@Demosthenes49, and I did not mean to suggest that you needed both parties present for a TRO. Only that in my experience, you have to certify to the Judge that you made “reasonable efforts” to contact the other party before appearing ex parte. I understood your point on the jurisdictional stuff. I was just trying to explain it a different way for the non lawyers on the board.
In a virtual world, location is tricky. Consider, though, that the current FIFA bribery cases could be brought by the US because servers located in the US were (allegedly) used. Similarly, if tweets passed through a university’s servers (by being sent or read while the sender or recipient was using the university’s wifi system, say), well, there’s an interesting bit of case law waiting to be made.
Yes, and in the KU case that was explored and he did not use any college resources. That came out in the FIRE support.
I agree that the internet has made jurisdictional questions, particularly in the area of what lawyers call “minimum contacts” very tricky. But I do not think that general jurisdictional principles are really at the heart of this. I don’t believe the real issue is did the University have the power to act. I think the real question is, assuming the University did have that power, did it exercise it legally. Different question.
Right—he didn’t. But did she, at the other end of the exchange?
What I was getting at is that after he was told that his tweets were reaching her, he could no longer pretend that he didn’t realize his tweets would reach her. I say, this was harassment directed at her: "If I could only say one thing to you it would probably be ‘Go **** yourself you piece of *.’ #butseriouslygo*yourself #crazyassex.”
The college has a right, and indeed a legal duty, to stop him from harassing her. If he went up to her, after the TRO, and said, “Go **** yourself” that would be harassment, I’m sure you agree. Directing tweets at her, I say, is the same thing.
The initial altercation, and the court restraining order, happened at the beginning of the summer. He was told by the college to stay away from her at the end of the summer, well after 14 days had passed. Do we know whether the legal restraining order was still in place at that time? If so, that’s not temporary.
@dfbdfb: I think the FIFA case was predicated on routing money through US banks, not on server location, but I haven’t looked into it so I am not sure. There definitely were cases based on server location in the 90s, though I haven’t seen one in a while.
I have to disagree with @Ohiodad51 that jurisdiction isn’t important here. If the university acted outside the scope of its powers, its action must be overturned regardless of whether those actions would be legally permissible within the scope. I don’t think it acted legally either way, so the university loses coming and going.
Of course, we may not actually see any of these issues, since the trial court properly avoided the constitutional question to focus on the university’s adherence to its own code, which the trial court held it did not. Despite FIRE/ACLU amici about the First Amendment, I don’t think the constitutional issue was raised on appeal. I’d have to look to be sure.
I’m not sure what you’re asking about her actions though. So far as I’m aware she wasn’t under any order, so there wouldn’t be any limit to her actions.
"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."
So the WaPo survey indicates that 20% (with 5% margin of error) of current/recent college women had experienced “forced touching of a sexual nature” or worse. Which means at some point in college a guy tried to cop a kiss or a feel (or something worse). I don’t think anyone would be surprised by that number.
But the survey defines “sexual assault” as anything from unwanted kissing up to completed rape. Which are not the same thing. I don’t see anywhere that it has any data on the incidence of different kinds of sexual assault. Would be a lot more useful and helpful if they sorted SA’s out by severity.
Come on WaPo!!! Why do the survey at all if you are not going to do it well?
But compare WaPo to Syracuse. 18.6% of Syracuse freshman females experienced RAPE or attempted RAPE during the first 12 months of college.
Quite unlikely that those two pictures are consistent with each other. Although you can’t really tell because WaPo biffed it so bad.
“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…”
No one gets to decree what the correct question is. I’m coming at this from a realist angle, not a prescriptive angle. When sweeping no-contact orders happen in the real world under much more consequential circumstances all the time, then as a practical matter, it doesn’t surprise me to see a public university exercising a baby version of the same power.
If you want to talk about this from a normative constitutional theory angle, that’s fine. But I’m looking at the behavior of government entities and describing the rules as I see them in action.
As it happens, in this case, I think the university’s ruling was sufficiently narrowly tailored to protect one student from public intimidation/harassment by another. I have not done enough research to see whether I agree with the court ruling that KU failed to follow its own rules in enacting its decision.
Just a note that “margin of error” doesn’t always mean what most people think it means. Importantly for this case, a stated margin of error is only really that size when a population is split 50/50 on something—the actual margin of error shrinks the further away you get from that. Therefore, if you have a 20/80 split, a “5%” margin of error is actually a good bit smaller than that. (I’m not somewhere where I can do the math to check what it would actually be—sorry.)
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@hanna, I am not talking about normative constitutional theory. I am talking about the legal ability of an entity, infused with state action, to infringe on someone’s constitutional rights. I have some small experience in the legal frame work in which governmental entities operate, and I am unfamiliar with any examples of any such entity depriving an individual of a right or privilege guaranteed by law on anything but a very temporary basis without some level of due process. If you are aware of such, I’d be interested to know what they are. And again, colleges are not courts. They simply can not act in the same way or exercise the same power.
Also, and with all due respect, I feel very confident that a court is going to draw a distinction between a narrowly tailored impingement on speech and the absolute power to restrict it.
