARD LAW")
看看看看看看看看看看看 As discussed previously, the Leonard Law provides that "no private postsecondary educational institution shall make or enforce any rule subjecting any student to disciplinary sanctions solely on the basis of conduct that is speech . . . that, when engaged in outside the campus or facility of a private postsecondary institution, is protected from governmental restriction by the First Amendment . . .."[Education Code 盼94367(a)].In this case, it is undisputed that Defendant Stanford is a private postsecondary educational institution, and accordingly, the Leonard Law, by its terms, applies to Stanford.
看看看看看看看看看看看 Nevertheless, it is Defendants' position that the Leonard Law does not proscribe Defendants' Speech Code in any way.In support of this contention, Defendants re-assert the same arguments raised in connection with constitutionality of the Speech Code itself by arguing that the Speech Code merely prohibits one student from harassing other students by directly and intentionally and personally vilifying those others with fighting words/gutter epithets.Defendants argue that the Speech Code is intended to effectuate the University's commitment to <p. 23> equal opportunity and non-discrimination, and it is directed to conduct--"discriminatory harassment"--and not speech.Defendants maintain that to the extent that a subcategory of discriminatory harassment, fighting words/gutter epithets, is speech, the Speech Code simply sweeps it up, and proscribes it, incidentally, along with the Speech Code's general proscription of discriminatory harassment conduct.
看看看看看看看看看看看 Additionally, Defendants argue that although the Leonard Law applies to Stanford, it expressly does not proscribe the Speech Code because the Leonard Law expressly does not prohibit "the imposition of discipline for harassment . . . unless constitutionally protected." [Education Code 盼94367(e)].Discriminatory harassment based on race or sex is not constitutionally protected.[See Wisconsin v. Mitchell (1993) 113 S.Ct. 2194, 2200-2201].Nor is the subcategory of fighting words/gutter epithets by which discriminatory harassment is effected since fighting words are not constitutionally protected.Basically, Defendants apply the same arguments they previously raised in connection with the constitutionality of the Speech Code in support of their contention that the Leonard Law does not proscribe the Speech Code.They argue that R.A.V., supra, does not apply to a law directed to conduct that, like the Speech Code, simply sweeps up a particular subcategory of speech, like fighting words/gutter epithets.
看看看看看看看看看看看 In response, however, Plaintiffs persuasively argue that Defendants' assertion that the Speech Code prohibits conduct only and not speech is incorrect.The very sentences from which Defendants quote the "personal vilification language" of the Speech Code begin with "Speech or other expression . . . ."[Speech Code, p.5]. Furthermore, throughout the Interpretation, the Speech Code refers to <p. 24> "discriminatory harassment" as things such as "middle-of-the-night phone calls," "face-to-face verbal abuse," and "discriminatory statements."Accordingly, Plaintiffs validly state that the Speech Code, on its face, restricts speech, and as such, the Leonard Law does proscribe the Speech Code.
看看看看看看看看看看看 Additionally, Defendants also incorrectly argue that the Speech Code only restricts speech that is not constitutionally protected.As discussed previously, the Speech Code suffers from the following constitutional defects:1) it restricts speech other than that recognized by the Supreme Court as "fighting words," and 2) it is content-based, selecting for special treatment certain disfavored topics.Specifically, Defendants' Speech Code is content-based and very similar to that which was struck down by the Supreme Court in R.A.V., supra:
[T]he ordinance applies only to 'fighting words' that insult, or provoke violence, 'on the basis of color, creed, religion, or gender'.Displays containing abusive invective, no matter how vicious or severe, are permissible unless they are addressed to one of the specified disfavored topics . . ..The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects. [R.A.V. at 2547 (Emphasis added)].
