Hunt v. Board of Regents of UNM

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 14, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
PAUL HUNT,
Plaintiff - Appellant,
v. No. 18-2149
(D.C. No. 1:16-CV-00272-JCH-KK)
BOARD OF REGENTS OF THE (D. N.M.)
UNIVERSITY OF NEW MEXICO;
SCOTT CARROLL, M.D., in his
individual and official capacities; JOHN
DOE; JANE DOE, Members of the
Committee for Student Promotion and
Evaluation, in their individual and official
capacities; TERESA A. VIGIL, M.D., in
her individual and official capacities;
PAUL ROTH, M.D., in his individual and
official capacities,
Defendants - Appellees.
--------------------------------------------------
ELECTRONIC FRONTIER
FOUNDATION; THE JOSEPH L.
BRECHNER CENTER FOR FREEDOM
OF INFORMATION; STUDENT PRESS
LAW CENTER; THE NATIONAL
COALITION AGAINST CENSORSHIP;
FOUNDATION FOR INDIVIDUAL
RIGHTS IN EDUCATION; CATO
INSTITUTE; PROFESSOR EUGENE
VOLOKH,
Amici Curiae.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HOLMES, O’BRIEN, and MATHESON, Circuit Judges.
_________________________________
Paul Hunt filed this 42 U.S.C. § 1983 action against the Board of Regents of
the University of New Mexico (UNM) and various administrators at the University of
New Mexico School of Medicine (UNMSOM), claiming violations of his free speech
rights under the First Amendment and his due process rights under the Fourteenth
Amendment. The district court granted summary judgment for the defendants.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.1
BACKGROUND
In 2012, as a medical student at UNMSOM, Mr. Hunt was subject to the
policies of both UNM and UNMSOM, including UNM’s Respectful Campus Policy
and UNMSOM’s Social Media Policy. The Respectful Campus Policy noted, inter
alia, that (1) “UNM strives to foster an environment that reflects courtesy, civility,
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
We previously entered an order provisionally granting motions for leave to
file amicus curiae briefs by (1) the Joseph L. Brechner Center for Freedom of
Information, the Student Press Law Center, the Electronic Frontier Foundation, and
the National Coalition Against Censorship; and (2) the Foundation for Individual
Rights in Education, the Cato Institute, and Professor Eugene Volokh. We now make
permanent the provisional order and grant the amici’s motions.
2
and respectful communication because such an environment promotes learning,
research, and productivity”; and (2) “a respectful campus environment”—that is, one
that “exhibits and promotes” professionalism, integrity, harmony, and
accountability—is “a necessary condition for success in teaching and learning, in
research and scholarship, in patient care and public service, and in all other aspects of
the University’s mission and values.” Aplt. App. at 42. The Social Media Policy
addressed the use of “sites like Facebook” and cautioned students, inter alia, to:
(1) “[e]xercise discretion, thoughtfulness and respect for your colleagues, associates
and the university’s supporters/community”; and (2) “[r]efrain from engaging in
dialogue that could disparage colleagues, competitors, or critics.” Id. at 41.
Shortly after the presidential election in November 2012, Mr. Hunt, then
twenty-four years old, posted the following comment on his personal Facebook page:
All right, I’ve had it. To all of you who support the Democratic
candidates:
The Republican Party sucks. But guess what. Your party and your
candidates parade their depraved belief in legal child murder around
with pride.
Disgusting, immoral, and horrific. Don’t celebrate Obama’s victory
tonight, you sick, disgusting people. You’re abhorrent.
Shame on you for supporting the genocide against the unborn. If you
think gay marriage or the economy or taxes or whatever else is more
important than this, you’re fucking ridiculous.
You’re WORSE than the Germans during WW2. Many of them acted
from honest patriotism. Many of them turned a blind eye to the
genocide against the Jews. But you’re celebrating it. Supporting it.
Proudly proclaiming it. You are a disgrace to the name of human.
3
So, sincerely, fuck you, Moloch worshiping assholes.
