I’m directed not to contact my ex. (1) I call him. (2) I’m so distraught that I call a suicide hotline and say bad things about him. Unbeknownst to me, my ex is working the suicide hotline.
(1) I email him about how awful he is. (2) Someone has been playing around with my email settings. When I attempt to email my best friend about how awful my ex is, unbeknownst to me the email also goes to my ex.
In the (1) cases, clearly I have violated the order. But surely you’re not going to say that in the (2) cases I violated it.
No, the hearing panel issued a report which stated the grounds upon which the expulsion was based. The panel included the car incident with related details, his repeatedly physical following of her and making unwanted contact which included the tweets.
Not following you @CF --"no contact " letter was Aug. 14, 2013 - he continued tweeting. Second email sent to him on August 23, 2013 referencing his violations and threatening sanctions. He tweeted next day. October 18th he was notified of hearing to be held on November 4th. A few days later panel issued their findings based on conduct referenced in my post #1861 and 1862. November 13 he was notified of expulsion.
My understanding-- which might be wrong-- is that the tweets proved to be the last straw. The amici arguments I’ve been reading are all about the tweets, not about any other objectionable behavior.
He was expelled for violating Article 22 A of the Student Conduct Code which states :
The panel’s findings are embedded in the Judge’s decision and are a 2 page litany of the conduct upon which they found he violated that Article. They include what I referenced and more. One section was dedicated to the tweets and his continued disregard of the “no contact.”
Here’s how I am looking at this — KU banned “contact” not speech. If he had tweeted " You are the most beautiful woman to ever walk the campus and I will love you till my dying breath" I would argue that is a violation of the “no contact.”
My understanding is that there are a few boxes we could fall into. It branches accordingly:
Did KU have jurisdiction to enter the inital order? (uncontested, and KU almost certainly had authority)
Did KU have jurisdiction to bring an enforcement action (this is where the discussion of things running onto campus and causing substantial disruption comes in)
Did it do so properly? (here is where the university code comes in)
4A: Did Accused violate the order by contacting the Accuser? (this is where "directed to" comes in, in determining whether KU regulated not speech but conduct. However, if the tweets count as conduct I think there are serious overbreadth concerns. There may also be as applied content-based or viewpoint concerns) (so far as I know, KU is actually not claiming this and has made statements referencing the content of the tweets)
4B: Did Accused violate the order through the content of his tweets? (if we are looking to content then this appears to be a content-based restriction subject to strict scrutiny). (this is what the university claims it did.)
Accused claims violations of 3 and 4B.
I believe this is mostly correct. If the accused intentionally used third parties to convey information, that would probably fit within contact. It starts getting tricky when those 3rd parties act independently. The cases I’ve seen generally require the accused to prompt the third party. See, e.g., State v. Egge, 611 N.W.2d 573 (2000) (contact occurred where Egge gave the “agent S.B.'s phone number, directed him to call S.B. on his behalf, and knew the agent would call S.B.”); Com. v. Hughes, 795 N.E.2d 594 (contact where “the defendant intended to communicate the threat to the third party who acts as intermediary,” and the brother in this case was the intermediary who also functioned as the go between for communication); Com. v. Drummy, 853 N.E.2d 221 (2006) (“contact has been interpreted broadly… and includes phone calls made to the victim at a defendant’s behest by third parties”).
I’ve also seen cases where repeated contact with the accuser’s family in which the accused repeatedly gave out deeply sensitive information about the accuser qualified as “contact.” Johnson v. Arlotta, 2011 WL 6141651 (though I think the court’s constitutional discussion in this case is clearly erroneous in light of the Supreme Court’s decision in Brown v. Entertainment Merchants Assoc., 131 S. Ct. 2729 (2011) in which the Court held that it would not be adding any new categories of unprotected speech. The Johnson court predicated its decision on analogies to true threats and fighting words, and saying that the speech equally lacked value here. Probably true, but irrelevant, since that is not the test for protected speech.)
In any event, I am deeply skeptical that “posting to a website generally viewable by the public, including members of the accusers inner circle, and those members affirmatively viewed the accused’s speech and then communicated that speech to the accuser without any prompting by the accused” constitutes “contact.” If it does constitute contact, then the speech restriction is so broad that it is likely unconstitutional.
KU predicated its initial order on more than tweets, certainly, but its enforcement action was entirely based on them. KU said as much in its appellate brief.
@Demosthenes49, I don’t know if this matters but were the tweets public?
Maybe I am misreading something but I don’t understand the skepticism. People have been using third parties to threaten people since people have existed.
The young use social media to communicate. My daughter posted something personal on facebook and she received 300 responses from her friends.
My niece started following me on twitter. I have no idea why. So I asked to follow her. Her tweets weren’t open to the public, She has over 1,000 followers. I had no clue. I have no idea what she is writing about. I know CF would understand.
@dstark: That’s exactly the point though: people have been using third parties to communicate forever. That’s not the same as someone coming and looking at a message and then relaying that message, all without the prompting of the speaker. If the accused in this case told a third party to relay his information to the accuser, that is classic indirect contact, not a speech issue, and he’s done. I don’t think KU is even alleging that though.
@Harvestmoon1: Yes. Those actions formed the basis for the University issuing its no contact order. I don’t think anyone disputes its right to do so. The only thing added to that to bring about enforcement was the tweeting (I assume that’s the verb?). By simple subtraction, and though KU tries mightily to conflate events in its brief, the only predicate for enforcement was the tweets.
@Demosthenes49, I think the prompting is understood. I tell Bill I am going to kick John’s butt. I don’t have to tell Bill to tell John. I know Bill will tell John. That’s why I tell Bill.
@dstark: I’m not sure that’s necessarily enough to be contact, but that doesn’t matter because that’s not what we have here. Accused posts a message on twitter. Some number of people (up to and including all, if it’s public) have access to it if they want to go look. Some go and look and then tell the accuser about it. There’s so much third party independence here that I don’t see a constitutional way to have this count as contact. Courts generally require the third party to act at the request of the accused, which no one alleges happened here. Severe and pervasive contact may also count (Johnson went on for 2 years), but again that’s not what we have here.
I would like laws to reflect reality and the reality is people can use social media to threaten others.
I don’t see why the third party independence matters. Especially if I know that if I tweet something, my tweet will be passed on. You can forward tweets to others. At least public tweets. So maybe, maybe, public tweets matter in this case.
Also, if the tweet is public, anybody can see it…even if the tweet isn’t directed at a particular person.
@Demosthenes – see bottom of pg. 23 of appellate brief. It clearly states the grounds upon which the expulsion was based. Specifically references car incident, repeatedly following her and making unwanted contact including physical and electronic… Full text is in Judge’s decision includes additional specifics…
@HarvestMoon1: the hearing for the expulsion based on the alleged violation of the no contact order. Re #1877: They included all of their bases for the original order in their reasons for the enforcement. But, of course, conduct can’t violate an order when the order comes after the conduct.
@dstark: Law reflects reality, but people have a tendency to assume reality contains things in line with their political preferences (for a no longer controversial example, see “super predators”). This is especially true when it comes to speech (see the attempts to make anti-war speech illegal during Vietnam). To balance that impulse, we have a constitution with certain requirements. One of those is the protection of speech, which is at issue in this case.
So I asked to follow her. Her tweets weren’t open to the public, She has over 1,000 followers. I had no clue. I have no idea what she is writing about. I know CF would understand.