看看看看看看看看看看看 In comparison, Defendants' Speech Code contains the following similar language:Discriminatory harassment includes speech and conduct which evince "contempt for human beings on the basis of sex, race, color, handicap, sexual orientation, or national and ethnic origin." [Speech Code, p. 6 (Emphasis added)].As the Court in R.A.V., supra, recognized, such restrictions go beyond mere content discrimination to actual viewpoint discrimination. [Id. at 2547-2548 ("[A]spersions upon a person's mother, for example, would seemingly be usable ad libitum in the placards of those arguing in favor of racial, <p. 25> color, etc., tolerance and equality, but could not be used by that speaker's opponents.")].
看看看看看看看看看看看 The case of Dambrot v. Central Michigan University (1993) 839 F. Supp. 477 further supports Plaintiffs' position. Dambrot, supra, provides a clear illustration of the application of R.A.V., supra, to a university speech code analogous to Defendants' Speech Code.In Dambrot, supra, a basketball coach was disciplined under a university policy that sought to prohibit fighting words of racial and ethnic content.In finding the code unconstitutional, the court held that R.A.V., supra, proscribed the code in that it "impose[d] upon a speaker the kind of 'special prohibitions' mentioned in R.A.V., supra, because he has spoken on an officially condemned topic."[Dambrot at 483].Furthermore, the code suffered from the same viewpoint discriminatory infirmities that plagued both the R.A.V., supra, ordinance and Defendants' Speech Code:only negative invocations of the proscribed words were actionable."So long as he speaks in a way which appears, from the viewpoint of the university's enforcers, to be either positive or neutral, the speaker is on safe grounds as far as the university is concerned." [Id. at 483].Finally, as do Defendants in this case, the Dambrot Defendants sought to defend the code as implicating offensive conduct, and only incidentally speech, which created an offensive environment.The court correctly concluded, however, that such a characterization could not remove the code from the ambit of R.A.V., supra. [Id. at 481-484].As stated by the Dambrot court: The First Amendment does not recognize exceptions for bigotry, racism, and religious intolerance or ideas or matters some may deem trivial, vulgar or profane. [Id. at 484, quoting Iota Xi Chapter of Sigma Chi v. George Mason University (1991) 773 F.Supp. 792, 795, quoting Texas v. <p. 26> Johnson (1989) 491 U.S. 397, 412].
看看看看看看看看看看看 In summary, where, as in R.A.V., supra, adequate content- neutral alternative exists, content discrimination is not reasonably necessary to achieve such goals.[Id. at 2550].Defendants cannot meet the burdens of this defense; lesser restrictive means (i.e., a Code not limited to the favored topics) are available to them.Based upon the discussion above, therefore, it appears that Education Code 盼94367 does apply to and proscribe Defendants' Speech Code.Under the Leonard Law, the mere maintenance of the Speech Code, independent of its having been enforced against individual Plaintiffs, confers sufficient standing to attack its validity.[See Education Code 盼94367(b)].
C.CONSTITUTIONALITY OF EDUCATION CODE 盼94367 ("THE LEONARD LAW")
看看看看看看看看看看看 As a final argument, Defendants maintain that even if the Leonard Law applies to and proscribes the Speech Code, this code section violates Stanford's First Amendment rights in four independently sufficient ways.It is Defendants' position that as private parties, the only First Amendment rights at issue in this case are theirs.Specifically, it is Defendants' position that the Leonard Law is unconstitutional for four reasons:1) compelled government access; 2) content based speech rule; 3) prohibition of Stanford's expression; and 4) interference with Stanford's right of association. Each of these arguments will be addressed separately below.
1.Compelled Government Access
看看看看看看看看看看看 Defendants argue that the First Amendment prohibits the State from requiring a private party to provide access for another's speech that the party disagrees with.Since "a government enforced right of access" necessarily favors one private party's speech at the <p. 27> expense of another's, it "inescapably dampens the vigor and limits the variety of public debate."[Miami Herald Publishing Co. v. Tornillo (1974) 418 U.S. 241, 257 (State cannot require newspaper to provide rebuttal space to candidates its editorials attacked)].
