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Last week, I blogged about the threat of universities opportunistically mischaracterizing the Supreme Court's recent in Christian Legal Society v. Martinez to justify their unconstitutional speech codes. Before the Ninth Circuit Court of Appeals, in the speech code case of Lopez v. Candaele, the Los Angeles Community College District (LACCD) has already done just that by filing a supplemental letter contending that Martinez requires courts to "defer to decisions of educational administrators, even in the free speech context and even in higher education."

The Alliance Defense Fund (ADF), which represents the plaintiff in Lopez, submitted its response to LACCD's letter last Thursday, and their response raises many of the same arguments as does my post against the application of Martinez in the speech code context.

First, ADF's response directly quotes Martinez to incisively counter LACCD's claim that Martinez requires courts to give university decisions more deference, even when university policy may intrude upon First Amendment rights:

Contrary to the College's position, Martinez does not suggest deference to colleges when reviewing policies that restrict speech. "[A] public educational institution exceeds constitutional bounds ... when it restricts speech ... simply because it finds the views expressed by a group to be abhorrent." [Martinez, slip op. at *13]. When students' rights are at stake, the Court instructs that there should be no deference: "This Court is the final arbiter of the question whether a public university has exceeded constitutional constraints, and we owe no deference to universities when we consider that question." Id. at *14 (emphasis added). Educational policy is different and not at issue here, but a court may not abdicate its responsibility to uphold free speech under the guise of "decent respect." Id. at *14 & n.16.

Further, ADF quotes Martinez to show that the decision actually demonstrates why LACCD's speech policy is unconstitutional:

Unlike Martinez, the College's policy "wield[s] the stick of prohibition" on any student viewpoint deemed "offensive" or "harassing." [Martinez, slip op. at *12.] This is a direct viewpoint discriminatory burden on speech because it allows subjective definition of what qualifies for punishment. (Answering Br. at 25-28, 37-39.) By contrast, the Court found Martinez's policy did not exclude any particular viewpoint. [Martinez, slip op. at *19.] The College punishes students for "offending" others, but in Martinez students could "express any viewpoint they wish—including a discriminatory one." Id. n.26.

FIRE contributed an amicus brief in this case prior to the Supreme Court's ruling in Martinez, arguing that LACCD's speech code unconstitutionally restricts protected speech and discriminates on the basis of the speaker's viewpoint. Martinez has the potential to erode students' speech rights if courts misapply its narrow ruling, and we are heartened that ADF has brought these important points to the Ninth Circuit's attention. We hope that the Ninth Circuit recognizes LACCD's attempts to misconstrue Martinez for what they are.