A conservative student activist who was sanctioned for violating a prohibition on harassment can try to hold a California university liable for retaliating against him for expressing his free speech rights, a federal appeals court decided Thursday.

“The First Amendment does not give a free pass to students who violate university rules simply because they can plausibly show that faculty or administrators disapprove of their political views,” Judge William A. Fletcher, a Clinton appointee, wrote for a unanimous three-judge panel of the U.S. 9th Circuit Court of Appeals.

But university faculty may be held liable if they seek to “punish and muzzle” a student in retaliation for expressing views they oppose, the court said.

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The case was brought by Neil O’Brien, who in 2010 enrolled as a junior at Fresno State University.

He formed a Fresno chapter of a conservative Young Americans for Liberty, organized events for the Central Valley Tea Party and attended student government meetings, the court said.

He also strongly objected to the university’s support of a student body president who did not have permission to immigrate to the U.S. and the administration’s endorsement of the DREAM Act, a federal proposal to provide a pathway for immigrants to obtain permanent residency in the U.S.

O’Brien expressed his views on the Internet and filed public information requests to obtain the salaries of university administrators, according to his complaint.


In 2011, O’Brien read a poem published in a supplement to the school newspaper by the department of Chicano and Latin American Studies.

The poem described the U.S. as “the land robbed by the white savage” and “the land of the brute, the bully, the land of glorified killers, the eater of souls,” according to O’Brien’s lawsuit.

O’Brien went to the offices of two professors in the Chicano and Latin American Studies and asked questions while videotaping them. The professors refused to respond and eventually filed a complaint against him, according to the ruling.

O’Brien was found to have violated a code prohibiting threatening harassment. He was banned from coming within 100 feet of the Chicano and Latin American Studies offices and classrooms and from entering the second floor of the social sciences building unless he had a class or an appointment.


The disciplinary probation also prevented him from being president or treasurer of the Young Americans for Liberty and from holding any student government position.

O’Brien sued, charging that the university regulation that led to his punishment was unconstitutional and that he was illegally retaliated against for expressing his right to free speech.

The 9th Circuit upheld the regulation, finding “it permissibly authorizes California State University branches to discipline students who engage in harassment or intimidation that threatens or endangers” others.

The court also found that O’Brien’s conduct was appropriately subject to discipline.


But the 9th Circuit said O’Brien could sue for retaliation based on allegations that faculty and administrators punished him for expressing views they disliked.

“Retaliation for engaging in protected speech has long been prohibited by the First Amendment,” the court said.

The panel cautioned, however, that its ruling should not be read too broadly.

“Our holding is by no means intended to protect from discipline students whose speech or conduct may reasonably be seen as threatening or constituting a danger to members of the university community,” the panel said.


UCLA law professor Eugene Volokh, representing the Student Press Law Center and the Foundation for Individual Rights in Education, argued the case in support of O’Brien.

Twitter: @mauradolan

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