Free Speech and Civil Harassment Orders

Every year, U.S. courts entertain hundreds of thousands of petitions for civil harassment orders, i.e., injunctions issued upon the request of any person against any other person in response to words or behavior deemed harassing. Definitions of “harassment” vary widely, but an often-used statutory formula defines it as “a course of conduct directed at a specific person which seriously alarms, annoys, or harasses the person, and which serves no legitimate purpose.” Civil harassment statutes can protect the safety, privacy, and autonomy of victims, but when courts declare that speech is harassing, or issue injunctions against future speech on grounds that it would harass, they may violate constitutional rules against vagueness, overbreadth, and prior restraint. Unfortunately, civil harassment litigation includes structural features that cause courts to systematically underestimate the free speech dangers. This Article proposes methods to interpret and apply civil harassment statutes that will avoid most serious free speech problems. The key is to define harassment as unconsented contact or surveillance that endangers safety and privacy. The long-established tort and criminal law concepts of battery, assault, threats, trespass, and intrusion into seclusion lie at the core of this definition. Conduct resembling outrage (intentional infliction of emotional distress) lies at the periphery. Speech about the victim directed to other listeners (especially defamation and malicious prosecution) falls outside the definition altogether. By focusing on the nature of the contact between the parties, rather than on the content of one party’s allegedly harassing speech, courts will be better able to apply civil harassment statutes in a constitutionally acceptable manner

Stretching the Equal Access Act Beyond Equal Access

This article explores the ramifications of stretching the Equal Access Act ( EAA or the Act ) beyond equal access to school premises for meetings during noninstructional time. Part I provides background on the Equal Access Act, from its legislative origins through its interpretations by federal courts. This part includes a careful look at the statute\u27s often confusing language. Part II describes and criticizes Prince v. Jacoby. I argue that the decision is plagued with legal errors large and small, but that the main error is its failure to consider a central question: equal access to what? Both the EAA and the First Amendment public forum doctrine indicate that student groups should have access to forums for assembly and expression, but Prince mandated access to much more. Part III explores a parallel development in which the First Amendment public forum doctrine has been stretched beyond forums for assembly and expression. This part first describes the doctrine in its standard form and then considers how well it translates to other settings. The process reveals some of the tensions within the public forum doctrine even when applied to its usual locations. Part IV concludes the article with practical suggestions for living with Prince if it is not overturned by later court decision

Stretching the Equal Access Act Beyond Equal Access

This article explores the ramifications of stretching the Equal Access Act ( EAA or the Act ) beyond equal access to school premises for meetings during noninstructional time. Part I provides background on the Equal Access Act, from its legislative origins through its interpretations by federal courts. This part includes a careful look at the statute\u27s often confusing language. Part II describes and criticizes Prince v. Jacoby. I argue that the decision is plagued with legal errors large and small, but that the main error is its failure to consider a central question: equal access to what? Both the EAA and the First Amendment public forum doctrine indicate that student groups should have access to forums for assembly and expression, but Prince mandated access to much more. Part III explores a parallel development in which the First Amendment public forum doctrine has been stretched beyond forums for assembly and expression. This part first describes the doctrine in its standard form and then considers how well it translates to other settings. The process reveals some of the tensions within the public forum doctrine even when applied to its usual locations. Part IV concludes the article with practical suggestions for living with Prince if it is not overturned by later court decision

Proposed Ninth Circuit Split: Response. Malthus and the Court of Appeals: Another Former Clerk Looks at the Proposed Ninth Circuit Split

This Article argues that current proposals to split the Ninth Circuit are unnecessary and would be detrimental to judges, law clerks, lawyers, and litigants. Larger circuits offer various benefits, many of them arising from the diversity of cases and judicial personalities on the bench. Splitting the Ninth Circuit would not bring the benefits proponents predict

