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Yes, even Conservatives have Free Speech Rights

Colleges & Universities: America’s graveyard for the First Amendment? Witness one university’s war on a conservative in its own Star Chamber.

Neil O’Brien-Fresno Bee Staff Photo

Neil O’Brien is a conservative crusader of sorts. While a student at Fresno State University, he founded Young Americans for Liberty, was active in the Tea Party, and was a regular at SGA meetings. He was highly critical of the Fresno State University faculty and administration. He was quick to criticize the University administration for its support of the then SGA President who was an undocumented illegal immigrant. For a good look at O’Brien’s criticism of the illegal immigrant, you can watch this video. He also derided the administration for its support of the DREAM Act. He went so far as to file a public records request asking for “administration salaries and other issues.” He started a website posting information about the SGA president. In short, he was a real pain in the a** to the powers that be, and he was a CONSERVATIVE – perhaps his most heinous offense. His outspoken speech cost him dearly, causing him to seek redress with the California state courts and later with the federal courts, prompting a ruling from the Ninth Circuit Court of Appeals earlier this month.

Because of his outspoken criticism of the university and because of his conservative beliefs (as detailed above), according to his complaint, the university targeted him. The assistant dean of student affairs “requested that students and other faculty members gather information and complaints to use against” O’Brien. The director of alumni relations e-mailed university administrators (one of whom was the university communications director) beseeching the others “to do something” about O’Brien. The university even deleted some of O’Brien’s posts on the university Facebook page and “permanently block[ed] him from posting” on certain topics, despite allowing others to post “pro-radical left leaning viewpoints in support of [the student body president] and other leftists posts to remain.”

What landed O’Brien in disciplinary hot water and in court ( according the university) unfolded in May of 2011 when O’Brien confronted faculty members after having read “La Voz de Aztlan.” “La Voz de Aztlan” was an insert in the Fresno State University newspaper. The insert was published by the Chicano and Latin American Studies Department. It contained a poem which bashed America, describing her as “America the land robbed by white savages…the land of biggest genocide…place of greed and slavery…the rapist of the earth…land of the brute, the bully, the land of glorified killers, the eater of souls’”

Copy of the Poem AMERICA which Neil O’Brien confronted administration officials over.

Photo from Neil O’Brien (published on The Blaze)

After reading this, O’Brien decided to “confront” the faculty adviser for “La Voz” at the adviser’s office on the second floor of the social sciences building. O’Brien alleged that while he was waiting in the hallway area outside of faculty adviser’s office, he heard another professor tell the faculty adviser that “the faculty should post ‘wanted’ signs with pictures of [O’Brien’s] face on them to mock [him] and to serve as a warning to other students and faculty as to what [he] looked like and warn of [his] potential presence.”

O’Brien then entered the faculty adviser’s door with his video camera and filmed a Q&A on the poem, specifically asking the faculty adviser if he had approved of or authorized the poem’s publication. The faculty adviser ignored O’Brien and notified campus police. O’Brien left and walked to the door of the faculty member he heard make the wanted poster comment and filmed her to see her response to whether she had authorized the publication of the poem. This professor told O’Brien she would not speak with him and closed her door. She too notified campus police. Both faculty members lodged criminal complaints with the campus police. Apparently, O’Brien voluntarily turned over a copy of the video to campus police. The campus police wrote up a report and after investigating the case found there was no criminal conduct with which to cite O’Brien. O’Brien alleged that the faculty members demanded the police “rewrite the report to show that [O’Brien] was threatening and intimidating.” The police refused (at least according to an inference made by the Ninth Circuit). During the criminal investigation, according to O’Brien, the faculty members gave false statements that were contradicted by the video.

Having failed in their attempt to arrest and criminally sanction O’Brien, the university then initiated disciplinary proceedings against him, alleging he violated the university’s Student Conduct Code – in that he engaged in conduct that “threatens or endangers the health, or safety…including physical abuse, threats, intimidation, harassment…” O’Brien was ordered to appear at a “judicial conference.” If he failed to appear, he would be subject to a “disciplinary hold” on his record.


