Table of Contents
An Appropriately Narrow Conception of Intimidation and Harassment
In a significant victory for speech rights on campus, U.S. Magistrate Judge Wayne Brazil ruled earlier this month that the plaintiffs in the San Francisco State University (SFSU) speech codes litigation were entitled to a preliminary injunction with respect to the University鈥檚 requirement that students be 鈥渃ivil鈥 toward one another and its provision allowing student groups and organizations to be punished collectively if any member engages in conduct 鈥渋nconsistent with SF State goals, principles, and policies.鈥 Sam has already analyzed Judge Brazil鈥檚 treatment of these issues, as well as his important discussion of the clear differences between the high school and college settings. I turn now to his analysis of the issues of intimidation and harassment.
The plaintiffs had challenged, in addition to the provisions mentioned above, a University rule prohibiting 鈥淸c]onduct that threatens or endangers the health or safety of any person within or related to the University community, including physical abuse, threats, intimidation, harassment, or sexual misconduct.鈥 Specifically, they alleged that the inclusion of the terms 鈥渋ntimidation鈥 and 鈥渉arassment鈥 rendered the provision facially overbroad by encompassing constitutionally protected speech. In declining to enjoin the enforcement of this provision, Judge Brazil emphasized, quite significantly, that:
[T]he structure of the challenged provision, viewed as a whole, suggests that it was not intended to proscribe 鈥渋ntimidation鈥 or 鈥渉arassment鈥 in whatever form 鈥渋ntimidation鈥 or 鈥渉arassment鈥 might take, but only the sub-category of intimidation or harassment that 鈥渢hreatens or endangers the health or safety of any person.鈥
In other words, he denied the injunction under the specific understanding that the rule in question would not be applied against a student who merely engages in expressive behavior with no intent to threaten or endanger the health or safety of another person. Such an understanding closely tracks the Supreme Court鈥檚 pronouncement in the 2003 case of Virginia v. Black, 538 U.S. 343 (2003) that intimidation, in the constitutionally proscribable sense, means a 鈥渢ype of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.鈥 This is, on its face, a fairly rigorous and narrow standard, and appropriately so.
To hold otherwise would be to invite charges of intimidation and harassment to be levied against a speaker any time someone subjectively feels offended or annoyed. As Judge Brazil recognized in his opinion, 鈥淸s]tanding alone, the terms 鈥榠ntimidation鈥 and 鈥榟arassment鈥 are not clearly self-limiting and could be understood, reasonably, to proscribe at least some expressive activity that would be protected by the First Amendment.鈥 A university policy prohibiting intimidation or harassment, standing alone, would certainly encompass a significant amount of protected speech, as has been borne out in numerous FIREcases.
In the ongoing saga at Valdosta State University, for instance, a student has astonishingly been branded as posing a threat to the University president鈥檚 safety and to the safety of the campus as a whole merely for expressing his opposition to a proposed campus parking structure by creating a collage of pictures on the popular website Facebook.com. Despite the absence of anything approaching a true threat, the student has been expelled for engaging in clearly protected expression. In another current case, a student at Hamline University has been suspended for sending 鈥渢hreatening鈥 emails, when in fact he simply advocated for the right to carry concealed weapons and opined that the Virginia Tech massacre might have been prevented if students had been allowed to carry concealed weapons on campus. To argue that expressing these opinions in an email is the same as intimidating or harassing someone is the height of absurdity.
These and other similar cases counsel against giving university administrators unbridled discretion to define and apply terms such as intimidation and harassment as they see fit. Instead, Judge Brazil has judiciously held SFSU to the narrow language of its rule, adding as extra protection the caveat that the provision 鈥渕ay be invoked only as it has been construed in this opinion.鈥 As a result, 鈥渋t seems likely that most of the conduct that this regulation prohibits either would have no expressive component or that any such component would be so overshadowed by the risk that the conduct would cause serious harm that First Amendment concerns would have to give way.鈥 Even in denying this aspect of the plaintiffs鈥 request for relief, therefore, Judge Brazil has demonstrated a clear commitment to the values of the First Amendment and to the need to prevent infringements upon protected forms of speech. One can only hope that his ruling sets a valuable precedent to be followed by other courts when encountering these same issues.
Recent Articles
FIRE鈥檚 award-winning Newsdesk covers the free speech news you need to stay informed.