Id. at 37-38.
On November 15, 2012, Scott Carroll, MD, Chair of UNMSOM’s Committee
on Student Promotions and Evaluation (CSPE), sent a letter to Mr. Hunt, stating the
Dean of Students was referring him to CSPE due to alleged unprofessional conduct
relating to the Facebook post. Dr. Carroll stated that Mr. Hunt had “every right to
[his] political and moral opinions and beliefs” but that “there is still a
professionalism standard that must be maintained as a member of the UNM medical
school community.” Id. at 93. He then quoted the following excerpt from UNM’s
Respectful Campus Policy:
Individuals at all levels are allowed to discuss issues of concern in an
open and honest manner, without fear of reprisal or retaliation from
individuals above or below them in the university’s hierarchy. At the
same time, the right to address issues of concern does not grant
individuals license to make untrue allegations, unduly inflammatory
statements or unduly personal attacks, or to harass others, to violate
confidentiality requirements, or engage in other conduct that violates
the law or the University policy.
Id. (emphasis in original) (italics and internal quotation marks omitted). After noting
this policy “applied to communication through social media outlets such as
Facebook[,] as stated in the UNMSOM Social Media Policy,” he quoted from the
latter: “UNMSOM does not routinely monitor personal websites or social media
outlets” but “any issues that violate any established UNM Policy will be addressed,”
and “[v]iolation of this or any UNM policy may result in disciplinary action, up to
and including dismissal from UNM.” Id. (italics and internal quotation marks
4
omitted). Finally, the letter stated that CSPE would address “the allegations at its
November 20th meeting” and that Mr. Hunt should “prepare a statement . . . and be
prepared to answer questions from the committee members.” Id.
At the CSPE meeting, Mr. Hunt (1) read a statement “acknowledging [his]
‘guilt’ and asking CSPE for help to overcome [his] ‘deficiencies’”; and (2) responded
to questions from CSPE members. Id. at 88.
Two months later, Dr. Carroll informed Mr. Hunt that CSPE found the
Facebook post violated the policies at issue and was imposing “a professionalism
enhancement prescription” consisting of an ethics component and a professionalism
component, each with different faculty mentors. Id. at 95. For the ethics component,
the mentor would “assign readings and supervise a reflective writing assignment on
patient autonomy and tolerance.” Id. The professionalism component entailed: (1) a
writing assignment on the public expression of political beliefs by physicians; (2) an
apology letter that Mr. Hunt could present to his “classmates, select individuals or no
one”; (3) rewriting the Facebook post in a passionate yet professional manner; and
(4) regular meetings with the faculty mentor over the course of a one-year period. Id.
CSPE would need to approve final written products. Id.
Dr. Carroll also explained that the professionalism violation would be noted in
the Dean’s recommendation letter for Mr. Hunt’s residency applications, but that he
could “choose to petition CSPE to remove the notation at some point in the future.”
Id. Dr. Carroll cautioned Mr. Hunt that (1) “any further professionalism lapses will
result in referral to CSPE and may result in adverse action such as dismissal”; and
5
(2) failure to fulfill the requirements of the professionalism prescription could result
in “adverse action including dismissal.” Id. at 95-96. The letter concluded by noting
Mr. Hunt had the right to “request review by the Senior Associate Dean of
Education” if he believed CSPE’s decision was “fundamentally flawed, unfair or
otherwise inappropriate.” Id. at 96 (italics and internal quotation marks omitted).
Mr. Hunt did not seek such review. Rather, over the following year, he
worked toward satisfying his professionalism prescription, meeting with his mentors
and completing the written assignments. Mr. Hunt alleged that either CSPE or his
mentor did not approve his first drafts but ultimately approved his second attempts.
And in his revised Facebook post, Mr. Hunt “still expresse[d] [his] fervent opposition
to abortion” but in a “calm and rational” tone and with “no expletives.” Id. at 125.