看看看看看看看看看看看 Defendants maintain that the right not to provide access to speech one disagrees with is enjoyed, fully, by private corporations. [Pacific Gas & Electric Co. v. Public Util. Comm. (1985) 475 U.S. 1]. In PG&E, a state law required PG&E to include a consumer's group's circulars in envelopes that contained bills PG&E sent its ratepayers. Notwithstanding that as a matter of state law the space in the envelopes was deemed owned by the ratepayers, the rule against "government compelled access" applied:The state could not require PG&E to "associate with speech with which . . . [it] may disagree . . .," nor advance any speaker's access "by burdening the expression of others [here PG&E]."[Id. at 15, 20].
看看看看看看看看看看看 In this case, Defendants argue that the rule against government compelled access applies with particular force here because 1) Stanford is not a for-profit corporation with merely a right to commercial free speech, but a University with academic freedom; and 2) Stanford does not simply disagree with the fighting words/gutter epithets the Leonard Law, by hypothesis, requires it to give access to.Defendants argue that those epithets offend the Fundamental Standard the University has embraced from its beginning.
看看看看看看看看看看看 Defendants further maintain that perhaps government- compelled access may be justified by a compelling government interest; however, Defendants state that none exists in this case.For example, the court found that the state's interest in affording a candidate access to a newspaper to explain his views on matters before the <p. 28> electorate was not compelling [Tornillo, supra, at 250-251, 257]; the state's interest in educating ratepayers as to matters relevant to rates was not compelling, notwithstanding the state's argument that the consumers would benefit by a "variety of views" [PG&E, supra, at 6]; also, the state's interest in prohibiting discrimination against disadvantaged groups, though compelling, did not justify the state's requiring the Ancient Order of Hibernians to permit gays to parade with it, or justify the state's requiring the KKK to permit blacks to parade with it; for a parade is speech, and the state cannot require a private party--even on public streets and to achieve equality--"to associate with speech with which . . . [it] may disagree." [New York County Board of Ancient Order of Hibernians v. Dinkins (1993) 814 F.Supp. 358, 368; Invisible Empire of the Knights of the Klu Klux Klan v. Mayor et al. of Thurmont (1988) 700 F.Supp. 281, 288].
看看看看看看看看看看看 Similarly, Defendants argue that the rule against government-compelled access laid down in the cases cited above a fortiori apply in this case as well.Defendants maintain that based upon the holdings in cases such as PG&E, supra, and Tornillo, supra, it does not appear as if a state can compel a private university, possessed with academic freedom, to give access to fighting words/gutter epithets that are "no essential part of any exposition of ideas," [Chaplinsky, supra, at 572], and that are "particularly intolerable and socially unnecessary," [R.A.V., supra, at 2544-2545]. For these reasons, Defendants maintain that the Leonard Law, to the extent that it compels government access, is unconstitutional.
看看看看看看看看看看看 In response, Plaintiffs argue that the cases relied upon by the Defendants are distinguishable from the present situation. Specifically, Plaintiffs argue that the PG&E court expressly <p. 29> illuminated the rationale behind the Court's decision to strike down as unconstitutional the right-of-reply statute at issue in Tornillo, supra:First, "[t]he statute purported to advance free discussion, but its effect was to deter newspapers from speaking out in the first instance; by forcing the newspaper to disseminate opponent's views, the statute penalized the newspaper's own expression" [PG&E, supra, at 10]; second, "Florida's statute interfered with this 'editorial control and judgment' by forcing the newspaper to tailor its speech to an opponent's agenda, and to respond to candidate's arguments where the newspaper might prefer to be silent."[Id.].In contrast, however, Plaintiffs maintain that the Leonard Law will not deter Defendants from speaking out (in fact, the Leonard Law expands the realm of speech), and it will not force Defendants to respond where they may prefer to remain silent.These differences render the Tornillo, supra, concerns inapposite here.Specifically, it appears that the Court's decision in Tornillo, supra, was predicated on prior restraint concerns and editorial control, not on the political content of the speech.
