Yesterday, a federal magistrate judge in Fresno, California, recommended that an injunction be issued against a community college policy banning “verbal forms of aggression …. harassment, ridicule or intimidation.” He concluded that the ban was unconstitutionally vague, in the Report and Recommendations he issued:
BP 3050 serves as the [Kern Community College] District’s policy on “Institutional Code of Ethics.” BP 3050 provides that “all associates in the District, faculty, students, management, classified staff, and trustees, as well as volunteers and vendors, each bear personal responsibility for their own ethical behavior and for the ethical statute of our organization.” BP 3050 requires “that [the community] conduct [itself] with civility in all circumstances of [their] professional lives” and does “not participate in or accept, condone, or tolerate physical or verbal forms of aggression, threat, harassment, ridicule, or intimidation.” BP 3050 states it values a spirit of free inquiry and free speech and “encourages the expression of a range of points of view, but [expects] all expressions of content to be conducted in a manner respectful of persons.” …
The Undersigned finds the term “verbal forms of aggression … harassment, ridicule or intimidation” has a likelihood of being impermissibly vague. The term lacks a commonly understood meaning and creates a policy that is broader than the civility policies District Defendants allege are similar.
What may be considered “verbal forms of aggression” can “[vary] from speaker to speaker, and listener to listener.” This ambiguity invites the District to engage in viewpoint discrimination over what speech may constitute “verbal forms of aggression.” See [record citation] (Plaintiff [history professor] was investigated for reposting [a colleague’s] post on RIFL’s Facebook page and adding “Here’s what one critical race theorist at BC sounds like. Do you agree with this radical SJW from BC’s English Department? Thoughts?”); compare [record citation] (Plaintiff alleges “[n]one of the members of the Board of Trustees disavowed Corkins’ call” that “RIFL faculty are ‘in that five percent we have to continue to cull. Got them in my livestock operation and that’s why we put a rope on some of them and take them to the slaughterhouse'”). [RIFL is a faculty organization, the Renegade Institute for Liberty.]
The recommendation was issued by Magistrate Judge Christopher Baker in Johnson v. Watkin, a lawsuit brought by Professor Daymon Johnson.
The recommendation will now be considered by a regular United States District Court Judge, who has more power than a magistrate judge. District Judges usually adopt the recommendations of magistrate judges, but not always. They don’t have to.
Magistrate judges only have the power to issue recommendations as to important rulings. They can’t issue the most important court rulings in a case (like about who wins a lawsuit or who gets an injunction) unless all parties to the case consent to that. They can only issue less important rulings (like whether you have to respond to a subpoena or show up for a deposition). But the most important rulings, like who wins a lawsuit, have to be issued by a regular judge (one appointed by the President and confirmed by the Senate), not a magistrate judge (who is appointed by other judges). The magistrate judge can only issue a recommendation to a regular judge about who should win a lawsuit or get an injunction, he cannot himself declare who won or impose an injunction himself.
