Neil O'Brien v. John Welty

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NEIL O’BRIEN, an individual, No. 13-16279

Plaintiff-Appellant,

D.C. No.

v. 1:12-cv-02017-

AWI-SAB

JOHN WELTY, DR.; PAUL M. OLIARO,

DR.; CAROLYN V. COON, DR.;

VICTOR M. TORRES, DR.; MARIA A. OPINION

LOPES, DR.; LUZ GONZALEZ, DR.;

MATTHEW JENDIAN, DR., each in

their personal capacities; DOES, 1

through 25, inclusive,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of California

Anthony W. Ishii, Senior District Judge, Presiding

Argued and Submitted

September 16, 2015—San Francisco, California

Filed April 7, 2016

Before: William A. Fletcher, Marsha S. Berzon,

and Carlos T. Bea, Circuit Judges.

Opinion by Judge W. Fletcher

2 O’BRIEN V. WELTY

SUMMARY*

Civil Rights

The panel affirmed in part and reversed in part the district

court’s dismissal of a complaint for failure to state a claim,

and remanded in an action brought by a California State

University student who alleged that faculty members and

administrators violated his constitutional rights, including

those protected by the First Amendment, when they

sanctioned him for violating the Student Conduct Code’s

prohibition on harassment and intimidation that poses a threat

to others.

The panel held that California Code of Regulations, tit. 5,

§ 41301(b)(7), which authorizes branches of California State

University to discipline students for conduct that “threatens

or endangers the health or safety of any person . . . including

. . . intimidation [or] harassment,” was not unconstitutionally

overbroad or vague. The panel further held that the

regulation supported imposing discipline for plaintiff’s

conduct. However, the panel also held that plaintiff’s

complaint alleged sufficient facts to state a plausible First

Amendment retaliation claim against some of the defendants.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

O’BRIEN V. WELTY 3

COUNSEL

Brian C. Leighton (argued), Law Offices of Brian C.

Leighton, Clovis, California, for Plaintiff-Appellant.

Molly S. Murphy (argued), Deputy Attorney General;

Kamala D. Harris, Attorney General of California; Kristin G.

Hogue, Senior Assistant Attorney General; Joel A. Davis,

Supervising Deputy Attorney General, Los Angeles,

California, for Defendants-Appellees.

Eugene Volokh (argued), UCLA School of Law, Los

Angeles, California, for Amici Curiae Student Press Law

Center and the Foundation for Individual Rights in Education,

Inc.

David J. Hacker and Heather Gebelin Hacker, Alliance

Defending Freedom, Folsom, California; Kevin J. Theriot,

Alliance Defending Freedom, Leawood, Kansas; Kevin T.

Snider, Pacific Justice Institute, Sacramento, California, for

Amici Curiae Trent Downes, Alliance Defending Freedom,

and Pacific Justice Institute.

4 O’BRIEN V. WELTY

OPINION

W. FLETCHER, Circuit Judge:

At all times relevant to this suit, Neil O’Brien was a

student at California State University Fresno (“Fresno State”),

where he was an outspoken political conservative and critic

of the university. In May 2011, O’Brien confronted and

videotaped two professors in their offices, questioning them

about a poem that had been published in a supplement to the

student newspaper. After disciplinary proceedings, the

university found that O’Brien had violated the Student

Conduct Code’s prohibition on harassment and intimidation

that poses a threat to others. The university imposed

sanctions. O’Brien brought suit in district court against

several faculty members and administrators, alleging

violations of his constitutional rights including those

protected by the First Amendment. The district court

dismissed the complaint under Federal Rule of Civil

Procedure 12(b)(6) for failure to state a claim.

We hold that California Code of Regulations, tit. 5,

§ 41301(b)(7), which authorizes branches of California State

University to discipline students for conduct that “threatens

or endangers the health or safety of any person . . . including

. . . intimidation [or] harassment,” is not unconstitutionally

overbroad or vague. We hold, further, that the regulation

supported imposing discipline for O’Brien’s conduct.

However, we also hold that O’Brien’s complaint alleges

sufficient facts to state a plausible First Amendment

retaliation claim against some of the defendants. We

therefore reverse in part and remand to the district court for

further proceedings.

O’BRIEN V. WELTY 5

I. Background

A. Factual Allegations

The following narrative is based on allegations in

O’Brien’s First Amended Complaint (“FAC”). For present

purposes, we assume that the allegations of fact and

reasonably drawn inferences are true.

