Then what am I missing about your point why the strict scrutiny standard is not triggered here, assuming that a court would ever reach the merits of the validity of the order? Maybe I am just missing some predicate part of your argument.
According to this article, he did tweet exactly that:
[quote]
“If I could only say one thing to you it would probably be ‘Go **** yourself you piece of ■■■■.’ #butseriouslygo****yourself #crazyassex,” Yeasin tweeted on Aug. 23. /quote
https://www.insidehighered.com/news/2014/11/06/u-kansas-asks-court-reconsider-expulsion-ruling
I don’t think she could go affirmatively look at his tweets, because she was blocked. But we can guess, because that’s the way things work, that his twitter feed goes to a lot of her friends. And of course, we know that he knew that she was seeing his tweets.
Let’s say you think he was prohibited, by the court order and by the college, from walking up to her and saying “Go **** yourself.” He was also then prohibited from emailing her, phoning her, texting her or mailing her these same things, I assume, and also prohibited from writing “Go **** yourself” on a piece of paper and having a friend deliver that message. Wouldn’t he then be prohibited from writing “Go **** yourself” on some document or something that he knew was going to her, even though he didn’t directly send it? A birthday card from a friend, her water bill, the paper airplanes that her friend was throwing into her window? So then how is this different: he puts out a message directed to her, in a medium that he 100% knew was going to her?
Agree with Momrath that the WashPo Kaiser survey seemed interesting and well done, but then did not (at least in the paper presented) ask any questions to differentiate things like “rubbing up against sexually even if over your clothes” from what, at least to me, are much more serious forms of sexual assault. And the definition of forced touching was only read if required so not clear how it was interpreted. I really wonder why (given the detail in other sections) the survey did not go on to ask which form of unwanted sexual contact was experienced.
I did think it was interesting that a higher percentage of women than men thought it was unclear whether it would be sexual assault if both parties were drunk.
@“Cardinal Fang”: Your point is well taken, thanks for updating me on his language. You’re right to point it out as it can make a difference. That said, I still think the problem of having to go look is nearly insurmountable. If he had a demonstration near her house and said “you don’t have to listen,” that wouldn’t work. On the internet though, people generally need to search for things. That’s why I think the tagging is so important.
If friends repost the message, then unless its at the behest of the accused that wouldn’t qualify as contact. I suppose there may be some contrived scenario where a mutual friend tells the accused “whatever you post, I’ll post so she sees, no need to ask!” Maybe in that case- and I stress the maybe- that would qualify as indirect contact. I am not aware that we have such a scenario here.
Also, and perhaps I missed it, but how do we know he knew she was seeing his posts?
I didn’t say what standard I thought would be triggered, but you’re talking about what courts are supposed to do, and I’m talking about what they really do. And what they really do is issue automatic domestic protection orders that may or may not pass constitutional scrutiny by the standards stated in hornbooks.
This came up when I was (and I apologize for the name drop, but since my status as a lawyer at all is in question) a teaching assistant in Larry Tribe’s constitutional law class. I proposed that the other TAs and I discuss a case where an Ohio man was imprisoned for a parole violation based on fantasies he had written in his diary and shown to no one. They called his own diary possession of child pornography and locked him up. I called this thoughtcrime. The other TAs argued with me that the case was irrelevant because the court’s action was unconstitutional. Sure it was – but it HAPPENED, and the guy was still in prison at that moment. Government entities do unconstitutional things all the time, and unless you have timely ACLU help, the First Amendment is just words on the page.
Now, if I’m the appeals court evaluating the First Amendment implications of this university action (which probably shouldn’t happen here, since the trial court didn’t reach the question), my inclination is that we apply strict scrutiny and the action passes muster. I think that this publicized speech that is accessible to the local community is contact on these facts. The girlfriend’s right to equal protection (access to public education in this case) is a fundamental one, and I don’t see a way to more narrowly tailor the intervention. If she can go about her business as a student on the same campus where he studies, he needs to leave her -completely- alone. I view these tweets as not leaving her alone because their mutual friends saw them, and they were public declarations. I get it that others view this differently.
