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Judicial Affairs and the Middle Finger as an "obscene gesture"
flippant
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Gonna make this as short as possible. Got a parking ticket at my university one morning, the same morning I was to buy a $100 parking permit for the semester. Of course they don't excuse it so I'm out an extra $50 on top of the $100 for about 1 hour of parking. Driving back from trying to get it excused (they refuse), I see a parking officer perched near where I park. I flipped him off while getting out of my car, then kept walking. Nothing more.
That was two months ago, and I've been contacted by Judicial Affairs about certain allegations being made against me by Parking & Transportation Services, relating to what is apparently now an "incident".
tl;dr - Flipped off state university parking cop, being charged with breach of conduct code for making an "obscene gesture".
On to my question, isn't this protected under the First Amendment? They're calling it an "obscene gesture", and that I violated this provision
but at the bottom of the conduct code it states that nothing within it can violate California Education Code Section 66301, the pertinent sections of which are below
So regarding part a), the middle finger has been protected as Free Speech in the courts around the country. I've found at least a half dozen or so by simply googling "middle finger and free speech". Obscene speech and "fighting words" are the only things not protected as free speech, of which the middle finger is neither and the courts agree.
Can the university arbitrarily include the middle finger in their definition of harassment, even when it has not been "outside a campus of those institutions"? Can I fight this on the basis of first amendment rights or am I missing the part that allows them to strip me of those rights while on their property?
That was two months ago, and I've been contacted by Judicial Affairs about certain allegations being made against me by Parking & Transportation Services, relating to what is apparently now an "incident".
tl;dr - Flipped off state university parking cop, being charged with breach of conduct code for making an "obscene gesture".
On to my question, isn't this protected under the First Amendment? They're calling it an "obscene gesture", and that I violated this provision
(6) Disorderly, lewd, indecent, or obscene behavior at a University related activity, or directed towards a member of the University community.
but at the bottom of the conduct code it states that nothing within it can violate California Education Code Section 66301, the pertinent sections of which are below
(a) Neither the Regents of the University of California, the
Trustees of the California State University, the governing board of
a community college district, nor an administrator of any campus of
those institutions, shall make or enforce a rule subjecting a student
to disciplinary sanction solely on the basis of conduct that is
speech or other communication that, when engaged in outside a campus
of those institutions, is protected from governmental restriction by
the First Amendment to the United States Constitution or Section 2 of
Article I of the California Constitution.
(d) This section does not prohibit the imposition of discipline
for harassment, threats, or intimidation, unless constitutionally
protected.
So regarding part a), the middle finger has been protected as Free Speech in the courts around the country. I've found at least a half dozen or so by simply googling "middle finger and free speech". Obscene speech and "fighting words" are the only things not protected as free speech, of which the middle finger is neither and the courts agree.
Can the university arbitrarily include the middle finger in their definition of harassment, even when it has not been "outside a campus of those institutions"? Can I fight this on the basis of first amendment rights or am I missing the part that allows them to strip me of those rights while on their property?
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you can try
but know that speech codes are relatively common in university settings (of varying legality) and fighting them alone without the help of a larger organization is nearly impossible
Right: state universities aren't private organizations.
On the subject of free speech, while I think you are in the right legally, the only way your going to overturn a poor decision by whatever body rules on this is by suing the school.
You can try, but you will lose and will probably end up worse off than just apologizing. Student Judicial reviews generally have pretty broad discretion in my experience.
Doesn't matter dude. Going to a state university isn't a right. It's a privilege. I don't feel like going into specifics right now, but I got charged with a major crime. I beat it before pretrial. However, after being charged the school charged me...except that with the school it began with an "investigative" hearing. The whole situation was bullshit to begin with, but at the end of the day the school "found me guilty" of essentially being a douchebag (that part was true however) and gave me some 40 hours or so of community service. Had I not done that I wouldn't have been allowed to graduate.
I didn't do shit, wasn't guilty of what I was charged with, beat the crime, but the school still has a standard of behavior that was violated. If you think the school can't come after you for shit go talk to the Duke lacrosse guys.
PSN: TheScrublet
University hearings are not court hearings. The standards of evidence are minimal, you don't have to be proven guilty beyond a reasonable doubt, and they can essentially do what they want with you. Just accept the punishment and learn not to take your anger out on a parking services schlub who was just doing his job.
Were you off compus? If not then this clause does not apply to you.
Having been on the Judicial Board for my college, if this is your first offense you will probably get away with a simple warning "Don't be a dick to staff of the school". You should be allowed to bring someone to vouch for you, either a faculty mentor, or some other person of respected position.