Plaintiff Neil O’Brien enrolled as a junior at Fresno State

in the fall semester of 2010 to pursue a degree in recreation.

O’Brien, who describes himself as a “constitutional

conservative,” quickly involved himself in political advocacy

on campus. He formed the Fresno chapter of the student

organization Young Americans for Liberty; he organized

events for the Central Valley Tea Party; and he frequently

attended student government meetings.

O’Brien soon became an outspoken critic of the Fresno

State faculty and administration. He particularly objected to

the university’s support for the student body president, an

undocumented immigrant, and to the administrators’

endorsement of the DREAM Act. O’Brien began a website

on which he posted information he had discovered about the

student body president on the internet and through IRS

records searches. He also posted criticism of Fresno State’s

separate graduation ceremony for Latino students. He filed

public records requests to obtain information on administrator

salaries and other issues, and he spoke up at student

government meetings. He learned that his records requests

were “reported all the way up to” then-university president

Dr. John D. Welty.

6 O’BRIEN V. WELTY

In response to the activities just described, university

officials monitored and interfered with O’Brien’s activities.

During O’Brien’s first year at Fresno State, Dr. Carolyn

Coon, Assistant Dean of Student Affairs, “requested that

students and other faculty members gather information and

complaints to use against” him. The director of alumni

relations sent emails to other administrators, including the

university’s communications director, requesting that they

“do something” about O’Brien and his website. In the fall of

2012, university officials deleted some of O’Brien’s posts

from Facebook pages that were “operated and managed by

university officials” and “permanently block[ed] him from

posting” about certain issues on the pages while, at the same

time, allowing the posts of “pro-radical left-leaning view

points in support of [the student body president] and other

leftist posts to remain.”

1. Videotaping Incident

In early May 2011, O’Brien read a poem in “La Voz de

Aztlan,” a supplement to the Fresno State student newspaper

published by the Chicano and Latin American Studies

(“CLS”) Department. O’Brien objected to the ways in which

the poem characterized the United States — including

“‘America the land robbed by the white savage,’ the ‘land of

the biggest genocide,’ the ‘place of greed and slavery,’ the

‘rapist of the earth,’ . . . [and] the ‘land of the brute, the bully,

the land of glorified killers, the eater of souls[.]’” On May

11, O’Brien went to the second floor of the social sciences

building to confront Dr. Victor Torres, the faculty advisor for

“La Voz” and a professor in the CLS Department. While

waiting in the hallway outside Torres’ office, O’Brien

overheard Dr. Maria Lopes, another CLS professor, comment

to Torres that O’Brien was “stalking” the hallway. Torres

O’BRIEN V. WELTY 7

said to Lopes that “the faculty should post ‘wanted’ signs

with pictures of [O’Brien’s] face on them to mock [him] and

to serve as a warning to other students and faculty as to what

[he] looked like and warn of [his] potential presence.” After

overhearing these comments, O’Brien decided to approach

not only Dr. Torres but also Dr. Lopes.

O’Brien approached Dr. Torres’ open office door, turned

on his video camera, and asked Torres if he had approved of

the publication of the poem. Torres refused to speak to him.

O’Brien “calmly insisted on speaking to Torres about the

poem.” Torres then picked up the phone and called campus

police. O’Brien next went to the open door of Dr. Lopes’

office, with his video camera turned on, and asked her the

same questions. She, too, refused to answer, stating that she

did not want to talk to him. When O’Brien insisted, she

closed her office door and called campus police. Torres and

Lopes subsequently filed complaints with the Fresno State

campus police. Dr. Luz Gonzalez, Dean of the Social

Sciences Department (of which the CLS Department is a

part), also filed a complaint with the campus police, even

though she had not been present during the videotaping

incident. O’Brien provided to the campus police a copy of

the videotape he had made while confronting Torres and

Lopes.

When Dr. Torres and Dr. Lopes later read the campus

police report of the May 11 incident, they learned that “the

Campus Police investigator had determined . . . that [O’Brien]

was not threatening and intimidating.” “Defendants Torres,

Lopes and Gonzalez requested the Campus Police to rewrite

the report to show that [O’Brien] was threatening and

intimidating.” The FAC does not specify whether the report

was rewritten as requested, but we infer from other

8 O’BRIEN V. WELTY

allegations in the FAC that it was not. At the request of

unspecified “Defendants,” the campus police “report[ed] the

matter” to the Fresno County District Attorney, but the

District Attorney declined to prosecute.

