SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
ROBERT J. CORRY, et al., )
) Case No. 740309
) ORDER ON
v. ) PRELIMINARY INJUNCTION
THE LELAND STANFORD JUNIOR )
UNIVERSITY, et al., )
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
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
INTRODUCTION: THE STANFORD SPEECH CODE
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
I. THE CONSTITUTIONALITY OF DEFENDANTS' SPEECH CODE
A. CONSTITUTIONALITY UNDER CHAPLINSKY AND LATER LINE OF CASES
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
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
B. CONSTITUTIONALITY UNDER R.A.V. V. CITY OF ST. PAUL
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
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
II. THE APPLICABILITY AND CONSTITUTIONALITY OF EDUCATION CODE §94367
("THE LEONARD LAW")
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
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
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
A. OTHER CASES CONSTRUING SIMILAR STATE STATUTES
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.
B. APPLICABILITY OF EDUCATION CODE §94367 ("THE LEONARD LAW")
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
[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
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
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
C. CONSTITUTIONALITY OF EDUCATION CODE §94367 ("THE LEONARD LAW")
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
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
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
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