Anti-Speech Movement on the March at Orange Coast College

Ryan T. Darby Ryan T. Darby 0 Comments

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Watching college professors bully conservative students over their political beliefs is one of my pet peeves, going back to my days as a College Republican. Watching college administrators punish a conservative student for blowing a whistle on a bullying professor is absolutely perverse.

As we all know by now, that is exactly what occurred last week at Orange Coast College in Costa Mesa, California. A student recorded his psychology professor ranting that Trump voters are terrorists:

“Our nation has been divided. We have been assaulted. It’s an act of terrorism. One of the most frightening things for me, and most people in my life, is that the people committing the assault are among us.”

She also attempted to ostracize any Trump supporters in the class by directing them to stand and face a public shaming. One student who was present told CBS Los Angeles:

“She was saying dehumanizing things about Trump supporters,” Webb says, “and nobody felt like they could stand up. Me, in fear of my grade. And then she said, ‘I bet none of you will stand up because you’re embarrassed for yourselves. The rest of the class should look out for them and know who to protect themselves from.'”

This doesn’t encourage discussion; it silences dissent. It’s the classroom version of brandishing a billy club and asking, “So, any Trump supporters in here?” It’s an intimidation tactic; it’s hateful; and it stunts the academic process.

Of course, rather than discipline Prof. Olga Perez Stable Cox for bullying her students, Orange Coast College threw the book at the student who recorded her. The dean imposed a litany of punishments: a one-semester suspension, a subsequent one-semester probation, and requirements that he write an apology letter to Prof. Cox and a mea culpa essay to the dean.

In her letter announcing the punishment, Interim Dean Victoria Lugo wrote: “It is my hope that this experience will lead you to truly think through your actions and the consequences of those actions when making decisions in the future.”

Why does it seem like condescending statements like this are always made by those with the worst judgment? Dean Lugo should be absolutely ashamed of herself. Schools exist to educate and empower students, and Lugo has subordinated the student interest for that of the Coast Federation of Educators––the professors union.

Let’s be clear that union president Rob Schneiderman lobbied for the charges, praised the punishment, and condemned “the hurtful choices these republican [sic] club students made.” He also appears to lament that “republican [sic] club” members were not punished for “allegedly discuss[ing] the recording” at their meeting.

We can overlook Schneiderman’s tenuous grasp of English punctuation if only to emphasize his total incomprehension of the First Amendment’s guarantees of the rights to speech and association. Such ignorance appears to be a common theme throughout this unfortunate affair.

Proponents of the punishment argue that the Education Code prohibits recording in classrooms. However, applying that law would be unconstitutional if it conflicts with the First Amendment.

The Supreme Court has held that conduct may be “sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments.” These elements include “whether [a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.”

In other words, conduct–such as video recording–may be constitutionally protected if the actor intends to convey a message and that message would be understood by others.

Those elements appear to be met in this case. The news reports depict a student who intended to generate awareness of a publicly employed educator who deliberately harassed and intimidated her conservative students.

Recent case law applying the First Amendment to recording police officers without consent is also instructive. The Seventh Circuit devised the following test: whether “(1) the officers are performing their public duties; (2) the officers are in public places; (3) the officers are speaking at a volume audible to the unassisted human ear; and (4) the manner of recording is otherwise lawful.” Again, those arguments are most likely satisfied here.

I also see interesting parallels to qui tam, or whistleblowing laws. Going all the way back to English common law, our legal tradition has protected courageous individuals who have exposed corruption and other unlawful actions. The student in this case exposed a publicly employed professor who engaged in inappropriate behavior in class. He is a whistle blower, and it’s unfair to punish him for reporting this.

Curiously, Schneiderman frames the issue as implicating Prof. Cox’s speech, arguing that recording makes the faculty “less likely to be expressive.” Sure, in the sense that recording makes police officers less likely to use excessive force, politicians less likely to swindle, bank tellers less likely to steal, and customer service reps less likely to treat people like crap.

In other words, it makes professors less likely to verbally abuse their students!

We all know that most people carry a phone that’s capable of video recording and Internet access, so we are all on notice that everything we say or do may result in online fame or infamy. Why exactly did Prof. Cox think this well-known principle would not apply to her, particularly in a room full of millennials?

The answer, I suspect, is that she’s used to bullying conservative students. Anti-conservative sentiment has been prevalent within academia for a very long time, and it has fostered a repressive culture where many social-science professors feel entitled to impose their viewpoints and demonize any dissenters. Apparently the ivory tower comes with a pretty sizable moat.

True academia––the free flow of competing ideas based upon empirical data in a collegial atmosphere––is a wonderful thing, and one of the bedrocks of Western society. In my experience, great scholars are proud of their work product, and they want to broadcast those ideas to as wide an audience as possible. After all, what good is an idea if no one hears about it?

Sadly, it appears that Prof. Cox is not proud of her ideas; to the contrary, she appears so apprehensive about them that she limits them to a captive audience of sympathetic minds. Perhaps she realizes that most of society––even those who loathe Trump––will reject her obnoxious rhetoric. And, I suppose that begs a question: If she is not confident publishing her ideas to society at large, then what business does she have espousing them to those preparing to enter society? Perhaps Prof. Cox would best serve her students by thinking before she speaks, as the rest of us do.

Fortunately, it looks like people have had enough of this nonsense. The Orange County Register pushed for the Board of Trustees to be recalled and the President to be fired if the student is not reinstated. It also upped the ante by pledging to publish daily editorials if necessary “about this injustice until it is remedied.”

Good for the Register. The anti-speech movement is marching forward at Orange Coast College, and the time has come to draw a line in the sand and push back.

Ryan T. Darby is an attorney who practices free speech law in San Diego.

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