My statement was that breaking promises is not sexual assault.
Sounds like they used the SES survey, and as with the Syracuse study, collected but didn’t report the numbers for coerced sex.
Here are some poll numbers.
http://www.washingtonpost.com/graphics/local/sexual-assault-poll/
Here is the poll.
The sidebar of the Post article has stories of women who were raped, and also men who were raped.
Yes…they are all making their stories up… 
“On what basis do you think a state university enacting sanctions for speech is constitutional?”
On the usual bases: threats, public danger, harassment, stalking, etc. All can be sanctioned by public entities without violating the First Amendment. It is extremely common for courts to limit fundamental rights – not only speech but also the right to travel freely – in the context of domestic violence TROs. Furthermore, those courts can go so far as to imprison people for violating the orders. Expulsion is a much weaker consequence. The only question is whether these tweets violate the university’s order.
I think that public tweets are contact when they are (as all parties agree) addressing the target. This wasn’t an email sent to three friends. A billboard with these messages would be contact, too, even if she didn’t see it.
I acknowledge that reasonable legal minds can disagree about the application of the law to these facts, and I don’t know how this Supreme Court would rule, but I know how I interpret the law. In the context of a well-supported no-contact order, I believe a public university may sanction a student for speech that has the effect of harassing and terrorizing a fellow student.
@Hanna: The things you are saying do not comport with my understanding of the relevant law.
Only two of those are even speech categories. Threats are only unprotected if they are true threats, and the bar for that is quite high. True threats are those “statements where the speaker means to communicate a serious expression of an intent to commit and act of unlawful violence to a particular individual or group of individuals.” Virgina v. Black, 538 U.S. 1536 (2003). Here, the plaintiff called his ex a bad name. How does that evidence a “serious expression of intent”? What precisely is the “act of unlawful violence” he intends? I can find no support in law for the claim that the plaintiff’s actions constituted a true threat. If you know of such a case, please cite it.
Similarly, public danger, by which I assume you mean “incitement to imminent lawless action,” applies where “advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg v. Ohio, 395 U.S. 444 (1969). How would that possibly apply here? He wasn’t advocating anything, it was on twitter so it’s hard to see how it was directed to producing lawless action or that it would be imminent, and since hitting through the internet is not yet possible how was such action likely to occur?
Stalking and harassment are actions and not speech. Since he removed her as a “follower” and did not direct the tweet to her, there is none of the contact necessary to support a stalking or harassment charge. People are allowed to be mean to other people.
Frankly, I’m not sure reasonable minds can disagree about the application of law in this case. I would need to see at least some precedent supporting a state university retaliating against an adult student for off-campus expression. I think you’ll run right into Morse v. Frederick, 551 U.S. 393 (2007), where C.J. Roberts specifically pointed out that there is a First Amendment distinction between on-campus and off-campus speech. And that case was in a high school, where there is a lower bar than in a university (because of the state interest in protecting children).
If you have contrary precedent, I am genuinely open to it. But my understanding of First Amendment law leads me to believe the university’s actions are not justified in this case.
How does one determine the location of a tweet, to say it is off-campus? If he stood just off campus, with a megaphone, and yelled whatever the university had prohibited from yelling on campus, would that count as off-campus? [These are real questions, not rhetorical.]
@“Cardinal Fang”: There isn’t a clear answer. There’s clearly stuff on campus, like holding a demonstration. There’s clearly stuff off campus, like a conversation in someone’s home. The internet falls into murkier ground.
Some courts have examined where a person posted from. For example, in J.S. ex rel Snyder v. Blue Mountain School Dist., 650 F.3d 915 (2011), a high school student posted online from a home computer. The court simply assumed that was off-campus speech. This is an approach favored by the 2d Circuit, which then examines the speech to see if it was reasonably foreseeable that it would come to campus.
The 9th Circuit doesn’t so much look to the location of the writing but rather whether the speech creates a “foreseeable risk of disruption.” Note that the above is all in the K-12 context, where schools generally have more power. When applied to the university context, with the diminished reach of those institutions, it’s hard to see how a tweet would meet either test.