The FAC alleges that on May 24 “[t]he Campus Police

Department, now having reviewed the actual video tape of the

incident contacted Defendants Torres and Lopes again to

confront them about what they claimed [O’Brien] did and

said, the length of time he was in each of their offices, and to

let both Torres and Lopes know that the video tape of the

incident showed that their previous claims were not accurate.

Both refused to correct their false claims.”

Also on May 24, Dean Coon mailed a letter to O’Brien

informing him that he was facing disciplinary action. The

letter stated that his actions on May 11 constituted conduct

that “threatens or endangers the health, or safety . . . including

physical abuse, threats, intimidation, harassment . . . .” The

letter required him to attend a “judicial conference” or face a

possible “disciplinary hold” on his record.

2. Disciplinary Proceedings

In response, O’Brien emailed Dean Coon, copying

President Welty and campus police, “stating that Torres and

Lopes’ accusations were completely false,” and stating that

campus police had not contacted O’Brien to request a

statement. O’Brien asked Coon to provide him with copies

of “reports made by all students, staff, and administrators”

about O’Brien. Coon initially agreed to provide such reports

but later refused to do so. O’Brien requested that he be

allowed to bring an attorney to the “judicial conference,” and

O’BRIEN V. WELTY 9

that he be allowed to videotape and otherwise record the

proceedings.

Dr. Paul Oliaro, Vice President for the Division of

Student Affairs and Dean of Students, replied to O’Brien,

stating that President Welty had asked him to respond. Oliaro

wrote that pursuant to a “long-standing policy” of President

Welty, attorneys were not permitted to participate in “judicial

proceedings,” but that O’Brien could bring a non-attorney

advisor. Oliaro also wrote that O’Brien would not be allowed

to record or videotape the judicial conference.

The judicial conference took place on June 17. O’Brien

brought an attorney, but the attorney was not allowed to

participate in the conference. O’Brien brought no other

advisor. At the conference, Dean Coon offered O’Brien a

settlement under which O’Brien would admit the allegations

against him and would agree to sanctions restricting him from

coming within 100 feet of CLS faculty, staff, and offices.

O’Brien refused to sign the proposed settlement.

On August 26, Dean Coon sent O’Brien a letter stating

that disciplinary charges had been filed. The letter charged

him with violation of California Code of Regulations, tit. 5

§ 41301(b)(7) (“Student Conduct Code”), which authorizes

disciplinary sanctions for student conduct that “threatens or

endangers the health or safety of any person . . . including

physical abuse, threats, intimidation, harassment, or sexual

misconduct.” The letter detailed the procedures of a “judicial

hearing” at which O’Brien could contest the charges. The

letter stated that O’Brien could bring a non-attorney advisor,

but not an attorney, to the hearing.

10 O’BRIEN V. WELTY

The judicial hearing was held on September 13.

O’Brien’s attorney was not permitted in the hearing room.

The hearing officer was Mr. Marcus Freeman, who held

unspecified positions in the Arts and Humanities Department

and in the Human Resources Department. O’Brien again

asked permission to record the proceedings, and was again

refused. He asked to be provided a copy of the recording that

was being made by the university, but was refused on the

ground that the recording “was University property.” Dean

Coon was identified as the “investigator” at the hearing. Dr.

Torres, Dr. Lopes, Dean Gonzalez and O’Brien all testified.

O’Brien asked Mr. Freeman, the hearing officer, to look

at the videotape he had made during the May 11 incident, but

Freeman refused to do so. O’Brien then sought to have

campus police Detective Manucharyan, who had seen the

video, testify about what it contained. O’Brien’s attorney had

interviewed Manucharyan, who had told the attorney that Dr.

Torres and Dr. Lopes had not been “truthful” when they

reported the May 11 incident to the campus police, and when

they spoke to Manucharyan during his follow-up

investigation. O’Brien’s attorney was sitting with

Manucharyan in the lobby, out of earshot of the hearing

room. Dean Coon left the hearing room to call campus

police. When she returned, she reported that an unidentified

person at the police station had informed her that

Manucharyan was “not available,” and that “since the matter

was an ongoing investigation, none of the officers or

detectives would be able to come testify or comment on it.”

