Clovis Community College in California lost a major ruling in its effort to quash a free speech lawsuit by students censored by the school. U.S. District Judge Jennifer Thurston granted a preliminary injunction against the college, which requires a finding of a substantial likelihood of prevailing on the merits. The college ordered the removal of flyers promoting Freedom Week in November 2021, a week in which student groups oppose socialism and support conservative causes.
The lawsuit was brought by the Foundation for Individual Rights and Expression (FIRE) attorney on behalf of three students at Clovis Community College. The students are members of the school’s chapter of the Young Americans for Freedom. They allege that they had received approval to post anti-communist and anti-socialist flyers on bulletin boards inside campus buildings last November. However, Clovis President Dr. Lori Bennett allegedly ordered the flyers taken down.
The defendants in the suit are Clovis Community College President Lori Bennett, Vice President of Student Services Marco De La Garza, Dean of Student Services Gurdeep Sihota Hebert and Senior Student Services Program Specialist Patrick Stumpf.
The college insists that it reserves the right to remove flyers over “inappropriate or [offensive] language or themes.” The lack of any definition for those vague terms would weigh heavily with the court in granting the preliminary injunction.
FIRE produced emails showing that a college administrator offered to “gladly take down” the flyers after “several people” said that they were “very uncomfortable” with the flyers, including a person who allegedly threatened a “harassment claim” if the posters were not taken down.
The lawsuit includes a claim that, in December 2021, the students were denied permission by the dean of student services to post pro-life flyers on bulletin boards inside campus buildings. They were told they could instead post them on a “free speech kiosk,” which is described as “a small box covered in rotting wood planks… at the edge of a walkway students virtually never use because it does not lead to any building entrances or parking lots.”
The court details the conflicting decisions of the college administrators, including the refusal to allow the first pro-life flyer but then a later granting of the posting of a second flyer. The school never explained why the flyers were treated differently. That part of the opinion was particularly striking since the school needed to show that it was not making content-based discriminatory judgments. The failure to clearly explain the difference between the two flyers would seem a glaring failure in such a case.
The college appears to have stressed a threshold and sweeping claim that the bulletin boards are a nonpublic forum and the College has complete editorial discretion over the content of its bulletin boards. However, the court noted that the college does allow groups to speak through its bulletin boards and thus cannot discriminate on their content in this way.
A school district “may legally preserve the property under its control for the use to which it is dedicated,” but once it opens a governmental space to non-governmental speakers, that control does not permit viewpoint-based restrictions. …It is undisputed that the College permits students, i.e., non-governmental speakers, to post messages and flyers containing student speech on the bulletin boards in the Academic Center. …Contrary to Defendants’ assertion, because the bulletin boards constitute, at a minimum, a nonpublic forum, the College does not have limitless discretion to determine what student messages are permitted. …Thus, regardless of whether the bulletin boards are a public or nonpublic forum, the prohibition against viewpoint discrimination equally applies. Because Plaintiffs’ challenges to the Flyer Policy depend on viewpoint discrimination, the Court need not determine the precise forum of the bulletin boards.
The court then rejects the standard used to remove the flyers:
[T]he prohibition on “inappropriate or offense language or themes” does not have a core of readily identifiable, constitutionally proscribable speech. The Supreme Court has established that the government may not proscribe speech merely because it offends someone or because it contains an unpopular viewpoint. See, e.g., Papish, 410 U.S. at 670; Tinker v. Des Moines Indep. Cnty. Sch. Dist., 393 U.S. 503, 509 (1969) (stating that “mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint” is insufficient to justify prohibition of a particular expression of opinion). Given this irrefutable principle, other courts have found university policies with similar language have no legitimate sweep of constitutionally proscribable speech.
The record shows that there were complaints about the flyers but the court notes that the First Amendment protects speech even when it is viewed as offensive by some individuals. That is an important element of free speech that is under increasing attack on campus. Faculty and students now routinely object that “words are violence” or that allowing opposing views would be “harmful.”
In its discussion on the vagueness of the standard, the court suggests that the college has been less than honest in its rationalization for censorship:
Defendants’ basis for enforcing the Flyer Policy against Plaintiffs exemplifies the kind of arbitrary and discriminatory treatment that the vagueness doctrine is designed to prevent. Defendants contend they disapproved of Plaintiffs’ flyers because they did not have a local student organization identifier or did not relate to a campus matter. (Doc. 13 at 4, 7.) However, the emails exchanged among the College administrators reveal that their concern about the YAF flyers developed only after receiving complaints from students that the flyers made them “uncomfortable.” (Doc. 6-2 at 2.) After having decided to remove the flyers, Defendant Bennett stated, “If you need a reason, you can let [Plaintiffs] know that Marco and I agreed they aren’t club announcements.” (Doc. 6-7 at 2.) These emails suggest Defendants formalized their justification for banning the YAF flyers after first deciding they needed to be removed. Defendants’ ad hoc decision-making highlights the unpredictable and arbitrary enforcement that the ambiguous Flyer Policy enables. … Accordingly, the Court finds Plaintiffs demonstrated a likelihood of success on the merits of their claim that the “inappropriate or offense language or themes” provision of the Flyer Policy is unconstitutionally vague.
The vagueness discussion is particularly notable given the widespread use of vague “microaggression” and speech guidelines using the same or similar language. We have previously discussed microaggression policies and the free speech concerns raised by these vague standards. Courts have also ruled against provisions but universities continue to use them.
What is equally concerning is the expenditure of state funds to fight against free speech protections at this college. There never seems to be an accounting for university presidents and administrators who not only attack free speech but then engage in protracted litigation to defend censorship.
Here is the order: Flores v. Bennett