Ffffffff. Nobody is suing him and the first amendment bars many tort claims. why do people not get these things ffffffff. Their code is probably unconstitutiona. Talk to FIRE, they may be interested in helping you get rid of the code.
I'm not saying that you need to sue your school or anything, but this is exactly the kind of thing they go for, and the odds of a UC wanting to get into it with you over you flipping off a parking officer are pretty low. They would probably just have to write a letter, and it would disappear, because it would be more trouble than it's worth.
I can mouth off in class and while my constitutional rights are protected, they have every right to kick my ass out of class. When you're on school property, it's best not to blatantly be an ass to the staff. It's a school issue, not a public one.
Yes, I'm sure it's unconstitutional. I'm sure they don't have an ARMY of lawyers that pour over every single one of their rules and regulations to make sure it meets the standards of constitutionality, and I'm sure that the broad deference courts give to the college systems to adjudicate these cases will just happen to come down on the OP's side, despite it rarely if ever doing so for anyone else.
No, I know, but since the end of in loco parentis courts have typically deferred to institutions, including public universities, in terms of how their policies are enforced. More to the point, the part of the school's bylaws the OP gave us may not even apply in this instance, since we don't know who is charging him, or what exactly he is being charged with.
I'm not saying contacting the ACLU is remiss here, just that it's likely not as cut and dry as most people seem to think free speech issues are.
Seriously, this. My college you basically had to 'accept' punishment. If you didn't, the school could either A) press charges or
If they can't prove it, you're fine.
Also, it goes without saying, don't be a dope when cops are looking. They can make your life difficult in approximately 9000 ways (as evidence by this thread).
That hasn't been the case at ANY of the three public institutions I have worked at. They don't have to prove shit. It's not a court and isn't held to standards anywhere NEAR that level.
From the information given: YES. They can easily prove it.
I imagine the car he got out of and walked away from has the same tag number as the car he registered for the parking permit. It doesn't take a supercop to write down a tag number, look up the OP's ID picture on the student directory and say "That's the asshole that flipped me off".
Not sure what else to say. Generally I'm all for sticking up for yourself when you're not at fault. I guess don't flip off cops in the future, and good luck with the hearing.
It's not he/said she/said though, it's a University employee, which automatically gives them the benefit of the doubt. That may not be fair, but it has been like that everywhere I have worked.
Also, there's no reason to give him advice for beating the charge with the burden of proof when he admits to doing it.
Am I the only one here thinking he should man up, accept the fact that what he did was wrong and misdirected toward the wrong person, in the wrong way, and just apologize and/or take whatever slap on the wrist they give him?
Don't get me wrong OP, if you go to this hearing and they try to throw a two hundred dollar fine on you or something, the lawyer up, by all means. But if all you have to do is apologize or do a little community service, take it as a lesson learned not to flip the bird to strangers when you're pissed off.
But I'm not sure how "employee vs customer" stands up at these things. Usually the judiciary boards handle student vs student disputes in my experience.
@amateurhour: that's the best thing to be doing I think
In my experience, when it's someone the University depends on to enforce policy i.e. police aids, Resident assistants, parking services employees, etc. they are always given the benefit of the doubt. Which makes sense, since they are supposed to serve as the eyes and ears of the University.
And yes AH, I do think he should just man up and apologize. Parking services employee's get enough shit for just doing their jobs.
I can't imagine being a parking services or parking cop. Poor, poor, guys...
Touche Thanatos, I misinterpreted the phrasing of that.
I would say that if there are enough other cases that have been shown in real courts to protect flipping someone off, that you could take that to your hearing as your defense, and quote this section of the rule book.
Whatever you do, just don't be an ass about it. Judicial Boards respond well to people being polite and organized.
First off, to those who said I should "just man up and apologize" that was always my intention, I was never soliciting anyone in here for advice on how to lie my way out of the situation. I simply wanted to know if what I had done was protected speech or not. I was always willing to admit that this was not the best way of handling the situation, but nonetheless wanted assurances that it was punishable.
Well I met with the person this morning and basically recounted the situation, I was very nice about it and they in turn were nice. I'm on disciplinary probation for one quarter, or 10 weeks, down from the full year they quoted me in the letter.
All in all a pretty light sentence and I learned my lesson.
So hard.
You don't get parking tickets unless you park somewhere against the rules. That's how it works. It wasn't the parking attendant's or the school's fault you can't control yourself. Calling the ACLU and suing your school, or even just trying to weasel your way out of this is frankly bullshit.
But you know, thanks for simplifying my life into one sentence so you can judge it. That's really easy.
Please tell me what the possible constructive use of your post is after I've already personally atoned for this, other than to rub sand in an open wound?