Freedom of Speech in School and Prison

Students often compare their schools unfavorably to prisons, most often in a tone of rueful irony. By contrast, judicial opinions about freedom of speech within government-run institutions compare schools and prisons without irony or even hesitation. This Article considers whether the analogy between school and prison in free speech cases is evidence that the two institutions share a joint mission. At a macro level, there is an undeniable structural similarity between the constitutional speech rules for schools and prisons. At a micro level, however, there are subtle but significant differences between the two. These arise primarily from the judiciary’s belief that differences exist between the purposes of schools and prisons—although, somewhat ominously, the differences appear even more subtle when comparing schools to jails. Just as judicial beliefs about social reality affect constitutional outcomes, the constitutional rules in turn affect social reality. Courts should be wary of language that equates schools with penal institutions, lest the analogy become a self-fulfilling prophecy

Visions of Public Education In Morse v. Frederick

As legal rules go, the US Supreme Court’s 2007 decision Morse v. Frederick (2007) will be fairly easy for school administrators to apply. The First Amendment allows a public school principal to “restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use.” Justice Alito\u27s concurring opinion explained that the rule “goes no further” than speech advocating drug use, and does not authorize punishment for “speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as the wisdom of the war on drugs or of legalizing marijuana for medicinal use.” The rule may be straightforward, but the reasoning that generated it is harder to follow

Millennials, Equity, and the Rule of Law: 2014 National Lawyers Convention, \u3ci\u3eHow First Amendment Procedures Protect First Amendment Substance\u3c/i\u3e

A panel, at the National Lawyers Convention, discussed procedure as it relates to First Amendment rights. The panel set forth how First Amendment procedures have historically protected First Amendment substance and discussed modern applications of the issue. For example, the prior restraint doctrine, overbreadth doctrine, the allocation of the burden of proof and relaxation of ripeness rules have important implications for challenging restrictions on speech and defending against libel and defamation. The interaction of free speech and due process is often seen in litigation involving civil harassment orders, or civil protection orders. In many jurisidictions the definition of harassment permits the finding that harassment can be based solely on speech, meaning speech itself can provide a basis for liabilty. In addition, speech may be restricted as a remedy in litigation addressing harassment. Investigations of wrongdoing in the realm of campaign finance law and political speech cases can also have serious implications for speech, both reputational and legal. Further cases involving political speech and campaign finance once exclusively litigated in the civil arena, are now the subject of criminal investigations and prosecutions. This is particularly problematic where many issues in this area remain unsettled. Good lawyering is particularly important in First Amendment cases. Ineffective assistance of counsel can be considered as great an evil in First Amendment cases as in criminal cases. Unfortunately, practicing lawyers often do not understand the process by which constitutional facts are pleaded and proved in First Amendment cases and this problem begins with the way Constitutional Law 101 is taught in law schools. In proving facts in First Amendment litigation the question becomes how does the government prove its justification of a restriction on speech or how does one opposing the government’s restriction on speech respond when the government asserts certain interests as being their justification. In First Amendment litigation the government often relies on legislative facts – newspaper reports, television stories, and criminal cases discussed in the media, arguably the government should be obligated to present more than rumors and speculation

A Genotype-First Approach for the Molecular and Clinical Characterization of Uncommon De Novo Microdeletion of 20q13.33

Background: Subtelomeric deletions of the long arm of chromosome 20 are rare, with only 11 described in the literature. Clinical features of individuals with these microdeletions include severe limb malformations, skeletal abnormalities, growth retardation, developmental and speech delay, mental retardation, seizures and mild, non-specific dysmorphic features. Methodology/Principal Findings: We characterized microdeletions at 20q13.33 in six individuals referred for genetic evaluation of developmental delay, mental retardation, and/or congenital anomalies. A comparison to previously reported cases of 20q13.33 microdeletion shows phenotypic overlap, with clinical features that include mental retardation, developmental delay, speech and language deficits, seizures, and behavior problems such as autistic spectrum disorder. There does not appear to be a clinically recognizable constellation of dysmorphic features among individuals with subtelomeric 20q microdeletions. Conclusions/Significance: Based on genotype-phenotype correlation among individuals in this and previous studies, we discuss several possible candidate genes for specific clinical features, including ARFGAP1, CHRNA4 and KCNQ2 and neurodevelopmental deficits. Deletion of this region may play an important role in cognitive development