3rd Circuit Rejects University’s Speech Code

     (CN) – A student accused of harassing an alleged rape victim on the campus of the University of Virgin Islands has successfully argued that the school violated his First Amendment rights.

     The 3rd Circuit ruled that two provisions of the university’s student code of conduct infringed on students’ First Amendment rights, and reversed a federal court judge’s dismissal of all claims against the school.
     Judge Brooks Smith, writing for the three-judge panel, took exception to two policies adopted by the university that banned offensive signs, and speech that caused “emotional distress.”
     Smith first noted that the prohibition on “any unauthorized or obscene or offensive or obstructive sign” was overbroad.
     “The lack of any procedures explaining how signs may be authorized for display is a procedural failure that is not susceptible to a constitutional construction and the ban on ‘offensive’ signs is hopelessly ambiguous and subjective,” the justice said.
     Likewise, Smith declared that the school’s provision on behavior that caused emotional distress was “entirely subjective” with “no shelter for core protected speech.”
     The judge noted that the school chilled “speech without any regard for whether the speech is objectively problematic.”
     “The scenarios in which this prong may be implicated are endless: a religious student organization inviting an atheist to attend a group prayer meeting on campus could prompt him to seek assistance in dealing with the distress of being invited to the event; minority students may feel emotional distress when other students protest against affirmative action; a pro-life student may feel emotional distress when a pro-choice student distributes Planned Parenthood pamphlets on campus; even simple name-calling could be punished,” Smith said.
     McCauley was part of group of students attending a beach party when a “sexual act occurred between” students Josh Carlson and Jenna Piasecki.
     “The next day, Carlson was charged with raping Piasecki,” the opinion says. “After learning of that charge, McCauley visited Piasecki’s dorm room to talk to her about the alleged rape.”
     Piasecki complained to university officials, claiming McCauley harassed her.
     The university charged McCauley with violating the school’s hazing-harassment policy after twice warning him to stay away from Piasecki. In addition to the visit at her dorm room, McCauley allegedly contacted her by phone and at a campus bar.

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