The FAC alleges that Manucharyan was “prepared to testify,

but no one from Fresno State advised Defendant[] Coon or

Freeman of that fact.” The FAC is silent on the question why

O’Brien did not inform Freeman that Manucharyan was

outside the hearing room and was prepared to testify.

O’BRIEN V. WELTY 11

On September 30, 2011, after having received a report

from Mr. Freeman recommending disciplinary sanctions

against O’Brien, Vice President Oliaro rendered a final, non-

appealable decision finding that O’Brien had violated the

Student Conduct Code. Oliaro concluded that Dr. Torres and

Dr. Lopes could reasonably have found O’Brien’s behavior

to be “intimidating and harassing and were concerned for

their safety.” Oliaro had not provided a copy of Freeman’s

report and recommendation to O’Brien prior to reaching his

decision. According to the FAC, Freeman’s report was

“replete with inaccuracies and blatant manipulation of the

‘evidence.’”

Vice President Oliaro imposed two sanctions: First,

O’Brien was prohibited from coming within 100 feet of CLS

faculty, staff, offices, or classrooms, or from coming onto the

second floor of the social sciences building, “unless [he had]

prescheduled business, a class, or an appointment.” Second,

O’Brien was placed on “disciplinary probation” through the

spring 2012 semester. Mr. Freeman had not recommended

this second sanction. As a consequence of the probationary

status imposed by Oliaro, O’Brien was prohibited by

university rule from being president or treasurer of the

campus chapter of Young Americans for Liberty, and from

holding any position in student government.

3. Further Incidents

O’Brien was involved in two further incidents involving

the Fresno State faculty and campus police. First, on

December 1 and 2, 2011, after the stay-away sanction had

been imposed, O’Brien returned to the social sciences

building to evaluate the building for compliance with the

Americans with Disabilities Act (ADA), as part of a class

12 O’BRIEN V. WELTY

assignment. He was confronted on both days by Dean

Gonzalez and other faculty members.

On the first day, Dean Gonzalez confronted O’Brien and

told him that he was not allowed in the building. O’Brien

told Gonzalez that he had a class assignment and that he was

therefore permitted to be in the building. Gonzalez called the

campus police. After the police arrived, they followed

O’Brien for about 15 to 20 minutes as he worked on the

assignment. Because of the delays occasioned by Dean

Gonzalez’s calling the campus police, O’Brien was unable to

complete the assignment.

On the second day, O’Brien came back to complete the

assignment, this time bringing his video camera with him.

Dean Gonzalez “again loudly confronted [O’Brien], scolding

him that he was not permitted to be there.” Another faculty

member in the sociology department, Dr. Matthew Jendian,

“loudly confronted” and then “confronted and pursued”

O’Brien as he was videotaping. The confrontation intensified

nearly to the point of physical violence. According to the

FAC, O’Brien continuously backed away from Jendian as he

was attempting to videotape the encounter. Gonzalez again

requested campus police. Jendian reported to the police that

O’Brien had been the aggressor in the confrontation. As a

result of Gonzalez’s claim that O’Brien was not allowed in

the building, campus police detained O’Brien until his

attorney arrived at the police station. After campus police

saw a copy of the stay-away order and an email from

O’Brien’s professor describing his assignment and

authorizing his presence in the building, they released

O’Brien. Vice President Oliaro afterwards informed O’Brien

that his presence in the building to work on his class

assignment had not violated his probation. However, “to

O’BRIEN V. WELTY 13

avoid confusion in the future,” Oliaro told O’Brien that going

forward he “expect[ed]” him to notify Dean Gonzalez’s office

at least 24 hours before entering the building.

Second, in spring semester 2012 O’Brien enrolled in two

courses that met on the second floor of the social sciences

building. O’Brien’s attorney contacted the campus police

ahead of time to inform them that O’Brien would be attending

classes in the building. On the first day of the semester,

O’Brien arrived early for class and sat down to eat lunch at a

table at the end of the second-floor hallway, near the CLS

department offices, where early-arriving students often ate

and chatted before class. As he sat down, a CLS professor

told him that he was not allowed in that hallway. The

professor informed Dean Gonzalez and the campus police.

Several days later Vice President Oliaro contacted O’Brien by

email to reiterate that he was not to be within 100 feet of CLS

offices or faculty unless he was attending class or on other

authorized business.