O’Brien showed up for the hearing with an attorney, who was promptly refused admittance. The hearing was a farce. Since O’Brien was charged with conduct that “threatens or endangers the health, or safety…including physical abuse, threats, intimidation, harassment…” he requested the hearing officer watch the video. According to allegations of the complaint (which the court at this stage of the proceeding must assume as true), the hearing officer refused. Can you imagine, the most unbiased and relevant piece of evidence simply ignored? Does this sound like deliberate indifference? Prejudgment? To his credit, O’Brien did not give up. According to the complaint, it gets better. Prior to the hearing, O’Brien’s attorney did his homework and interviewed the lead detective from the university police who investigated the professors’ allegations of harassment. O’Brien attempted to call this detective who was willing to testify that the two professors were not “truthful” when they gave statements describing the event to the police and to describe what the video showed. As a brief aside, the professors asked the university police to arrest the plaintiff, but after an investigation, the campus police refused to bring criminal charges. In fact, the detective was outside the hearing room in a lobby area near the plaintiff’s attorney while the hearing was underway. The hearing investigator, a dean at the school, then left the hearing room and called the university police department. This same hearing investigator returned to the hearing and informed everyone that the detective was “unavailable” and that “since the matter was an ongoing investigation, none of the officers or detectives would be able to come to come testify or comment on it.” Despite the obvious hearsay objections here, isn’t the hearing investigator now a witness in the case? Can’t wait for her deposition to see exactly what she said or did (if anything) to secure the unavailability of this critical witness for the student who by the way was right outside the door and apparently ready and willing to offer testimony.

After the hearing, the disciplinary officer issued his findings to the Vice President of the University who upheld the disciplinary officer’s determination. However, the VP added an additional sanction not recommended by the disciplinary officer. It was this additional disciplinary sanction that was the kicker – the VP placed the student on “disciplinary probation” through the end of the 2012 semester (which would run until his anticipated date of graduation and therefore placing him on probation for the rest of his undergraduate academic career). This additional sanction would prohibit the student from retaining his officer status with the campus chapter of Young Americans for Liberty and as a result of the disciplinary probation, he could not serve on the student government association.

The plaintiff filed suit in state court. The case was later removed to federal court where the plaintiff amended his complaint to allege (among other constitutional violations) that the school retaliated against him for engaging in protected speech and conduct. The school filed a 12(b)(6) motion to dismiss the complaint alleging that the student failed to allege facts sufficient to show that the university’s and professors’ conduct which the lower court granted (the court also held the defendants were entitled to qualified immunity)


Eugene Volokh argues for Free Speech before Ninth Circuit in O’Brien v. Welty.

The Ninth Circuit focused their inquiry to a single issue: even if the university’s decision to discipline O’Brien was permissible, was the university’s motive or reason for doing so based on retaliation for his speech? Here’s how the Ninth Circuit phrased it: “O’Brien’s conduct in the videotaping incident in this case was appropriately subject to discipline. The only issue in dispute is whether defendants imposed the discipline as retaliation for O’Brien’s protected activity.”

The Ninth Circuit affirmed the lower court, finding that university’s decision to discipline the student’s conduct was permissible.

“Professors at work in their personal offices do not generally expect to be confronted without warning by a student asking hostile questions without warning by a student asking hostile questions and videotaping. If the uninvited student refuses to cease hostile questioning and refuses to leave a professor’s personal office after being requested to do so, as O’Brien [the student] admits occurred here, the professor may reasonably become concerned for his or her safety. O’Brien’s behavior as described in the FAC [first amended complaint] could be considered ‘harassment’ or ‘intimidation’ and threatening under and objective reasonableness standard. It was thus permissible for Fresno State to impose discipline on O’Brien for this conduct under its reasonable and viewpoint-neutral regulation.”

However lawful the university’s conduct was, if it was motivated by retaliation for the student having engaged in activity protected under the First Amendment, then the student makes an actionable First Amendment claim. The legal test O’Brien must show was that “the defendants’ actions in disciplining were substantially motivated by his protected speech or excessive conduct.”

The lower court denied the retaliation claim, but the Ninth Circuit reversed.

What about the due process the university purportedly provided defendant in his disciplinary hearing?

“We do not hold that O’Brien’s due process rights were violated in the hearing; that question is not before us. But we do point out that the university, and several of the defendants, did not facilitate-and indeed impeded-O’Brien in his attempt to document his side of the story.”