看看看看看看看看看看看 Similarly, the court in PG&E, supra, reiterated the same principles that moved the Tornillo, supra, court: But because access is awarded only to those who disagree with appellant's views and who are hostile to appellant's interests, appellant must contend with the fact that whenever it speaks out on a given issue, it may be forced . . . to help disseminate hostile views.Appellant 'might well conclude' that, under the circumstances, 'the safe course is to avoid controversy,', thereby reducing the free flow of information and ideas that the First Amendment seeks to promote.[Id. at 14]. Plaintiffs correctly argue that the only way that the PG&E facts would govern this case would be if the Leonard Law, where a controversy arose, licensed only the speech that Defendants currently restrict and <p. 30> prohibited all other speech.In that case, Defendants might well be forced into remaining silent for fear of having to provide equal air time to its opponents.However, Plaintiffs correctly state that the Law does no such thing; rather, it expands the realm of protected speech without forcing Defendants into silence for fear of reprisal. More speech will be engendered, thus fulfilling the dictates of the First Amendment.
看看看看看看看看看看看 Additionally, Defendants' attempt to hide behind the rubric of academic freedom does not support their compelled government access argument.The very sentence from which Defendants quote in Regents of the Univ. of Michigan v. Ewing (1985) 474 U.S. 214 undermines their position.It is interesting to note that Defendants eliminated (through the use of ellipses) the full text of the sentence: "Academic freedom thrives not only on the independent and uninhibited exchange of ideas among teachers and students, but also, and somewhat inconsistently, on autonomous decisionmaking by the academy itself." [Id. at 226, n.12 (emphasis added)].Academic freedom in the context of a university means the right "to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study."[Sweezy v. New Hampshire (1967) 354 U.S. 263].
看看看看看看看看看看看 In this case, however, Plaintiffs persuasively argue that unconstitutional restrictions on speech, when unrelated to course work, are not saved by the umbrella of academic freedom.In this case, the Leonard Law is not an attempt by the State to force Defendants to permit fighting words on their campus.Rather, it merely ensures that constitutionally protected speech not be restricted on Defendants' campus.As a result, Defendants' contention <p. 31> that Education Code 盼94367 is unconstitutional on the grounds that it provides compelled government access is unpersuasive.
2.Content Based Speech Rule
看看看看看看看看看看看 Laws related to the content of speech presumptively violate the First Amendment and are invalid unless they serve a compelling government interest.A law is content based unless it "serves purposes unrelated to the content of expression," and "even a regulation neutral on its face may be content based if its manifest purpose is to regulate speech because of the message it conveys." [Turner Broadcasting Services, Inc. v. FCC (1994) 114 S.Ct 2445, 2458- 59].
看看看看看看看看看看看 Defendants argue that the Leonard Law is not "unrelated to the content of expression," but is content based on its face and by definition:1) It requires Stanford to permit on campus speech whose content is "protected from governmental restriction" off campus [Education Code 盼94367(a)]; 2) it necessarily applies only to speech whose content Stanford disagrees with, indeed, only to speech whose content Stanford finds intolerable and therefore proscribes. Accordingly, Defendants argue that the Leonard Law is meant to provide access to "hate speech" whose content is supposedly not "politically correct" and that "former campus liberals" find offensive.As such, Defendants state that the law is content based on its face, and in its underlying purpose.Therefore, it is invalid absent a compelling State interest.
看看看看看看看看看看看 Defendants also state that the government has no legitimate interest, much less a compelling interest, in advancing one private party's speech by forcing another who disagrees with it to give access to it.To the contrary, Defendants argue that the government cannot-- <p. 32> in the name of promoting free speech or otherwise--burden one party's speech to advance another's.[Buckley v. Valeo (1975) 424 U.S. 1, 17].Defendants state that the Leonard Law silences what Stanford has to say--discriminatory harassment and fighting words/gutter epithets have no place on its campus--and licenses its students to vilify others on its campus with them.It is Defendants' position that no interest, much less a compelling interest, justifies the State to do that.
