Neil O'Brien v. John Welty
2016 U.S. App. LEXIS 6343
| 9th Cir. | 2016Background
- Neil O’Brien, a politically active Fresno State student, repeatedly criticized university officials and maintained a conservative advocacy website.
- On May 11, 2011, O’Brien videotaped and persistently questioned two CLS professors in their open office doors about a poem; both professors called campus police and later filed complaints.
- Fresno State charged O’Brien under Cal. Code Regs. tit. 5, § 41301(b)(7) (discipline for conduct that "threatens or endangers the health or safety ... including ... intimidation [or] harassment"), held a judicial hearing, and imposed a 100-foot stay-away order and disciplinary probation that limited his campus political activity.
- O’Brien sued under 42 U.S.C. § 1983 alleging, inter alia, that the regulation is overbroad/vague, that the university punished protected speech, and that the discipline was retaliatory; the district court dismissed under Rule 12(b)(6).
- The Ninth Circuit upheld the regulation against facial and as-applied overbreadth/vagueness challenges and held the university permissibly could discipline objectively intimidating or harassing conduct in nonpublic forum areas.
- The Ninth Circuit reversed in part: the complaint plausibly alleged a First Amendment retaliation claim against five defendants (Oliaro, Coon, Gonzalez, Torres, Lopes) and denied qualified immunity at the pleading stage; two defendants (Welty, Jendian) were dismissed as insufficiently connected.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of § 41301(b)(7) (overbreadth/vagueness) | § 41301(b)(7)'s terms ("harassment," "intimidation") are subjective, overbroad, and encourage arbitrary enforcement. | Terms are common, the regulation is narrowed by requiring conduct that "threatens or endangers" health/safety, and university must protect campus safety. | Regulation is neither overbroad nor unconstitutionally vague; valid. |
| Application of § 41301(b)(7) to May 11 videotaping | O’Brien: his conduct was protected speech; disciplining him chilled speech. | Univ.: social sciences hallway/offices are nonpublic forum; regulation is viewpoint neutral and reasonably applied to intimidating conduct. | Application was reasonable; conduct could objectively be viewed as intimidating/harassing in a nonpublic forum. |
| First Amendment retaliation claim | O’Brien: disciplinary actions were substantially motivated by prior protected speech and would chill ordinary speakers. | Defendants: discipline was for misconduct, not viewpoint-driven; allegations speculative. | FAC plausibly pleaded retaliation (protected activity, chilling effect, and retaliatory motive) as to five defendants; survives 12(b)(6). |
| Qualified immunity at pleading stage | O’Brien: retaliatory discipline violated clearly established First Amendment rights. | Defendants: no constitutional violation occurred; thus immunity applies. | Denied qualified immunity at this stage — right against retaliation was clearly established and complaint plausibly alleges violation. |
Key Cases Cited
- United States v. Osinger, 753 F.3d 939 (9th Cir. 2014) (upholding criminal statute covering "harassing" and "intimidating" conduct against First Amendment challenge)
- DeJohn v. Temple Univ., 537 F.3d 301 (3d Cir. 2008) (university harassment policy held overbroad where it reached protected expression)
- United States v. Shrader, 675 F.3d 300 (4th Cir. 2012) ("harass" and "intimidate" are not obscure terms)
- Harper v. Poway Unified Sch. Dist., 445 F.3d 1166 (9th Cir. 2006) (student discipline for speech that injured and intimidated others can be upheld)
- Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d 755 (9th Cir. 2006) (elements and burden-shifting framework for First Amendment retaliation claims)
- Mendocino Envt'l Ctr. v. Mendocino Cnty., 192 F.3d 1283 (9th Cir. 1999) (chilling-test for retaliation: objective person-of-ordinary-firmness standard)
- Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983) (public-forum doctrine; reasonableness test for nonpublic fora)
- Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988) (student-speech standard for secondary schools; not extended to universities here)
- Saucier v. Katz, 533 U.S. 194 (2001) (qualified-immunity analytical framework)
- Virginia v. Black, 538 U.S. 343 (2003) (distinguishing true threats; relevance to intent/objective standard)
- Coszalter v. City of Salem, 320 F.3d 968 (9th Cir. 2003) (retaliation chill and causation principles)