On April 22, 2014, Dr. Carroll informed Mr. Hunt that he had satisfied the
professionalism prescription but cautioned that any future professionalism issues
would “be considered in light of [his] previous lapse in professionalism.” Id. at 100.
Dr. Carroll also reminded Mr. Hunt of the need to request removal of the notation
from his Dean’s letter and “suggest[ed] waiting until toward the end of Phase II” but
before “the summer before the 4th year of medical school, early in Phase III.” Id.
Mr. Hunt anticipated completing Phase II “on or about April 30, 2017.” Id. at 17.
In January 2016, Mr. Hunt filed suit in state court against UNM’s Board of
Regents, Dr. Carroll, members of CSPE, and UNMSOM’s Dean, raising claims under
the First and Fourteenth Amendments and seeking monetary damages and injunctive
and declaratory relief. The defendants removed the case to federal court under
6
28 U.S.C. § 1331 and filed a motion to dismiss or for summary judgment. The
district court granted summary judgment for the defendants. In particular, the court:
(1) dismissed the claims for damages against the individual defendants in their
official capacities and the Board because they were not subject to suit under § 1983;
(2) found the individual defendants were entitled to qualified immunity on
Mr. Hunt’s free speech claims because there was no clearly established law
prohibiting the defendants’ conduct; and (3) found the individual defendants were
entitled to qualified immunity on Mr. Hunt’s due process claim because the
defendants’ conduct was not unconstitutional. Mr. Hunt timely appealed.
DISCUSSION
The sole issues properly before this court are whether, in addressing the
defendants’ qualified immunity defense to Mr. Hunt’s free speech claims, the district
court erred by (1) declining to address the constitutionality of the defendants’
actions; and (2) determining the law was not clearly established.2
2
We do not consider Mr. Hunt’s due process claim because he did not address
it on appeal. See Coleman v. B-G Maint. Mgmt. of Colo., Inc., 108 F.3d 1199, 1205
(10th Cir. 1997). We also decline to address the argument by Mr. Hunt and the amici
that the governing policies were unconstitutionally vague and overbroad. As
Mr. Hunt conceded in his opening brief, “he did not fully brief these arguments” in
district court. Aplt. Opening Br. at 6. He attempted to retract this concession in his
reply brief by quoting from his complaint and response to the summary judgment
motion, but (1) the content or context of the quoted passages plainly demonstrates
they concerned either his as-applied free speech claims or his due process claim, not
a facial challenge to the policies themselves; and (2) he did not raise a First
Amendment facial challenge in his complaint. While we may consider an issue
raised for the first time on appeal, “the decision regarding what issues are appropriate
to entertain . . . in instances of lack of preservation is discretionary.” Abernathy v.
Wandes, 713 F.3d 538, 552 (10th Cir. 2013). Because the resolution of this issue is
7
A. Standard of Review
This court “review[s] summary judgment decisions de novo,” “view[ing] the
evidence and draw[ing] reasonable inferences therefrom in the light most favorable to
the nonmoving party.” Talley v. Time, Inc., 923 F.3d 878, 893 (10th Cir. 2019)
(internal quotation marks omitted). Summary judgment is warranted when “the
movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). To overcome a
qualified immunity defense at the summary judgment phase, a plaintiff must show:
“(1) that the defendant violated his constitutional . . . right[], and (2) that the
constitutional right was clearly established at the time of the alleged unlawful
activity.” Estate of Reat v. Rodriguez, 824 F.3d 960, 964 (10th Cir. 2016) (internal
quotation marks omitted). Failure on either prong “is fatal to the plaintiff’s cause.”
Kerns v. Bader, 663 F.3d 1173, 1180 (10th Cir. 2011). “If, and only if, the plaintiff
meets this two-part test does a defendant then bear the traditional burden of the
movant for summary judgment—showing that there are no genuine issues of material
fact and that he or she is entitled to judgment as a matter of law.” Gutteridge v.