看看看看看看看看看看看 In response, Plaintiffs argue that because the Leonard Law "applies evenhandedly" to all who engage in speech on Defendants' premises, the Law is not content based. [See Heffron v. International Society for Krishna Consciousness, Inc. (1981) 452 U.S. 640, 649].As the court in Turner Broadcasting, supra, makes clear, the correct inguiry for determining whether a law is content-neutral is to investigate, from the perspective of the party against whom the law is directed, whether the law imposes "a restriction, penalty, or burden by reason of the views . . . the cable operator has selected or will select." [Id. at 2460].Plaintiffs argue that the Defendants are not penalized under the Leonard Law on the basis of the views they express; rather, students are entitled to engage in speech protected by the First Amendment, independent of the views expressed by Defendants.As such, the law is content-neutral in its application against Defendants.Plaintiffs are correct.
看看看看看看看看看看看 Plaintiffs also argue that Defendants' quotations from Buckley, supra, and Redgrave v. Boston Symphony Orchestra, Inc. (1989) 855 F.2d 888 are "cut and pasted" so as to hide the true statements of those courts.Both cases mention explicitly that the government may not compromise the speech rights of one group in order to enhance the <p. 33> voices of another, where the net effect is to restrict speech.[See Buckley at 17; see also Redgrave at 904]. Where, as here, the State has undertaken to restore constitutional speech protections otherwise available to its citizens, no such concerns are implicated.
看看看看看看看看看看看 What Defendants seem to ignore is that the Leonard Law does not give students access to speech in which they are not lawfully entitled to engage; the statute merely recognizes that the Supreme Court, as the final arbiter of the First Amendment, permits speech that Defendants have chosen to restrict on the basis of its content. Therefore, the only basis that the Defendants have to characterize the Leonard Law as content based is that they have implemented a content- based Speech Code and because the Law, by disallowing Defendants' content restrictions, necessarily sweeps into its ambit of protecting previously restricted speech.By definition, any law that seeks to restore protections that have been limited by another party necessarily brings the previously prohibited conduct under its protection; this does not, however, make the law content based.For these reasons, Defendants' argument that the Leonard Law is content based, and therefore unconstitutional, is unpersuasive.
3.Prohibition of Defendant Stanford's Expression
看看看看看看看看看看看 Defendants argue that the Speech Code proscribes discriminatory harassment, including fighting words/gutter epithets, and subjects students who use them to discipline.The Speech Code expresses their view that discriminatory harassment, including fighting words/gutter epithets, is literally intolerable to it and has no place on its campus.In fact, Defendants state that there is no way for Stanford to express that view and mean it, except by prohibiting discriminatory harassment and epithets and disciplining <p. 34> students who use them on campus.Accordingly, Defendants maintain that the Speech Code is expressive speech and the State cannot prohibit Stanford's expression of its idea absent a compelling interest.In this instance, however, Defendants maintain that the State has none.
看看看看看看看看看看看 First Amendment restrictions by the government are justified only where "the governmental interest is unrelated to the suppression of free expansion; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." [United States v. O'Brien (1968) 391 U.S. 367, 377].Plaintiffs maintain that the Leonard Law does not offend these standards.First, California's interest in the Leonard Law is unrelated to the suppression of free speech; in fact, it expands the realm of speech without favoring one side over the other.Further, even if the court were to accept Defendants' contention that the Speech Code, which on its face restricts speech, is itself a form of speech, the Leonard Law, unlike the Speech Code, is viewpoint neutral. The Leonard Law simply does not restrict speech or ideas in any way; Defendants have every opportunity to express freely any views.As such, the government in this case is not burdening one party's speech in order to enhance the relative position of another's. [See Buckley, supra, at 17].