He was tweeting insulting message about her directed to her. He was warned to stop tweeting. Why did that warning take place? I was assuming that it took place because she complained that he was sending out harassing tweets. How else would the college know? They wouldn’t have been monitoring his twitter feed.
@Hanna: It’s hard to treat “but the court might act illegally!” as anything but a red herring. Yeah, it might, but it probably won’t (and didn’t) and even if it did that would hardly be a basis for evaluating the proper outcome under the law.
As for strict scrutiny, how can you possibly think a restriction on speech that includes “posting on the internet” is narrowly tailored? It’s so overbroad it runs into those problems notwithstanding running into the regular strict scrutiny problems (not to mention, what would the alternative avenues of communication be if you can’t use “publicized speech”?). I was serious before and I’m serious now: do you have any precedent supporting your claim that merely posting on the internet is sufficient to violate a no contact order and is permissible under the First Amendment?
@“Cardinal Fang”: There looks to be a lot of conjecture in there. I’m not at all sure we can reasonably assume he knew. But, even if he did know, I still don’t see her overcoming the “coming to the speech” problem. And even if she did, I don’t think that the college could regulate that speech in the first place.
Right. Assuming the block feature worked, either mutual friends alerted her or she saw the tweet on someone else’s feed. They were in the same social media circles.
To me, the pre-digital equivalent is stuffing a message directed at her in every mailbox in the dorm except hers. Is that contacting her? Again, I’m interested in the practical effect. You know she’s going to see it if you do that.
I have no problem with the Post asking about sexual assault, and reporting about sexual assault, but I too wish they had differentiated the sexual assault into rape (vaginal rape, oral rape, anal rape, rape with fingers or an object) from other, less serious kinds of nonconsensual sexual contact.
I have to wonder if the numbers just didn’t look as substantial if those forms of unwanted sexual contact are removed.
The text of the survey is online, with the results. The survey didn’t ask about the different forms of sexual assault. It’s not that they selectively reported numbers; they made the (in my view misguided) editorial decision to survey about sexual assault in general, rather than particular types of sexual assault.
The WaPo numbers are in the same ballpark as the good old “1-in-5” stat that I go crazy about. Not because 1-in-5 is inaccurate after you take the time to drill into the details. But because it is so easily distorted and misused. It is so recklessly misleading that it approaches outright falsehood.
A pinched butt and a completed rape are both sexual assaults, sure. Similarly, shoplifting at the candy store and an armed bank robbery are both thefts.
But a 20% chance of getting pinched is NOT the same thing as a 20% chance of being raped. It is simply inexcuse-able to suggest that they are.
That’s why I find the Syracuse study so far out there. It reports a rape/attempted rape chance of almost 20% during the freshman first 12 months.
@hanna, FWIW, I don’t really care whether you are a lawyer or not. I was just trying to figure out how much shorthand I could use when asking about your position.
I would also think a better analogy to the pre Internet days is hanging a sign out in front of your house. Same scope of publication, absent any actions directly targeting the presumptive victim.
@Hanna: I don’t want this to get lost: I am really, really interested in any legal support you have for your position.
@northwesty, seriously? You won’t get the real story from Fox News.
I have a relative who works for Fox. 
This explains your posts though. 
Results from possibly 27 or 28 schools surveyed on sexual assault issues are going to be released this fall. I hope the questions have a little more detail than the Kaiser Foundation survey. I hope grad students and undergrad students are separated out in the surveys too.
Why are we debating the law when the court already agreed that the University was out of line?
Stark – When you assume…
Since CNN is basically unwatchable these days, I now toggle between MSNBC and Fox. Voted for Obama in 08 and Romney in 12.
So what’s the straight story on Amherst?
The WaPo article also counts sex under false promises to be sexual assault. If a boy tells a girl that he loves her, the girl then has sex with the boy, and then the boy dumps the girl, that’s sexual assault too.
I would have thought that it would qualify as an assault on the intelligence of the girl.
@dstark, you can say that Fox is biased, or KC Johnson is biased all you want. But that is not the same as a substantive critique of the points made.
@northwesty, you also quoted the woman from Cornell that makes inflammatory comments for a living.
I don’t know MSNBC as well. My comments on Fox stand though.
I think there are disagreements about Amherst.