Oklahoma, 878 F.3d 1233, 1238 (10th Cir. 2018) (internal quotation marks omitted).
not “beyond doubt” and does not involve “unusual circumstances,” Lyons v. Jefferson
Bank & Tr., 994 F.2d 716, 721 (10th Cir. 1993), we decline to exercise our discretion
to consider it. Finally, we decline to address any issues raised by the amici but not
by Mr. Hunt, such as a compelled speech claim. See Corder v. Lewis Palmer Sch.
Dist. No. 38, 566 F.3d 1219, 1230 n.6 (10th Cir. 2009) (declining to address a
compelled speech argument raised in an amicus brief).
8
B. First Prong
Mr. Hunt and the amici contend that (1) the district court should have
addressed the first prong of qualified immunity; and (2) this court should address the
first prong. But the Supreme Court has afforded both district courts and courts of
appeals the discretion to “decid[e] which of the two prongs of the qualified immunity
analysis should be addressed first.” Pearson v. Callahan, 555 U.S. 223, 236 (2009).
Indeed, the Supreme Court has admonished courts to “think hard, and then think hard
again, before” addressing both prongs of qualified immunity. Camreta v. Greene,
563 U.S. 692, 707 (2011). And we have found addressing both prongs “should be the
exception” because of the doctrine of constitutional avoidance. Kerns, 663 F.3d at
1180-81 (internal quotation marks omitted).
Off-campus, online speech by university students, particularly those in
professional schools, involves an emerging area of constitutional law. See, e.g.,
Keefe v. Adams, 840 F.3d 523, 529-33 (8th Cir. 2016) (finding no First Amendment
violation when a student was suspended from a nursing program at a public college
for “on-line, off-campus Facebook postings” that the school deemed unprofessional
and in violation of governing codes of conduct), cert. denied, 137 S. Ct. 1448 (2017).
Accordingly, we find no fault with the district court’s exercise of its discretion. And
we, too, decline Mr. Hunt’s request to address the first prong.
9
C. Second Prong
In confining its review to the second prong of the qualified immunity analysis,
the district court determined that the law was not clearly established and that
defendants, therefore, were entitled to qualified immunity. We agree.
“A right is clearly established when,” based upon “the law at the time of the
incident,” “it is sufficiently clear that every reasonable official would have
understood that what he is doing violates that right.” Estate of Reat, 824 F.3d at 964
(internal quotation marks omitted). Because “qualified immunity protects all
officials except those who are plainly incompetent or those who knowingly violate
the law,” Apodaca v. Raemisch, 864 F.3d 1071, 1076 (10th Cir. 2017) (internal
quotation marks omitted), “existing precedent must have placed the . . . constitutional
question beyond debate.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per
curiam) (internal quotation marks omitted). “The dispositive question is whether the
violative nature of particular conduct is clearly established. This inquiry must be
undertaken in light of the specific context of the case, not as a broad general
proposition.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (internal
quotation marks and citation omitted).
“To make this determination, we consider either if courts have previously
ruled that materially similar conduct was unconstitutional, or if a general
constitutional rule already identified in the decisional law applies with obvious
clarity to the specific conduct at issue.” Estate of Reat, 824 F.3d at 964-65 (internal
quotation marks, emphases, and alteration omitted). “[A] plaintiff may satisfy this
10
standard by identifying an on-point Supreme Court or published Tenth Circuit
decision; alternatively, the clearly established weight of authority from other courts
must have found the law to be as the plaintiff maintains.” Cox v. Glanz, 800 F.3d
1231, 1247 (10th Cir. 2015) (internal quotation marks omitted). “[C]learly
established law should not be defined at a high level of generality” but, instead,
“must be particularized to the facts of the case.” White v. Pauly, 137 S. Ct. 548, 552
(2017) (per curiam) (internal quotation marks omitted). “Otherwise, plaintiffs would
be able to convert the rule of qualified immunity into a rule of virtually unqualified
liability simply by alleging violation of extremely abstract rights.” Id. (alterations
and internal quotation marks omitted).
