COUNTY OF SANTA CLARA
ROBERT J. CORRY, et al.,           )
                                   )  Case No.  740309
                    Plaintiffs,    )
                                   )  ORDER ON
v.                                 )  PRELIMINARY INJUNCTION
UNIVERSITY, et al.,                )
                    Defendants.    )

                          FACTUAL BACKGROUND

          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, §2 of

Article 1 of the California Constitution, and California Education

Code §94367.

          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.


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.

          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].

          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].


          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



          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.

          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.

          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


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.

          In response, however, Plaintiffs maintain that California

Education Code §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.

          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.

          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


second step of the analysis must be discussed:  the constitutionality

of the Leonard Law (Education Code §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.

          This Court will address the two-part analysis separately





          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].

          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


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].

          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


          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,


as Plaintiffs argue, it prohibits "insults" and "offensive speech",

not just "words that make people fight."  [Complaint, 10:13-14].

          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


     [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.

          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


"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.

          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].

          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].l  In

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."


     1  It 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].


[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].

          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.

          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


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



1. The Claims of the Parties.

          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.

          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].

          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


Amendment rights. [Id. at 17:9-10].

          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.

          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].

          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].

          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.].

          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


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.

          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.



3.  Whether Defendants' Speech Code Falls Under An Exception.

          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.

          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.

          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.].

          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


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.

          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


          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.?

          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:


1.  Situation Where The Entire Class Of Speech Is Proscribable.

          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].

          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


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].

          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.

          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

          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


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

          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.

          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].

          Similar to St. Paul's assertions, Defendants in this case

argue that their Speech Code is directed toward secondary effects,


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

          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

          Additionally, the majority in R.A.V., supra, noted that even

if the St. Paul ordinance was a content-based restriction on


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.

          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


          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


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.


          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



          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


property . . .."  [Lloyd v. Tanner Corp. (1972) 407 U.S. 551, 567

(emphasis added)].

          In response, however, Plaintiffs argue that the courts have

standing to take action against Defendants through the enforcement of

the Leonard Law (Education Code §94367).  Specifically, this code

section states as follows:

     (a) 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 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 §94367.

          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 §94367.  It is

Defendants' position that even assuming that Plaintiffs' "fighting

words" are protected speech off campus, with the effect that §94367

requires Stanford to permit them on campus, Education Code §94367

would be unconstitutional as applied to Defendants' Speech Code in


four independently sufficient ways.  These arguments are addressed



          As evidenced by both parties' supplemental papers, it does

not appear that any other state has enacted a statute similar to

Education Code §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.

          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.

          Plaintiffs suggest that the Unruh Civil Rights Act, Cal.

Civ. Code §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


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.


          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 §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.

          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


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


          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 §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.

          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


"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.

          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

          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,


color, etc., tolerance and equality, but could not be used by that

speaker's opponents.")].

          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.


     Johnson (1989) 491 U.S. 397, 412].

          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

§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



          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

          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


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)].

          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].

          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.

          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


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].

          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.

          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


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.

          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


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.

          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].

          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


that Education Code §94367 is unconstitutional on the grounds that it

provides compelled government access is unpersuasive.

2.  Content Based Speech Rule

          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-


          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 §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.

          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--


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


          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.

          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


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.

          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

          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


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.

          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].

          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


interfere with their ability to express their disapproval of any


          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.

          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 §94367


4.  Defendant Stanford's Rights of Association

          The First Amendment protects the freedom of association.


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].

          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.

          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


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.].

          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].

          It is Plaintiffs' position that the Defendants have not


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.

          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."

          Similarly, in this case, it does not appear that Defendants'

ability to express their views will be significantly impaired by the


application of Education Code §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.

          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].

          More specifically, the Court distinguished Pruneyard, supra,


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].

          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.

          In sum, therefore, the crucial inquiry in determining

     2  Additionally, 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.


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.


          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.

          Second, since Defendants are private parties, the only means


by which the Court can have standing to take action against the

Defendants is through the enforcement of Education Code §94367 (the

"Leonard Law").  In this case, Education Code §94367 does apply and

proscribe Defendants' Speech Code.  Furthermore, for the reasons

discussed above, Defendants' argument that Education Code §94367 is

unconstitutional as applied to Stanford's Speech Code is unpersuasive.

Education Code §94367 is constitutional and applicable to Stanford.

For these reasons, Plaintiffs' motion for a preliminary injunction

should therefore be granted.

          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.

          DATED:  February 27, 1995

                                         PETER G. STONE
                                         Judge of the Superior Court


18 Jan 1996