Law School’s No-Contact Order Violates First Amendment

A federal district judge recently issued a preliminary injunction against the University of Idaho law school, preventing it from enforcing a no-contact order it issued against members and the faculty sponsor of the Christian Legal Society chapter at the school. The disagreement started when the law school sponsored a “moment of community” in response to anti-LGBTQ+ slurs left anonymously in a classroom. CLS members joined in the show of support, gathering in prayer during the event. Afterwards, Jane Doe, a gay student at the school, approached the CLS students and initiated a discussion about their religious beliefs about marriage and homosexuality. The Court found that the conversation was short and not notably antagonistic.

Shortly thereafter, Jane Doe notified the school that the CLS members‘ conversation at the event left her feeling “targeted and unsafe.” The school responded by issuing a no-contact order against three (3) of the students. Several weeks later, Jane Doe emailed one of her professors, who also was the faculty sponsor for the CLS chapter, stating, “Your event caused me to fear for my life at the university of Idaho. I am scared to be on campus, I am scared to be in your class. I fear you. I fear the CLS. My life, my grades, my law school career are not safe with a professor that is actively working towards taking away my human rights. The group you are the admin for, subjected me and others to violent verbal abuse, in which you took the lead on and agreed with. This has created unpreparable [sic] damage to your students and faculty at the school of law.” She copied school Deans on the email, and within two weeks, the law school issued a no-contact order against the professor. In neither case did the school undertake any meaningful investigation.

The court determined that the school‘s no-contact orders were based solely on the content of the students’ speech, and therefore violated the First Amendment to the Constitution. The court noted, for example, that many students and teachers posted in opposition to the CLS students’ beliefs, but suffered no reprisals from the school. “Thus, while all of these parties’ speech was on the same topic, only one viewpoint—[students]—was deemed worthy of intervention and discipline.”

One of the school’s defenses was that its actions were required to protect Jane Doe from harassment. The court dealt with this objection by citing long-standing law that ”[t]he right to free speech cannot be curtailed simply because the speaker’s message may be offensive to his audience. . . . After all, ‘[w]e are a social people and the accosting by one of another in an inoffensive way and an offer by one to communicate and discuss information with a view to influencing the other’s action are not regarded as aggression or a violation of that other’s rights.’ ” In another section of the opinion, the court noted, “Suffice it to say, in a pluralistic society, people should honor differing viewpoints and build bridges of understanding instead of arguing that opposing viewpoints are inherently discriminatory and must be punished or excluded from the public square.”

This opinion is only a preliminary injunction, but it is an excellent analysis of First Amendment law. Schools have an obligation to protect its students from bullying and harassment, but they cannot start from the presumption that some beliefs are the same as violent action. Many schools are operating on the assumptions that “speech is violence,” but so far the vast majority of courts are not allowing that exception to First Amendment protections.