Here, we are faced with a medical student’s free speech challenge to sanctions
from his school in response to his off-campus, online speech. Based upon the case
law as of 2012-2013, which the parties agree is the relevant time period, we cannot
say that “every reasonable official” in the position of the defendants here would have
known their actions violated the First Amendment. Estate of Reat, 824 F.3d at 964
(internal quotation marks omitted).
The Supreme Court first examined whether a high school could prevent
students from wearing arm bands on campus to protest the Vietnam War. Tinker v.
Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969). The Court noted students
do not “shed their constitutional rights to freedom of speech or expression at the
schoolhouse gate,” but recognized the rights must be “applied in light of the special
characteristics of the school environment.” Id. at 506. In a divided opinion, the
11
Court held that schools can regulate speech that “would materially and substantially
disrupt the work and discipline of the school,” id. at 513, or that intrudes upon “the
rights of other students,” id. at 508. The Court concluded that the school could not
prohibit the students’ “silent, passive expression of opinion, unaccompanied by any
disorder or disturbance,” id. at 508, 514. Although the holding encompassed speech
occurring “in class or out of it,” id. at 513, it is clear Tinker addressed on-campus
speech only, see id. at 512-13 (discussing speech “in the classroom” and also “in the
cafeteria, or on the playing field, or on the campus during the authorized hours”).
Three years later, the Court extended Tinker to the university setting, although
that case concerned official recognition of a student group and not student discipline.
See Healy v. James, 408 U.S. 169, 180, 189 (1972). The Court noted: (1) “state
colleges and universities are not enclaves immune from the sweep of the First
Amendment”; and (2) “First Amendment rights must always be applied ‘in light of
the special characteristics of the . . . environment’ in the particular case.” Id. at 180
(quoting Tinker, 393 U.S. at 506). Healy acknowledged a college may “expect that
its students adhere to generally accepted standards of conduct,” id. at 192 (internal
quotation marks omitted), but it rejected the notion that “because of the
acknowledged need for order, First Amendment protections should apply with less
force on college campuses than in the community at large,” id. at 180.
After Healy, the Court addressed a free speech claim by a graduate-level
journalism student expelled under a policy prohibiting “indecent . . . speech” for
distributing on campus an underground newspaper containing: (1) “a political
12
cartoon . . . depicting policemen raping the Statute of Liberty and the Goddess of
Justice”; and (2) “an article entitled ‘M----- f----- Acquitted,’” referring to an assault
trial. Papish v. Bd. of Curators of the Univ. of Mo., 410 U.S. 667, 667-68 (1973)
(per curiam). After reiterating public colleges are not immune from the First
Amendment, the Court, echoing Tinker, explained “in the absence of any disruption
of campus order or interference with the rights of others, the sole issue was whether a
state university could proscribe this form of expression.” Id. at 670 & n.6. A divided
Court held “the mere dissemination of ideas—no matter how offensive to good
taste—on a state university campus may not be shut off in the name alone of
‘conventions of decency.’” Id. at 670.
After Papish, the Court seemingly tacked in a different direction. First, in
Bethel School District No. 403 v. Fraser, 478 U.S. 675, 677-78 (1986), the Court
addressed a free speech challenge by a student who was suspended after giving a
speech in which he described another student with “an elaborate, graphic, and
explicit sexual metaphor.” Chief Justice Burger, who dissented in Papish, authored
the majority opinion, which observed that schools have a responsibility to teach “the
shared values of a civilized social order,” id. at 683, including that “the most heated
political discourse in a democratic society requires consideration for the personal
sensibilities of the other participants and audiences,” id. at 681. Finding “especially
relevant” the contention in the Tinker dissent that schools need not “surrender
control” to their students, id. at 686 (internal quotation marks omitted), the Court
13
held that schools may restrict on-campus speech that is “lewd,” “vulgar,” or
“indecent,” even absent any disruption, id. at 685.
Two years later, the Court rejected a claim by high school students that their
school violated the First Amendment by censoring articles about pregnancy and
divorce from the school newspaper. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S.
