Wasn’t clear, yes. There’s a legal principle, “Ignorance of the law is no excuse.” The school is being merciful here.
What? Do you think there was ever a doubt that the student had a motive? Nobody disputes that; nobody thinks he accidentally turned on his phone, accidentally released the footage.
The question is whether his motive is enough to render his actions justified, AND whether his motive is enough to render his actions legal.
As I read it, the school is dropping the suspension because they don’t want the headache. Which is totally their right. But they didn’t have to do it.
Out of curiosity, why are you ignoring the salient differences between cop interactions on a public road, and professorial interactions in a classroom? Do you think they’re not salient?
I think the people confidently asserting that the law prohibits the student’s recordings should be addressing the First Amendment issue. There are differences between police and teachers, but because teachers in a public institution are government employees, there are also similarities. Certainly if I were the student, I’d be arguing that the same principles that inform Glik v. Cunniffe apply to me.
Now, I can also see the distinguishing aspects of the two. But I’m disappointed that no one arguing in favor of the school seems to acknowledge that this is a weakness that they should address; they have instead taken advantage of the fact that their opposition has not developed the First Amendment argument.
Bricker, does taking a course imply that the student agrees to the terms outlined in the syllabus?
If it does, or if the professor is the sort that has students sign the syllabus (I don’t think this was the case), would a student waive their right to record even in a one-party consent state?
That rule seems to only apply to abridging constitutional free speech. It says “when engaged in outside a campus of those institutions.” So in other words, the sniff test is that the school can’t make a rule prohibiting speech that would otherwise be legal in the non-campus world.
The professor expressly denied consent for recording, and that seems to be legal in California. Wouldn’t it only apply here if California’s two-party consent law is unconstitutional?
Politics can have a very strong influence on how human sexuality is expressed. I don’t think the course could be taught without discussing how political viewpoints influencing law and social policy affect human sexuality. The professor would be negligent in her job not to mention this.
There are a number of cases that hold that the act of recording conduct of public officials, when intended to be used to disseminate information, is itself an exercise of speechy First Amendment rights
So under that view, there is a general rule about two-party consent which is probably valid, but not in this particular specific set of facts. If it’s true that the First Amendment is implicated by recording the professor so you can publish the recording in order to disseminate information of public concern, then it’s probably true that the professor’s denial of consent has no force.
I didn’t – I said no one’s addressed it, that no one’s acknowledged it as a weakness they should address. I agree you’ve acknowledged it exists as a question. But having acknowledged it as a question, you’ve then appeared to reach conclusions that don’t include analysis of the issue itself. In other words, I’m saying mere acknowledgment that the issue exists is insufficient. If it exists, but your conclusions don’t account for it, then your conclusions are suspect.
Not sure how my conclusions are affected by it. My conclusions are that he was trying to suppress her free speech, that he technically broke a rule in doing so, that he got dinged for that technical rule-breaking, and that I’m okay with that.
You might say that even though he was trying to suppress her free speech, and even though he technically broke a rule in doing so, there’s a chance that rule was not a constitutional rule, and therefore I shouldn’t be okay with his dinging. Is that your argument?
Almost. I’d say a better formulation would be, “Before you conclude you’re ok with his being dinged, you should be satisfied that the rule under which he’s dinged is a valid (i.e., constitutional) one.”
A professor teaching at a public school is generally considered a public official for these types of inquiries.
The question of whether the classroom space is public or not is a closer one. I can make an argument for either side.
I don’t know what case law already exists to help the determination along.
But remember the section of law I posted above in post 145: it says that a student can’t be punished for doing in a classroom an act that if done in public would be protected First Amendment conduct. So I don’t think I agree that the classroom as public space question is pivotal.
It doesn’t say in public, it says off-campus. If the student recorded the professor off-campus in a non-public space without her consent, he would be breaking the law.
If I sat on a jury, I’d hold myself to that standard. On a messageboard, I hold myself to a lower standard: if someone acts awfully and gets hoisted by their own petard, I’m okay with that, even if the precise mechanism for petard-hoisting isn’t a mechanism I favor.
I posted this in #35, but two party consent in CA doesn’t apply in the classroom. Evens v. Superior Court
Ed Code says that a student who engages in surreptitious recording is only subject to disciplinary action not a criminal penalty and taken in conjunction with the ed code you cited I would say no disciplinary action may be taken.
What? Do you think there was ever a doubt that the student had a motive? Nobody disputes that; nobody thinks he accidentally turned on his phone, accidentally released the footage.