Discussion List for campus-based and allied personnel working to end gender-based violence on campus.

http://www.ca3.uscourts.gov/opinarch/093735p.pdf

This is an interesting case because it addresses the constitutionality of university codes related to offensive speech.

As applied in this case it refers to the "speech" of a perpetrator's buddy, directed at a victim, after she reported a sexual assault to university officials.

The case doesn't reveal what the buddy said - but makes it sound as though he "just wanted to talk to her" about the allegations.

This type of speech, the court held, cannot be punished. And the code provision that allows for punishment must be rewritten because it is overbroad thus unconstitutional.

NOTE - however - that the court explicitly says it is not talking about speech that amounts to "sexual harassment" - which is per se "unprotected unprotected speech, thus unrelated to this ruling).

The court also does not address that fact that the definition of "sexual harassment" would include retaliation speech.  Thus, if framed as an act of retaliation - even if otherwise protected - the speech at issue here would NOT be protected and the court could not have ruled the way it did.

Thus, as a practice point for universities, it is probably worth considering treating all such speech as retaliation, thus a violation of title ix and sexual harassment rules, rather than a generic "disciplinary code" infraction aimed at redressing offensive speech.

Wendy Murphy