Legal Commentary

Third Circuit Strikes Down Another Campus Speech Code

By Eugene Volokh

The case is McCauley v. University of the Virgin Islands, decided today. The court holds that the K-12 school cases ? ?Tinker, Fraser, Hazelwood, Morse, and other decisions involving speech in public elementary and high schools? ? ?cannot be taken as gospel in cases involving public universities,? and strikes down (at least when applied to speech) university bans on 

1. ?Displaying in the Field House, softball field, soccer field, cafeteria and Reichhold Center for the Arts any unauthorized or obscene, offensive or obstructive sign,?
2. ?[C]onduct which results in physical manifestations, significant restraints on normal behavior or conduct and/or which compels the victim to seek assistance in dealing with the distress,? and
3. ?Verbal Assault, Lewd, Indecent or Obscene Conduct or Expressions on University Owned or Controlled Property or at University Sponsored or Supervised Functions,? when applied to speech that does not fit within the ?obscenity? exception to First Amendment protection (an exception that?s limited to hard-core pornography).

The Foundation for Individual Rights in Education, which filed an amicus brief in the case, has more.

Full post as published by The Volokh Conspiracy on August 18, 2010 (boomark / email).