From Flores v. Bennett, decided today by Ninth Circuit Judges Kim McLane Wardlaw and Milan Smith, and District Judge Douglas L. Rayes (D. Ariz.), apropos a case I blogged about last year:
Defendants … appeal a district court order enjoining [Clovis Community College's] "Flyer Policy" that prohibited "inappropriate or offense [sic] language or themes" in postings on interior bulletin boards. [The policy was challenged by three] then-Clovis students …, as well as the Young Americans for Freedom ("YAF") student chapter at Clovis ….
The district court did not abuse its discretion when it concluded that Plaintiffs were likely to succeed on the merits of their claim that the "inappropriate or offense language or themes" provision was facially overbroad. To prevail on an overbreadth challenge, a party must demonstrate that the policy "'prohibits a substantial amount of protected speech' relative to its 'plainly legitimate sweep,'" such that "society's interest in free expression outweighs its interest in the statute's lawful application." United States v. Hansen (2023).
As the district court concluded, "a prohibition on 'inappropriate or offense language or themes' does not have a core of readily identifiable, constitutionally proscribable speech." The Supreme Court has consistently held that "[s]peech may not be banned on the ground that it expresses ideas that offend," Matal v. Tam, 582 U.S. 218, 223 (2017), including in the university context. See, e.g., Papish v. Bd. of Curators of Univ. of Missouri (1973) (holding that a graduate student could not be expelled for publishing an obscene cartoon).