看看看看看看看看看看看 The Leonard Law does not chill the speech and expression of Defendants, who can ardently and effectively express their intolerance for intolerance through wholly constitutional means.Defendants are a well-financed, well-organized, major international institution with ease of access to numerous forms of media, both on and off campus; the inability to punish a student under the Speech Code would not <p. 35> interfere with their ability to express their disapproval of any speech.
看看看看看看看看看看看 Additionally, Defendants incorrectly suggest that "academic freedom" provides them with carte blanche to do what they wish.Both Regents of University of California v. Bakke (1977) 438 U.S. 265 and Sweezy v. New Hampshire (1967) 354 U.S. 234, cases relied upon by the Defendants, discuss academic freedom in the context of academic decisions.The Speech Code, however, has nothing to do with any of the four academic freedoms the Supreme Court has established. Defendants control all academic course work, admissions process, and residential activities; these forums are more than ample to put into effect Defendants' desired "standards of civility and respect" which they desire to encourage.
看看看看看看看看看看看 Finally, it is also argued by Plaintiffs that the Leonard Law is premised upon the State's compelling interests in the education of its students.Plaintiffs argue that Defendants wrongly assert that Plaintiffs wish to hurl racial epithets at others.By effecting a prior restraint on student's non-fighting words, the Speech Code chills academic discourse and thus compromises the value of Defendants' students' education.Plaintiffs maintain that the State has a compelling interest in assuring that students are educated fully, and it has accomplished that goal through the least restrictive means available.For these reasons, therefore, Defendants' contention that the Leonard Law infringes upon its freedom of expression is unpersuasive, and it fails to render Education Code 盼94367 unconstitutional.
4.Defendant Stanford's Rights of Association
看看看看看看看看看看看 The First Amendment protects the freedom of association.
看看看看看看看看看看看 <p. 36> Case law indicates that the State offends the right of free association by preventing an association from effectuating "its basic goals" of "high ethical standards," [Board of Directors of Rotary Int'l v. Rotary Club of Duarte (1987) 481 U.S. 537, 548]; by preventing an association from "exclud[ing] individuals with ideologies or philosophies different from those of its existing members," [Roberts v. United States Jaycees (1984) 468 U.S. 609, 617- 618]; or by preventing an association from "protect[ing] [itself] 'from intrusion by those with adverse political principles.'" [Democrative Party of U.S. v. Wisconsin (1981) 450 U.S. 107, 122]. Indeed, there "can be no clearer example of an intrusion into the inherent structure or affairs of an association than a regulation that forces the group to accept members it does not desire." [Roberts, supra, at 623].Defendants maintain that this is particularly true when the association is a university:"The freedom of a university to make its own judgments as to education includes the selection of its student body."[Bakke, supra, at 312].
看看看看看看看看看看看 Defendants argue that to the extent that the Leonard Law prohibits Stanford from implementing its Speech Code by proscribing fighting words/gutter epithets on its campus, and from disciplining or excluding students who vilify others, the Leonard Law offends Stanford's right of freedom of association.
看看看看看看看看看看看 Expressive associational rights derive from the Court's recognition that the ability to associate with others is crucial to effective advocacy."[B]y collective efforts individuals can make their views known, when, individually, their voices would be faint or lost." [Citizens Against Rent Control v. City of Berkeley (1981) 454 U.S. 290, 294].In determining whether to extend First Amendment <p. 37> expressive associational rights to organizations, the crucial inquiry for the Court has been whether enforcement of the legislation in question would substantially alter a group's activities. [See Hishon v. King & Spalding (1984) 467 U.S. 69, 78].That is, the organization must be able to prove that its ability to advocate effectively the specific expressive viewpoints of the organization will be compromised. [See Rotary Club, supra (1987) 481 U.S. 537, 548]."The Court thus looks at the connection between the membership and the message." [Invisible Empire of the Knights of the Klu Klux Klan v. Mayor et al. of Thurmont, supra, (1988) 700 F.Supp 281, 289].As such, a court will refuse to protect an association's expressive rights unless the association is "organized for specific expressive purposes", [New York State Club, supra, 487 U.S. at 13], but there must also exist a logical nexus between the discriminatory practices of the group and its purpose or message. [Id.].