I recall someone saying that the plaintiff posted these things from off-campus (though I don’t think that would actually change much in the analysis), which means we look to foreseeable disruption. That disruption has to be substantial (J.C. ex rel. R.C. v. Beverly Hills Unified School Dist., 711 F.Supp.2d 1094 (2010)), and its hard to see how a few tweets in a university context would rise to that level.
The hypothetical you described actually happened. Check out Morse v. Frederick, 551 U.S. 393 (2007). The Court narrowly limited the case to its facts, but ultimately upheld a suspension imposed by a high school principal. Frederick held a banner stating “Bong Hits 4 Jesus” on the other side of the street from school. The Court said that Frederick was at school when it happened because he stood among students and directed his actions at the school. Of course, that was in a high school context, and universities have less power, but I think the intentional direction of your hypothetical makes it classic Morse. A school would be able to regulate that speech. A more interesting case is if a student owned a house across the street and hung a banner from it.
It seems to me that it would be foreseeable that the tweets would come to the attention of the woman. The couple were boyfriend and girlfriend; undoubtedly they had friends in common. And obviously the tweet did come to the attention of the woman. Presumably one of her friends passed the tweet along.
how many followers would this guy have had? Two? fifty? More?
I think the Washington Post/Kaiser survey provides a wealth of information about and good insight into students’ perceptions and beliefs. Overall, it’s a valuable tool.
I am dismayed to read that 49% of all respondents and 56% of women said it’s more unfair for a person who commits sexual assault to get away with it than it is for an innocent person to get kicked out of college after being accused of sexual assault.
Also surprising to me is that 59% of women agreed (very or somewhat) that “when women go to parties wearing revealing clothes, they are asking for trouble.” Only 43% of men felt the same.
However, what bothers me the most is that the WaPo did a bait and switch from the survey questions to its headlines and leads, and that the terminology in the survey questions is unnecessarily confusing and inconsistent.
One headline read “Twenty percent of women and five percent of men reported being sexually assaulted either by physical force or while incapacitated.” The article claims that “Twenty percent of young women who attended college during the past four years say they were sexually assaulted" and “25 percent of young women and 7 percent of young men say they suffered unwanted sexual incidents in college,” but in fact those percentages include broader and less specific categories of sexual misconduct.
In the article the Post writes
But here’s the corresponding text from the survey:
The survey then goes on to list (and define if necessary) four other examples: Oral sex, sexual intercourse, anal sex and sexual penetration with a finger or object.
No argument that examples 2-5 are sexual assault, but by including “unwanted sexual contact” in the introduction the survey muddied the water. While acts “like grabbing, fondling and rubbing up against you in a sexual way, even if it is over your clothes” may be considered sexual misconduct and boorish behavior, they shouldn’t be classified as assault. Also, “unwanted” is a broad and ill defined term that does not necessarily equal non-consensual.
Under the category heading “Sexual assault by force or threat of force” the actual questions refer to “unwanted sexual contact” not “sexual assault.”
And the introduction to the section involving intoxication is similarly unclear. The preface to the Incapacitated Sexual Assault section says that the survey will ask questions about "unwanted sexual contact while you were unable to provide consent or stop what was happening because you were passed out, drugged, or drunk, incapacitated, or asleep.” But then, the actual questions switch to “incapacitated” alone.
Again, by adding the undefined and undefinable descriptor “or drunk” to the definition of incapacitated, the survey makes it impossible for us to know how many of “victims” were passed out, drugged, incapacitated, asleep and how many were simply “drunk” which may or may not mean “too drunk to consent.”
It’s this kind of fuzziness that makes these surveys less helpful that they could be,
After going after Jackie and UVA with a vengeance the WaPo may have felt they needed to offer a counter-balance. I wish they and the Kaiser Foundation had used more clearly and consistently defined terms.
“The hypothetical you described actually happened.”
Where is the domestic violence no-contact order in that case? Do you agree that courts can limit speech via no-contact orders? If courts, why not public colleges? If anything, courts have a higher duty than colleges to protect rights via due process. If he had tagged her in the tweet, do you agree that that would be contact and punishable speech?
Stalking and harassment often include speech. I have a client who was convicted of stalking for sending a text. That was the sole action punished, and it is speech.