@Demosthenes49, sure jurisdiction is always the threshold question. Given the report of this case though (always a trustworthy source) it appeared that the trial court felt there was jurisdiction here, saying that the college could amend its policies to bring the complained of conduct assumedly within the scope of the contract between the student and the school. You obviously have much more experience in this area than I though so I will take your word for it.
I am personally much more interested in the substantive question behind jurisdiction, ie what is the college’s justification for such a sweeping restriction, and does the law permit or require it to assume that duty. In other words, does Title IX actually require colleges to keep their undergrads “safe” from harassment, and, if so, what is the scope of the power granted to the school to do so?
Not that much smaller. For the 20/80 split, the margin of error would be about 4%. Note that they’re giving the 99% confidence intervals; I thought usually they gave 95% confidence intervals, which are smaller.
I know that’s what you were getting at. I seem to be doing a very poor job of explaining things today, so I apologize for being a bit obtuse. It doesn’t matter if he knows his tweets reach her, it only matters if he intentionally directs speech to her. Just talking out into the world, even if she hears it, isn’t enough.
Actually the court does. And the court will do so by examining the law, which thankfully we can all also examine. I’m really not sure why you think the narrow tailoring aspect of the order comes into this. The question isn’t whether the order was narrowly tailored but whether enforcement was proper. The order can be as perfect as you like and it doesn’t matter at all if it was improperly enforced against protected speech.
I don’t think anyone has raised the constitutionality of the order itself. Maybe I confused you when I brought it up to illustrate the distinction between restrictions on speech and restrictions on contact. If so, I apologize. The order does have to be narrowly tailored which is why it focuses on contact rather than on types of speech. I posted a Kansas TRO earlier in the thread if you want to look at the language they use.
@Ohiodad51: I haven’t read the trial court order so I don’t know if it even considered the jurisdictional aspect. The court may also not have felt it necessary to address, since if KU violated the terms of its contract there’s no need to get into the constitutional questions. I also am not sure I have more experience in this area than you. First amendment law just happens to be an interest of mine and I try to stay current on it.
The Title IX question I agree is interesting. My guess is with Chevron deference Title IX means what the agency says it does. I would have to look at Title IX again, but I don’t think it’s so clearly worded such that a court would stop at Chevron step one. Even if they have powers equivalent to a court to prevent harassment though, they still can’t violate the First Amendment.
And I say that if he knows his tweets are reaching her, and he tweets “If I could only say one thing to you…” he knows perfectly well that he IS saying that one thing to her, and he is intentionally directing that speech to her.
@Demosthenes49 I would agree there are any number of questions involved both in this case and the larger issue with Title IX. And I have probably hypothesized far too many from what is in front of us. That’s what happens when we start close reading a newspaper article and trying to extrapolate constitutional principles from it.
And I think @hanna got the constitutionality of the order from me. I was trying to make the point that there are two different things involved here (at least), and that simply stating that a college has the general ability to act in a certain area (issue some type of no contact order between its students) doesn’t mean that that power is unlimited, It still needs to pass constitutional muster. Like you I think, I find the fact that there is no mention of further court proceedings kind of telling on the point of whether someone can tell another not to tweet anything short of a direct threat directed to another person. .
Fox News was going ballistic over Dear Colleague last night with respect to the Amherst case. As they described it, the guy got railroaded and seems to have a slam dunk winner of a case against the school.
What’s the real story on that one?
“Actually the court does [decide what questions to ask].”
Yeah, I was talking about here on CC. The court isn’t speaking here, and it wasn’t a court that said I was asking the wrong question.
“I find the fact that there is no mention of further court proceedings kind of telling on the point of whether someone can tell another not to tweet anything short of a direct threat directed to another person.”
This data point is about as informative as the fact that a case settled. There are as many reasons why that could happen as there are cases. Don’t you think it’s plausible that an abused girlfriend may have stopped cooperating with the justice system, resulting in the abandonment of the matter? In my experience in domestic disputes, that happens about 95% of the time. Maybe 99.
@hanna, just a question, but are you a lawyer?
@“Cardinal Fang”: You’re slowly inching the scenario closer to direct contact, which of course could be prohibited. We don’t know that he knew she was looking and I don’t recall him saying anything like “If I could only say one thing to you…” Even had he done so, I think a court is going to have a hard time finding contact when she has to affirmatively go look at his tweets. If she initiates contact he cannot be found in violation of the order.
@Ohiodad51: The lack of further court proceedings is definitely odd. One would expect, in a stalking scenario, for the accuser to run to the court about violations of a protective order.
@Hanna: You’re right that the court isn’t speaking here, but it’s not as though we’re ignorant of what the court will look at. The court is constrained by the body of law surrounding this issue. The court must examine this case on either contractual or constitutional grounds (or both). The trial court opted for the contractual issue, but had it opted for the constitutional issue the standard applied to these cases is quite clear. There is no basis in law for the court to state that because it has the power to enjoin certain conduct that the college does too.
Yes, I am a lawyer by training. Also an alumna of two federal clerkships.