看看看看看看看看看看看 With respect to the expressive associational rights of Defendants, this Court must first determine the "specific expressive purpose," [New York State Club, supra], for which the University was founded.Plaintiffs submit that the mission of the University is to provide its students with a comprehensive liberal arts education in which controversial ideas and presuppositions are subject to academic scrutiny, challenged by others in an effort to expand the critical reasoning skill of its students.Stanford is committed to the principals of free inquiry and free expression.Students have a "right to hold and vigorously defend and promote their opinions . . .. Respect for this right requires that students tolerate even expression of opinions which they find abhorrent."[Speech Code at 5].
看看看看看看看看看看看 It is Plaintiffs' position that the Defendants have not <p. 38> exhibited any logical nexus between their express purposes and the unconstitutional and illegal practices--the denial of First Amendment protected speech--in which they engage.Plaintiffs argue that not only is the enforcement of the Speech Code inconsistent with the specific express purposes of the University, but Defendants have failed to proffer any arguments that the application of the Leonard Law will compromise the ability of the University to express its alleged concern with the "principles of equal opportunity and non- discrimination."[Speech Code at 5].The membership of the University is not co-extensive with the message it may wish to promulgate.Where "allowing blacks to march with the KKK would change the primary message which the KKK advocates," [Klu Klux Klan, supra, at 289], allowing students who may disagree with University dogma will not extinguish the message of the University.Unlike the Klu Klux Klan, Defendant Stanford is an organization where the membership and message are not co-extensive.
看看看看看看看看看看看 It appears that in cases such as this, where a party claims that it is being forced to accept members that it does not desire, the pertinent question is whether admitting the undesired members will affect the ability of the original members to express the views on which the organization was founded.For example, in Board of Directors of Rotary Int'l v. Rotary Club, supra, (1987) 481 U.S. 537, 548, the Court held that California could force Rotary Clubs to admit women because the Court did not find enough evidence "to demonstrate that admitting women . . . will affect in any significant way the existing members' ability to carry out their various purposes."
看看看看看看看看看看看 Similarly, in this case, it does not appear that Defendants' ability to express their views will be significantly impaired by the <p. 39> application of Education Code 盼94367.As Plaintiffs point out, Defendant Stanford is a major international institution, well-funded, with access to numerous alternative means of conveying its views that the speech prohibited by the Speech Code is offensive and intolerable. Therefore, by denying Defendants the ability to discipline (expel) students for violation of the Speech Code, Defendants' ability to express its message is not impaired because Defendants retain numerous alternative means of expressing their views.
看看看看看看看看看看看 Defendants have not satisfied any of the legal prerequisites to claiming First Amendment protection under expressive associational rights.Plaintiffs argue that the case of Pruneyard Shopping Center v. Robbins (1980) 447 U.S. 74 is directly on point.In Pruneyard, appellant private shopping center owner sought protection from Zionist picketers on precisely the same grounds on which Defendants petition this Court--alleging that a private property owner has a First Amendment right of expressive association not to be forced by the State to use its property as a forum for the speech of others with whom it may disagree.[Id. at 77].In finding the California law constitutional, the Court distinguished expressly its prior ruling in Wooley v. Maynard (1977) 430 U.S. 705, 714-715, in which it found unconstitutional a New Hampshire law requiring that all vehicles display the State motto, "Live Free or Die."In doing so, the Court distinguished between a State compelling a private actor to disseminate the State's ideology for the express purpose that it be read by the public--the Wooley issue--and a State compelling a private actor to allow speech of any content, irrespective of its conformity with State dogma--the Pruneyard issue.[Id. at 86-87].
