Posted by Eugene Volokh:
"Emotinal Safety" / "Emotional Harassment" on University Campuses:
http://volokh.com/archives/archive_2008_08_10-2008_08_16.shtml#1218732716
[1]The Daily Record reports:
The University of Maryland, Baltimore County will change its
facilities-use policies after a student pro-life group claimed its
First Amendment rights were violated when its display featuring
graphic images of aborted fetuses was moved away from a prominent
public area on campus.
While lawyers for UMBC said in U.S. District Court in Baltimore
Friday that the school�s decision to move Rock for Life-UMBC�s
display was �content neutral,� it agreed to revise rules as to when
university officials are allowed to move a student group display
without notice, such as inclement weather or safety concerns.
The two sides will give Judge J. Frederick Motz a joint status
report Sept. 19 on the implementation of the new policy, at which
point the student group can decide if it wants to continue its
lawsuit by challenging the university�s speech code....
Members of Rock for Life, a registered student organization at
UMBC, were given permission by university officials in mid-April
2007 to put up a display outside one of the university�s main
buildings on April 30, 2007, according to Rock for Life�s complaint
filed in April 2008.
The display was from the Genocide Awareness Project, a traveling
exhibit for college campuses featuring graphic images of abortion
sponsored by The Center for Bio-Ethical Reform, a California-based
pro-life group. The display consists of either 6-foot-by-13-foot
posters or 4-foot-by-6-foot-posters.
But, according to the complaint, the group was told to move its
display two times -- once on April 25 and again on April 30 before
the display was set up -- to progressively �more deserted� areas on
campus.
Aden said the university moved Rock for Life because of its
message, noting larger events and other student groups have used
the space Rock for Life originally requested....
But Sally L. Swann, an assistant attorney general representing
UMBC, said the display was moved because the proposed 24 large
posters would obstruct building exits and posed a fire hazard....
Lawyers for both sides met during several lengthy recesses to
hammer out the details of the newly worded facilities-use policy,
with the university removing the phrases �emotional safety� and
�emotional harassment� from the list of reasons officials could
move a display without notice....
Whether the policy was applied in a content-neutral way in this case,
it seems pretty clear that "emotional safety" and "emotional
harassment" language in such policies is easily usable in content- and
viewpoint-based ways. Certainly the one UMBC policy that I could find
that uses these terms -- [2]Article V.B of the Code of Student Conduct
-- seems unacceptably vague and, in its most plausible interpretation,
unconstitutionally content-based (especially given that the university
seems to concede that it is are applicable to displays and not just
to, say, individualized threats conveyed to a particular person):
Any student found to have violated the following rules and
regulations is subject to the sanctions outlined in Section C ...:
...
2. Behavior Which Jeopardizes the Emotional or Physical Safety of
Self or Others.
This rule prohibits, but is not limited to, the following: ...
f) physical or emotional harassment; ...
References
1. http://www.mddailyrecord.com/article.cfm?id=146633&type=Daily
2. http://www.umbc.edu/sjp/articles/articleVb.html
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