B. District Court Proceedings

O’Brien filed suit in state court alleging violations of his

constitutional rights, naming as defendants President Welty,

Vice President Oliaro, Dean Coon, Dean Gonzalez, Dr.

Torres, Dr. Lopes, Dr. Jendian, and 25 other unknown faculty

and campus law enforcement officers (collectively

“defendants”). Defendants removed to federal court.

O’Brien filed the operative FAC in federal court, alleging

violations of specific constitutional rights by specific

defendants under 42 U.S.C. § 1983, and a conspiracy to

violate his constitutional rights under § 1985. In particular,

he alleged that defendants imposed discipline under an

unconstitutionally overbroad and vague regulation, that they

14 O’BRIEN V. WELTY

imposed discipline for having engaged in speech and conduct

protected by the First Amendment, that they retaliated against

him for having engaged in protected speech and conduct, and

that they violated his right to equal protection, procedural due

process, freedom from unreasonable search and seizure, free

association, right to travel, and right to petition for

grievances. The videotape made by O’Brien on May 11 was

not attached to the FAC or otherwise made part of the record.

The district court granted defendants’ motion to dismiss

the complaint for failure to state a claim under Federal Rule

of Civil Procedure 12(b)(6). Relying on the “public forum”

doctrine, the district court held that the social sciences

building was a non-public forum, and that Fresno State could

therefore enforce a content-neutral regulation on speech. The

court held that O’Brien’s confrontation of Dr. Torres and Dr.

Lopes in their offices on May 11 could reasonably have been

perceived to be harassment and intimidation within the

meaning of the regulation. The district court further held that

the complaint did not allege facts sufficient to show that the

professors’ complaints, the disciplinary hearing, or the later

emails clarifying the sanctions were motivated by retaliation

for the content of O’Brien’s speech rather than O’Brien’s

violation of the regulation. The court rejected O’Brien’s

other constitutional claims. Finally, the court held that

because there had been no constitutional violation, defendants

were entitled to qualified immunity.

On appeal, O’Brien contests the district court’s dismissal

of his First Amendment claims. O’Brien is joined by amici,

who argue that California Code of Regulations, tit. 5,

§ 41301(b)(7) is unconstitutionally vague and overbroad both

facially and as applied to O’Brien.

O’BRIEN V. WELTY 15

We reject O’Brien’s facial and as-applied First

Amendment challenges to the regulation. However, we hold

that O’Brien has alleged sufficient facts showing retaliation

for protected speech to survive a motion to dismiss.

O’Brien’s other constitutional claims are waived for failure

to argue them sufficiently on appeal.

II. Standard of Review

This Court reviews de novo the district court’s dismissal

for failure to state a claim under Federal Rule of Civil

Procedure 12(b)(6). Outdoor Media Grp., Inc. v. City of

Beaumont, 506 F.3d 895, 899 (9th Cir. 2007).

III. Harassment and Intimidation

We begin by considering O’Brien’s First Amendment

challenge to Fresno State’s decision that he violated the

Student Conduct Code, as codified in state regulations.

Section 41301(b)(7) of Title 5 of the California Code of

Regulations authorizes branches of the California State

University to impose discipline for “[c]onduct that threatens

or endangers the health or safety of any person within or

related to the University community, including physical

abuse, threats, intimidation, harassment, or sexual

misconduct.” Vice President Oliaro found, on behalf of

Fresno State, that O’Brien violated this regulation when he

confronted Dr. Torres and Dr. Lopes in their offices with his

video camera. O’Brien challenges this decision on two

grounds. First, he contends that the regulation on its face

violates the First Amendment because it is overbroad and

vague. Second, he contends that the university’s application

of the regulation punished him for engaging in speech and

speech-related conduct protected by the First Amendment.

16 O’BRIEN V. WELTY

A. Overbreadth and Vagueness

Under the “substantial overbreadth” doctrine, a statute or

regulation may be facially invalid under the First Amendment

if there is a “realistic danger” that it will “significantly

compromise recognized First Amendment protections of

parties not before the Court.” Bd. of Airport Comm’rs v. Jews

for Jesus, Inc., 482 U.S. 569, 574 (1987) (internal quotation

marks omitted). In other words, a regulation imposing lawful

limits on some expressive activities may nevertheless be

invalid if at the same time it “reaches too much expression

that is protected by the Constitution.” DeJohn v. Temple

Univ., 537 F.3d 301, 314 (3d Cir. 2008).