The question isn’t whether she would become aware of it but whether the speech was made on campus and, if not, whether it was reasonably foreseeable that it would come on campus and, if so, cause substantial disruption. This speech was made off campus and there was essentially no risk, in the university context, of substantial disruption. That puts it outside the university’s jurisdiction. Even if the school had jurisdiction, however, that wouldn’t mean it could do whatever it wanted. It would still have to meet applicable first amendment criteria, which I don’t think it could in this case.
@Hanna: Why would you expect to see a DVRO in Morse? Cardinal Fang asked about standing across the street with a megaphone, not about restraining orders.
The limitations on speech in a no contact order are limited time, place, manner restrictions. It would not be consistent with First Amendment law to enforce the order in this case. You’ll notice that further court proceedings were conspicuously absent. No contact orders must be narrowly tailored and leave open alternative channels for speech. That is why they are strictly limited to contacting the subject, which simply tweeting doesn’t do (but a text message would). If he tagged her that might qualify, but I’m not sufficiently twitter savvy to say (I’ve never used it. Do you automatically see people who tagged you? Can you block them?).
Courts can do more than universities can because courts, particularly state courts, are courts of general jurisdiction. Universities are not. Courts also apply significantly more process before burdening free speech rights. Your client was not punished for speech, your client was punished for contact. The distinction is important.
“The limitations on speech in a no contact order are limited time, place, manner restrictions.”
In practice, they are limited in time, but not in place or manner. The language is typically quite sweeping.
“Courts can do more than universities can because courts, particularly state courts, are courts of general jurisdiction. Universities are not.”
I agree that universities have reduced jurisdiction relative to courts, which is why the university gave him only a sanction related to its academic mission, and did not (and could not) jail him, fine him, etc.
“Courts also apply significantly more process before burdening free speech rights.”
In domestic violence TROs? Again, in the real world, the process is totally summary, the defendant has no right to appear or to counsel, and the order can be in place for weeks before the defendant has an opportunity to object (without any right to a public defender). In fact, the orders are often automatic without party giving any testimony; in many jurisdictions, if there is a domestic violence 911 call, the police must arrest at least one party, and there is an automatic TRO against any arrested party that includes harsh limits on speech and movement under the threat of imprisonment.
Now, it’s possible that this whole system is vulnerable to First Amendment challenge, but (since I’m a realist) KU’s actions appear to me well within the bounds of what state entities do every day.
I imagine this is boring for other readers of the thread…
@Hanna, no. It s not boring for readers to read.
I like the legal arguments.
The survey was defining sexual assault as any of the five kinds of unwanted sexual touching. That’s the usual definition.
https://en.wikipedia.org/wiki/Sexual_assault
http://criminal.findlaw.com/criminal-charges/sexual-assault-overview.html
But in criminal codes, what counts as “sexual assault,” rather than another crime like sexual abuse or rape, is all over the place. Canada, and in some US states (eg Alaska) use the expansive definition for “sexual assault”, sexual contact without consent, in their criminal codes. Other states (eg Arkansas) have a separate crime of rape for forcible or incapacitated sexual intercourse, and then use “sexual assault” for all other kinds of illegal sexual conduct. And then other states (eg Arizona) use “sexual assault” for nonconsensual sexual intercourse, and “sexual abuse” for other types of illegal sexual contact.
So, in summary, “sexual assault” might be all unwanted sexual contact, or rape, or all unwanted sexual contact that is not rape. In this survey, “sexual assault” was all unwanted sexual contact including rape, other kinds of unwanted penetration, and other kinds of unwanted sexual touching. It wasn’t fuzzy: when they asked about people’s experiences, they clearly said they were asking about the five kinds of unwanted sexual contact.
@Hanna: In practice, they are limited in place and manner all the time. What do you think a buffer zone is but a place restriction? “Manner” is encapsulated within the definition of “contact,” usually, which is why a text message to a person is violative but ranting in a bar is not. See, e.g., Commonwealth v. Thompson, 699 N.E.2d 847 (1998).
There’s no requirement that a restriction have time and place and manner limitations. Rather, “time, place, manner” is a category of restricting speech in which the government has slightly greater latitude. None of that would help the university much in this case because any interpretation of the no contact order that prohibited general twitter messages would fail both the “narrowly tailored” and “leaves open alternative avenues of communication” prongs.