260, 262-73 (1988). After finding “equally relevant” the portion of the Tinker
dissent quoted in Fraser, id. at 271 n.4, the Court expressly refused to apply Tinker,
see id. at 272-73. Instead, the Court held that schools may regulate “student speech
in school-sponsored expressive activities,” which “members of the public might
reasonably perceive to bear the imprimatur of the school,” “so long as their actions
are reasonably related to legitimate pedagogical concerns.” Id. at 271, 273. The
Court declined to decide whether the rule applied at universities. Id. at 273 n.7.
Lastly, in Morse, the Court rejected a free speech claim by a student who was
suspended for waving a banner that read “BONG HiTS 4 JESUS” at an off-campus,
school-approved activity. Morse v. Frederick, 551 U.S. 393, 396-98 (2007). In a 5-4
decision, the Court held: (1) “Tinker is not the only basis for restricting student
speech,” id. at 406; (2) the speech in Fraser “would have been protected” had it been
“outside the school context,” id. at 405; and (3) a school may “restrict student speech
at a school event, when that speech is reasonably viewed as promoting illegal drug
use,” id. at 402.
14
Like the Supreme Court, our student speech cases mainly concern on-campus
speech by K-12 students.3 We have extended Hazelwood to “speech that occurs in a
[university] classroom as part of a class curriculum.” Axson-Flynn v. Johnson,
356 F.3d 1277, 1289 (10th Cir. 2004); see, e.g., Pompeo v. Bd. of Regents of the
Univ. of N.M., 852 F.3d 973, 988-90 (10th Cir. 2017) (upholding qualified immunity
where a university student was “chastised” and told to rewrite a paper after “using
inflammatory language” in an assignment). But we have not yet decided whether
Hazelwood applies to “university students’ extracurricular speech,” Axson-Flynn,
356 F.3d at 1286 n.6, or non-curricular speech.
Mr. Hunt insists that because Fraser, Hazelwood, and Morse do not apply,
“Tinker is the applicable standard,” Aplt. Opening Br. at 18, and establishes that his
3
See Taylor v. Roswell Indep. Sch. Dist., 713 F.3d 25, 35, 38 (10th Cir. 2013)
(finding no free-speech violation under Tinker where the school prohibited the
distribution of rubber fetus dolls based on a “strong potential for substantial
disruption”); Corder v. Lewis Palmer Sch. Dist. No. 38, 566 F.3d 1219, 1222, 1228
(10th Cir. 2009) (finding no violation under Hazelwood where the school required a
student, in order to receive her diploma, to apologize for discussing her religious
views during her valedictory speech, explaining that “discipline, courtesy, and
respect for authority” constitute legitimate pedagogical goals (internal quotation
marks omitted)); Fleming v. Jefferson Cty. Sch. Dist. R-1, 298 F.3d 918, 922, 934
(10th Cir. 2002) (finding no violation under Hazelwood where the school allowed
students to decorate memorial tiles but prohibited “religious symbols, the date of the
shooting, or anything obscene or offensive”); West v. Derby Unified Sch. Dist. No.
260, 206 F.3d 1358, 1366 (10th Cir. 2000) (finding no violation under Tinker where
the school prohibited the display of the Confederate flag because it “might cause
disruption and interfere with the rights of other students to be secure and let alone”);
Seamons v. Snow, 84 F.3d 1226, 1237-38 (10th Cir. 1996) (holding the student
properly stated a free speech claim where the school denied him “the ability to report
physical assaults in the locker room,” finding that the school’s “fear of a disturbance
stemming from the disapproval associated with [the student’s] unpopular viewpoint
regarding hazing in the school’s locker rooms” was insufficient under Tinker).
15
“right to free speech was violated,” id. at 21. However, in Morse, Justice Thomas
observed the Court has not “offer[ed] an explanation of when [Tinker] operates and
when it does not,” Morse, 551 U.S. at 418 (Thomas, J., concurring), and the majority
itself acknowledged “[t]here is some uncertainty at the outer boundaries as to when
courts should apply school speech precedents,” id. at 401.
