@Hanna: On what basis do you think a state university enacting sanctions for speech is constitutional? On its face it looks to me like a classic content-based restriction on speech, unconstitutional unless it falls into one of the categories of unprotected speech. The university cited “true threat,” which is entirely implausible given that it proposed no action. If it’s not unprotected then the university needs to pass strict scrutiny, and good luck with that.
Well, I’m curious about the answer too so I’m eager to see what you lawyers decide. But here’s my layman’s attempt -
-
it sounds like the state court was able to issue a restraining order restricting contact that includes speaking to her via electronic media, and if it’s not unconstitutional for the state court then it’s not unconstitutional for a state university to issue a no-contact order that mirrors it. The university may lack the authority, but it’s not unconstitutional.
-
The remedy the university crafted was very narrowly tailored to address a specific harm and issued after the due process of a hearing - it only restricted this guy’s speech that was directed at one specific individual.
-
Someone upthread said “the boyfriend agreed to a no-contact order in exchange for a judge dropping domestic violence charges”. Since he agreed to it with the judge, there may be much more latitude for restricting his speech since it was a voluntary restriction.
So the question is … is it clear that his tweet was directed at this girl and/or falls within the scope of the order?
@al2simon: The state court restraining order I haven’t looked at, but almost certainly bars [url=<a href=“http://www.kansasjudicialcouncil.org/Documents/Protection%20From%20Stalking/PDF12/PFS_FinalOrder%287-2012%29.pdf%5Dcontacting%5B/url”>http://www.kansasjudicialcouncil.org/Documents/Protection%20From%20Stalking/PDF12/PFS_FinalOrder%287-2012%29.pdf]contacting[/url] the subject, not speaking about the subject. A post on social media can’t reasonably be construed as contact. If it were, it would be so overbroad as to run into a whole new set of constitutional issues. It is always possible, however, that the boyfriend agreed to limit his first amendment rights as part of the settlement process. That could lead to some extremely tricky issues, so I hope that’s not what happened (because I’m lazy and don’t want to deal with it).
It also may or may not be unconstitutional for the university to issue a mirrored restraining order, depending on its process for issuing it. It can also fail constitutionally in its interpretation. For example, by how it interprets “contact.”
I haven’t seen the university remedy, but I doubt it was narrowly tailored. Basically nothing can pass the narrow tailoring prong of strict scrutiny. The only modern cases I can think of deal with divulging troop movements in wartime, and things of that nature. That’s why fights over constitutional issues so often become about the applicable standard of review.
I assume that by the boyfriend agreeing they mean that he entered into a settlement agreement. That’s fine; he’s entitled to cede his rights. The university may not simply decide that because he ceded them in one instance that it can take them away in another. Not even in the same case.
could the woman reasonably interpret the tweets as threats? He knew she would see them, as in fact she must have. If someone who had already been arrested for restraining me and battery put those tweets up about me, I’d feel threatened. We know the guy is violent.
@Cardinal Fang: It probably doesn’t matter if she interpreted them as threats, reasonably or otherwise (though it’s hard to see how they could reasonably be so interpreted). The Supreme Court punted on answering that very [url=<a href=“http://www.scotusblog.com/2015/06/opinion-analysis-internet-threats-still-in-legal-limbo/%5Dquestion%5B/url”>http://www.scotusblog.com/2015/06/opinion-analysis-internet-threats-still-in-legal-limbo/]question[/url] this term. That was a much closer case than this one though. This one is facially implausible. My guess is that the Court will demand an objective standard, which is coupled with the necessarily subjective mens rea element. Whether that mens rea would also apply in non-criminal cases is hard to predict.
http://www2.ljworld.com/news/2014/nov/17/former-ku-student-expelled-tweets-not-allowed-retu/
Here’s the last ruling I could find. Clearly, as several newspaper reports, the two had a toxic relationship, but the issue isn’t that, the incident of driving her around and taking her cell phone is over and he was punished…it is whether the college followed it’s own stated policies and processes. He is a senior engineering student so his vested interest is in finishing the degree. The judge ordered a stay and the college is appealing the decision to allow him to re-enroll.
What is interesting is that the college has extended their “rules” about what a person can say and not say outside of the campus environment and imposed it on conversations that could only be seen by “friends/followers”. Part of his legal settlement originally was that he remove the ex-girlfriend from his Twitter account and only followers could see his tweets.
But here’s what started his troubles
Unless he agreed to a non-disparagement clause, why doesn’t this guy have a first amendment right to tell people his ex is a psycho or ugly or something else unflattering?
I think he probably does Northwesty since his Tweet was private to his group that “choose” to read what he writes by following his Twitter feed, but the public university seems to applying their own rules here. The judge also ruled the college in error, but issued a stay to allow the college to appeal. It’s an interesting time and there will be some interesting ruling this year I think.
@Demosthenes49 wrote: “@Hanna: On what basis do you think a state university enacting sanctions for speech is constitutional?”
Well, I’m neither Hamma nor a lawyer, but it sounds to me like you’re attributing to her pretty much exactly the opposite of what she said. (Brigham Young is, after all, a private school.)
So this woman decides to sneak into the twitter feed of her ex against whom she filed a police case, gets offended by what he is posting, and complains to the university that she is feeling threatened?
Who asked her to keep stalking her ex’s twitter account!?
A recent poll…
http://www.washingtonpost.com/sf/local/2015/06/12/1-in-5-women-say-they-were-violated/
Maybe the guys are lying too… 5 percent of the guys say they were sexually assaulted.
@momofthreeboys: Thanks for posting the link! Colleges (and every other school) try to extend their power all the time, so this isn’t terribly out of the ordinary. Schools really like being able to control what their students may say.
@northwesty: He does.
@dfbdfb: I am a bit confused by your post. I thought the relevant institution was the University of Kansas? That was the university named in the link she included in the post I quoted.
Promises? Really?
And that’s sexual assault?
Perhaps the “promise” was that he would not hurt her or that he would let her leave if she did XY or Z for him.
More likely the promise was that he would be her boyfriend, love her forever, marry her, and make babies and play house with her.
Well thanks for letting me know how all this works @JohnDoe. So you are saying that it is customary for men to lie to get girls to agree to sex? Wondering why these men would have to do that.
Who knows and who cares. It’s not rape, nor is it sexual assault. That’s what relevant to this discussion.
It was your statement @JohnDoe4 – you brought it up.