Also, you only get a public defender for criminal cases (in most states). You wouldn’t get one to overturn an unconstitutional prior restraint, though legal aid or the ACLU would probably help out. A domestic violence TRO does not prohibit speech, it prohibits contact. I am not sure how many more times I need to make that point. The TRO doesn’t stop you from saying whatever you want. It stops you from saying things to a particular person. And even then it only does so in a narrow sense.
@Hanna, there is no state with which I am familiar that does not give the right to both parties to appear for a TRO. In fact, in virtually every state, a lawyer seeking an ex parte TRO must certify that they made reasonable efforts to contact the other party before appearing to seek the TRO. I also do not think I have ever seen a TRO in any state last more than 14 days (the Federal limit) unless there is a voluntary agreement to extend it. While I have never practiced DR law, I think no contact orders (which is what you are analogizing to in my state’s parlance) operate in a virtually identical fashion. And the hallmark of a TRO is it is temporary. Prior to entering any kind of final order a court is going to apply much more process than what is given at the TRO stage. I don’t want to speak for @Demosthenes49, but I am pretty sure he was referring to the process which will occur before a final order occurs.
More importantly, I think you are missing the larger point. The correct question isn’t “well, if a court can incidentally impinge someone’s free speech rights, why can’t a college do it directly?” The correct question is “is the order at issue narrowly tailored enough to meet the compelling interest of keeping psycho A away from person B before the Court can really dig into the merits of the case.” Again, and not to speak for @Demosthenes49, since he or she seems to know this area of the law far better than I, but the facts as reported here don’t seem to indicate that the order issued by the college was anywhere near narrow enough.
More importantly, colleges don’t just have “reduced” jurisdiction relative to courts, they have a completely different mission. A university at base is not an adjudicatory body. Courts are going to have power to act that is all together different in scope, manner and effect than a university.
Remember, before the guy was thrown out of school, he was warned about the tweets. It was certainly foreseeable that the speech would come on campus after they told it him it reached the ex-girlfriend, and to stop it. And the tweets were directed at her: "If I could only say one thing to you it would probably be ‘Go **** yourself you piece of ■■■■.’ #butseriouslygo****yourself #crazyassex.”
After being told not to contact her, after being told not to use social media to harass her, after being warned to stop harassing her on social media, he harassed her on social media. He knew the tweets would get to her, and he knew the tweets were getting to her.
@Ohiodad51: I don’t know about other states, but in [url=<a href=“http://www.courts.ca.gov/selfhelp-domesticviolence.htm%5DCalifornia%5B/url”>http://www.courts.ca.gov/selfhelp-domesticviolence.htm]California[/url] the judge can enter a TRO pending the hearing (which is expedited) on just the papers. You definitely need the hearing for a permanent injunction, as you point out. California also limits the TRO, and the full injunction, to contact rather than speech.
Also, my apologies if I wasn’t clear on the jurisdiction issue. I didn’t mean to suggest that colleges have reduced jurisdiction relative to courts, but rather that the scope of that jurisdiction is narrowly drawn. They have jurisdiction over certain kinds of conduct within their sphere, and none otherwise. Courts, as you point out, have completely different jurisdictional predicates.
@“Cardinal Fang”: Being warned about the tweets is irrelevant. There’s no First Amendment exception for having been warned first. That makes sense, if you think about it, because why would threatening to violate the constitution immunize you when you eventually did violate it?
I also agree that it was foreseeable that the speech would come onto campus. This is a test that developed pre-internet and made more sense when dealing with paper. With the internet the “coming onto campus” aspect is essentially dead (it comes up still in rare cases). That is why I focused on the initial question of the location of the speech and the substantial disruption prong. It’s also worth remembering that this test is from the high school context. Universities have far less power to regulate speech than high schools do, and their jurisdiction is consequently more narrowly drawn. I don’t think there’s any contention that the speech was made off-campus, and I find it hard to credit claims of substantial disruption, most notably because no such disruption actually happened.
As to the tweets, I think there’s an important distinction to be made. The tweets were clearly about her, but that does not mean they were directed to her. As @Hanna mentioned above, she was not tagged in them. Speech about someone else is protected (unless it’s defamation, which this isn’t). It’s the contact part that’s prohibited, and I haven’t seen anything that would lead me to believe there was contact in this case.