For example, it is inescapable that Tinker and its progeny involved speech
occurring on campus or as part of a school-sanctioned activity. See Doninger v.
Niehoff, 527 F.3d 41, 48 (2d Cir. 2008) (“The Supreme Court has yet to speak on the
scope of a school’s authority to regulate expression that . . . does not occur on school
grounds or at a school-sponsored event.”). Additionally, none of the Court’s cases
involved online speech. See Aplt. Opening Br. at 21 (conceding the Court has not
“specifically addressed the scope of the [F]irst [A]mendment rights of a university
student’s off-campus social media speech”). The Court held in 1997 that the First
Amendment applied to the Internet, see Reno v. ACLU, 521 U.S. 844, 849 (1997), but
it only recently addressed its application to social media, see Packingham v. North
Carolina, 137 S. Ct. 1730, 1735 (2017). Unsurprisingly, “[a] growing body of
scholarship [has] call[ed] for the Supreme Court to take a case applying its school
speech doctrine to a student’s online speech.” Elizabeth Nicoll, University Student
Speech and the Internet: A Clusterf***, 47 NEW ENG. L. REV. 397, 397 (2012). But
as the Court has not taken such a case, “First Amendment doctrine” “[a]t the
intersection of university speech and social media” remains “unsettled.” Yeasin v.
Durham, 719 F. App’x 844, 852 (10th Cir. 2018) (concluding the law was not clearly
16
established for a free speech claim by a student expelled for off-campus, online
speech that violated the university’s code of conduct and sexual-harassment policy).4
Moreover, though at first blush they might appear favorable to Mr. Hunt, even
viewed in isolation, the Supreme Court’s university cases of Healy and Papish fail to
supply clearly established law. Healy reiterated Tinker’s warning that “First
Amendment rights must always be applied ‘in light of the special characteristics of
the . . . environment’ in the particular case.” Healy, 408 U.S. at 180 (quoting Tinker,
393 U.S. at 503). Healy also acknowledged a college may “expect that its students
adhere to generally accepted standards of conduct.” Id. at 192 (internal quotation
marks omitted). Requiring a graduate student to meet standards of professionalism
that would be expected of him upon his entry into the profession is quite different
from restricting speech solely because of a generalized “need for order,” Healy,
408 U.S. at 180, or “in the name alone of ‘conventions of decency,’” Papish,
410 U.S. at 670. Healy and Papish appear to leave space for administrators to
operate as the circumstances demand when confronted with speech by students in
professional schools that appears to be at odds with customary professional
standards. And neither decision would have sent sufficiently clear signals to
reasonable medical school administrators that sanctioning a student’s off-campus,
online speech for the purpose of instilling professional norms is unconstitutional.
4
We cite Yeasin, an unpublished case, for its persuasive value. Fed. R. App.
P. 32.1; 10th Cir. R. 32.1.
17
Nor has Mr. Hunt shown that the clearly established weight of authority from
other circuits supports his position. Mr. Hunt relies on a 2015 case which noted that
five out “‘of the six circuits to have addressed whether Tinker applies to off-campus
speech . . . have held it does.’” Aplt. Opening Br. at 24 (quoting Bell v. Itawamba
Cty. Sch. Bd., 799 F.3d 379, 393 (5th Cir. 2015) (en banc)). However, even though
Bell identified pre-2012 circuit precedent (including from the Fifth), it is notable that
its analysis revealed a circuit split, 799 F.3d at 393, which belies a suggestion of
clearly established law. “If judges disagree on a constitutional question, it is unfair
to subject [public officials] to money damages for picking the losing side of the
controversy.” Poolaw v. Marcantel, 565 F.3d 721, 741 (10th Cir. 2009) (internal
quotation marks and ellipsis omitted).