This is not exactly a credit to a process which should include an impartial arbiter whose goal should be the search for the truth, as opposed to one decidedly “manipulated” (as claimed by O’Brien) to a predetermined result.

The Ninth Circuit concluded that additional “sua sponte” sanction by the university placing O’Brien on academic probation for the rest of his undergraduate career “took direct aim at O’Brien’s political activities on campus and forbade him from engaging in such activities for the remainder of his anticipated time at Fresno State.”

The Court did take notice of O’Brien’s expressive conduct and speech prior to his confrontation with the faculty members, which was alleged in his complaint and which the Court felt was relevant in its evaluation of O’Brien’s retaliation claim.

Imagine the roles here were reversed, and the university cracked down on the Fresno State newspaper and engaged in a campaign of intimidation and speech suppression against the editor. Not too long ago, this type of speech was criminally prosecuted and considered subversive, particularly in times of war. Haven’t we graduated from those times?

A fair reading of the Ninth Circuit’s opinion along with construing the allegations of the plaintiff’s complaint as true, makes you really wonder who was the real entity that engaged in a conduct of “intimidation” and “harassment.” Was it the school or the pupil? The rule makers are rarely subject to the rules they enforce, and that is dangerous state of affairs. This is why we have a constitution and an independent judiciary to vindicate the rights of those who seek redress for constitutional wrongs – something the Ninth Circuit took seriously (it granted oral arguments on a 12(b)(6) dismissal appeal).

If the allegations of the complaint (technically the Plaintiff’s First Amended Complaint) are deemed true (which the court must assume as true under the legal standard at this stage of the lawsuit), Fresno State should be ashamed of itself. The opinion, with its reference to allegations of the university’s flagrant disregard for due process is disconcerting, to say the least.

If nothing else, the allegations of the complaint offer a fascinating account of a star chamber like forum where unwary students are stripped of their most basic constitutional rights. This so-called hearing would never have seen the light of day but for the tenacity of O’Brien to vindicate his free speech right.

In Alabama, we have a state motto: Audemus jura nostra defendere, or We Dare Defend Our Rights. Unfortunately, many students do not have the resources or the courage to take on authorities who violate their constitutional rights. They just want to cash in their ticket, get the diploma and move on. Kudos to Mr. O’Brien for having the guts to defend his rights. And kudos to the Ninth Circuit for not slamming the courthouse doors on the First Amendment and allowing this case to proceed on its merits…at least for now.

One can only imagine the countless students in this country who have been summoned to appear before a university disciplinary board and subject to a process wholly deficient in due process safeguards. I fear this is occurring quite frequently but with little oversight or reporting. Until more students dare assert their rights, universities and colleges will continue violating the First Amendment rights of its most vulnerable constituents – its students.

And in case you think free speech issues are remote ones, our own University of South Alabama administration officials have been rebuked once by a Mobile federal judge after they engaged in suppressing speech. Just last week university campus police engaged in unconstitutional conduct for detaining and citing a concealed carry student advocate on campus based on an anonymous call.

The fight continues as school campuses have become graveyards for the free speech and the First Amendment. Students should not be intimidated by these tactics. They should dare defend their rights.

If you are curious about the O’Brien case you can watch a Video of Oral Arguments 13-16279 Neil O’Brien v. John Welty

Additionally, The Institute For Justice Short Circuit podcast has a nice review of the case.


UCLA Law Professor Eugene Volokh wrote an amicus brief on behalf of SPLC and Foundation for Individual Rights in Education (FIRE). He also participated in the oral argument. His response to the ruling was one of concern- Warning to student journalists: ‘Asking hostile questions and videotaping’ may be treated as ‘threatening or endangering health or safety.’

“I agree that universities must have the power to restrict speech that genuinely threatens and intimidates people (e.g., true threats of violence). But defining threat and intimidation as broadly as the Ninth Circuit does here strikes me as quite dangerous for campus speech.”

* Eugene Volokh participated in oral arguments in this case on behalf of the plaintiff. Volokh is an American law professor, the Gary T. Schwartz Professor of Law at the UCLA School of Law. He publishes the blog “The Volokh Conspiracy”.

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