看看看看看看看看看看看 More specifically, the Court distinguished Pruneyard, supra, <p. 40> on three grounds.First, the shopping center, by the owner's own choice, was not limited to the personal use of the appellant.The center was organized as an establishment open to the public to come and go as they please.Hence, the Court concluded that there was no likelihood that the views of the petitioner would be construed as those of the appellant.Second, no specific message was directed by the State.Accordingly, the fears of government viewpoint discrimination at issue in Wooley, supra, were non-existent.Finally, the Court found that appellant could disavow any connection with the message proffered by petitioners by posting signs to that effect in the center.[Id. at 87].
看看看看看看看看看看看 Plaintiffs argue that the facts in this case are indistinguishable from Pruneyard, supra.First, Defendant Stanford University is not limited to the personal use of Defendants, but rather opens up its campus and admissions process to the general public.2 Furthermore, the public access and large size of the University confirm the assertion that the views expressed by any of its students will not be construed to represent those of the University.Additionally, Defendants could easily disclaim any such wrongful attribution of a student's expressions for those of the University.Identical to the Pruneyard situation, Plaintiffs validly argue that California does not dictate any specific message through the Leonard Law, a situation which eliminates any concerns over government-sponsored viewpoint discrimination.
看看看看看看看看看看看 In sum, therefore, the crucial inquiry in determining ______________________ {2Additionally, it is important to note that a shopping center is located on the University campus.This, too, appears to be a location where the Code applies; the Stanford Shopping Center is a very similar forum to that in Pruneyard.} <p. 41> whether Defendants' First Amendment rights are offended by the Leonard Law is whether there exists a nexus between the express purposes of the group and the activity which it seeks to continue (i.e., suppressing student speech rights).The determination includes analysis of various factors:whether there is a concern of State- sponsored viewpoint discrimination, whether observers are likely to construe the offensive speech as an endorsement by the University of such views, and whether the University has adequate means at its disposal by which to rebut or separate itself from the offensive message.As discussed above, in analyzing these factors, no sufficient nexus exists here which would affect Defendants' rights of association.For these reasons, Defendants' contention that the Leonard Law is unconstitutional since it infringes upon its First Amendment rights of association is unpersuasive.
III.CONCLUSION
看看看看看看看看看看看 In summary, based upon the above analysis, the following conclusion is reached:First, Defendants' Speech Code does violate Plaintiffs' 1st Amendment rights since the Speech Code proscribes more than just "fighting words" as defined in Chaplinsky, supra, and the later lines of case law.To this extent, therefore, Defendants' Speech Code is overbroad.In addition, however, the Speech Code also targets the content of certain speech.Similar to the ordinance in R.A.V., supra, the Speech Code is an impermissible content-based regulation since it does not proscribe all fighting words, but only those which are based upon sex, race, color, and the like. Accordingly, the Speech Code is unconstitutional not only due to its overbreadth but also due to its content-based restrictions.
看看看看看看看看看看看 Second, since Defendants are private parties, the only means <p. 42> by which the Court can have standing to take action against the Defendants is through the enforcement of Education Code 盼94367 (the "Leonard Law").In this case, Education Code 盼94367 does apply and proscribe Defendants' Speech Code.Furthermore, for the reasons discussed above, Defendants' argument that Education Code 盼94367 is unconstitutional as applied to Stanford's Speech Code is unpersuasive. Education Code 盼94367 is constitutional and applicable to Stanford. For these reasons, Plaintiffs' motion for a preliminary injunction should therefore be granted.
看看看看看看看看看看看 Plaintiffs are to prepare the appropriate judgment pursuant to the stipulation of the parties that the ruling on the Preliminary Injunction shall constitute the final disposition at the trial level.





Prepared: April 3, 2003 - 5:02:29 PM
Edited and Updated, April 5, 2003


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