Several decisions from the Third Circuit highlight the lack of clarity at the
time of the defendants’ actions at issue. In 2010, that court found that “[p]ublic
universities have significantly less leeway in regulating student speech than public
elementary or high schools,” but admitted that: (1) “it [was] difficult to explain how
this principle should be applied in practice”; (2) “it [was] unlikely that any broad
categorical rules will emerge from its application”; and (3) “[a]t a minimum, the
teachings of Tinker, Fraser, Hazelwood, Morse, and other decisions involving speech
in public elementary and high schools, cannot be taken as gospel in cases involving
public universities.” McCauley v. Univ. of V.I., 618 F.3d 232, 247 (3d Cir. 2010).
That court issued two decisions a year later that failed to bring definiteness to
this area of the law. See J.S. ex rel. Snyder v. Blue Mtn. Sch. Dist., 650 F.3d 915,
18
920-31 (3d Cir. 2011) (en banc) (concluding a middle school could not punish a
student for creating on her home computer a MySpace profile that mocked her
principal, noting the student took steps to make the profile private and the school
could not have reasonably forecast a disruption); Layshock ex rel. Layshock v.
Hermitage Sch. Dist., 650 F.3d 205, 207-19 (3d Cir. 2011) (en banc) (concluding a
high school could not punish a student for a parody MySpace profile of his principal
that he created off campus but later accessed on campus). The opinions found in
favor of the students but revealed a deep division over whether Tinker applies
off-campus, with six judges saying it should, Snyder, 650 F.3d at 943 (Fisher, J.,
dissenting), five disagreeing, id. at 940 (Smith, J., concurring), and others insisting
the “off-campus versus on-campus distinction is artificial and untenable in the world
we live in today,” Layshock, 650 F.3d at 220 (Jordan, J., concurring) (internal
quotation marks omitted). Two judges feared the cases could “send an ‘anything
goes’ signal to students, faculties, and administrators of public schools.” Layshock,
650 F.3d at 222 (Jordan, J., concurring).
Mr. Hunt’s Facebook post also occurred months after a state high court found
a university had not violated a mortuary science student’s free speech rights when it
imposed sanctions, including a writing assignment, in response to Facebook posts the
school deemed, inter alia, unprofessional. Tatro v. Univ. of Minn., 816 N.W.2d 509,
511-24 (Minn. 2012). Upholding the discipline, the court held “a university may
regulate student speech on Facebook that violates established professional conduct
19
standards,” provided “any restrictions . . . [are] narrowly tailored and directly related
to established professional conduct standards.” Id. at 521.
Against this backdrop, we conclude that the Supreme Court’s K-12 cases of
Tinker, Fraser, Hazelwood, and Morse and its university cases of Papish and Healy
fail to supply the requisite on-point precedent. Moreover, decisions from our court
and other circuits have not bridged the unmistakable gaps in the case law, including
whether: (1) Tinker applies off campus; (2) the on-campus/off-campus distinction
applies to online speech; and (3) Tinker provides an appropriate framework for
speech by students in graduate-level professional programs, such as medical schools,
cf. Salehpoor v. Shahinpoor, 358 F.3d 782, 787 & n.5 (10th Cir. 2004) (applying the
public-employee analysis to speech by a graduate-level engineering student).
In the end, Mr. Hunt has “failed to identify a case where [a medical school
administrator] acting under similar circumstances as [the defendants in this case] was
held to have violated the [First] Amendment.” Pauly, 137 S. Ct. at 552. Mr. Hunt
and the amici have provided a patchwork of cases connected by broad legal
principles, but the law in late 2012 and 2013 would not have given the defendants
notice that their response to the Facebook post was unconstitutional. See Anderson v.
Creighton, 483 U.S. 635, 640 (1987) (“The contours of the right must be sufficiently
clear that a reasonable official would understand that what he is doing violates that
right.”). Accordingly, the defendants were entitled to qualified immunity.
20
CONCLUSION
For the foregoing reasons, the district court’s order is affirmed.
Entered for the Court
Jerome A. Holmes
Circuit Judge
21