A regulation may also violate the First Amendment if it

is unconstitutionally vague. To pass muster, a regulation must

“allow persons of ‘ordinary intelligence a reasonable

opportunity to know what is prohibited.’” Foti v. City of

Menlo Park, 146 F.3d 629, 638 (9th Cir. 1998) (quoting

Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)).

Three rationales underlie the void-for-vagueness doctrine:

(1) individuals should not be punished for behavior they

could not have known was illegal; (2) vague laws allow

arbitrary and discriminatory enforcement; and (3) vague laws

may have a chilling effect on free speech. See Grayned,

408 U.S. at 108–09; Foti, 146 F.3d at 638.

O’Brien challenges § 41301(b)(7) on the ground that it is

both overbroad and vague. He argues that the terms

“intimidation” and “harassment” involve subjective

determinations that turn on whether a particular individual

finds the conduct to be intimidating or harassing. Thus, he

argues, conduct that is “offensive” but protected under the

First Amendment is covered by the regulation. Further, amici

O’BRIEN V. WELTY 17

point out that “harassment” is defined differently in various

California laws and California State University policies. They

argue that these varying definitions give administrators wide

latitude to enforce the regulation arbitrarily or to use

enforcement proceedings to silence disfavored speech.

We rejected similar arguments in United States v.

Osinger, 753 F.3d 939, 944 (9th Cir. 2014). In Osinger, we

held that “because 18 U.S.C. § 2261A [the federal stalking

statute], proscribes harassing and intimidating conduct, the

statute is not facially invalid under the First Amendment.”

753 F.3d at 944. We noted that “harass” “[is] not [an]

esoteric or complicated term[] devoid of common

understanding.” Id. at 945; see also United States v. Shrader,

675 F.3d 300, 310 (4th Cir. 2012) (“‘Harass’ and ‘intimidate’

are not obscure words.”), cert. denied, 133 S.Ct. 757 (2012).

The fact that the terms may in some cases entail interpretation

is not enough to sustain an overbreadth or vagueness

challenge. Osinger, 753 F.3d at 943–45.

In the challenged regulation before us, the terms

“harassment” and “intimidation” do not stand on their own.

Section 41301(b)(7) prohibits only “harassment” or

“intimidation” that “threatens or endangers the health or

safety” of another in the university community. Cal. Code

Regs., tit. 5, § 41301(b)(7); see College Republicans v. Reed,

523 F. Supp. 2d 1005, 1022–23 (N.D. Cal. 2007). This

regulation is therefore narrower and more precise than the

statute that was sustained in Osinger, as well as much

narrower and more precise than university harassment

policies that have been held overbroad by our sister circuits.

See DeJohn, 537 F.3d at 316–17 (policy prohibited conduct

which “had the purpose or effect of creating an . . . offensive

environment”); Dambrot v. Central Mich. Univ., 55 F.3d

18 O’BRIEN V. WELTY

1177, 1182 (6th Cir. 1995) (policy defined “harassment” as

behavior that subjected another to “an intimidating, hostile,

or offensive . . . environment”). Further, this circuit has

recognized the needs of educational institutions to protect

their employees and students from potentially harmful

conduct. See Harper v. Poway Unified Sch. Dist., 445 F.3d

1166, 1178 (9th Cir. 2006) (upholding discipline of student

who wore homophobic t-shirt because it “injure[d] and

intimidate[d]” others), vacated on other grounds as moot,

549 U.S. 1262 (2007). We therefore conclude that

§ 41301(b)(7) is neither unconstitutionally overbroad nor

vague. Rather, it permissibly authorizes California State

University branches to discipline students who engage in

harassment or intimidation that threatens or endangers the

health or safety of another person in the university

community.

B. Protected Conduct

A regulation that is not facially overbroad or vague may

nonetheless be unconstitutional as applied, in an individual

case, to constitutionally protected speech. However, we

conclude that the application of § 41301(b)(7) to O’Brien’s

confrontation of Dr. Torres and Dr. Lopes on May 11 did not

violate the First Amendment. We agree with the district court

that O’Brien has not alleged facts sufficient to show that the

second floor hallway and offices of the social sciences

building were public fora. See Souders v. Lucero, 196 F.3d

1040, 1044 (9th Cir. 1999) (holding that the outdoor space of

a university was not a public forum); see also Helms v.

Zubaty, 495 F.3d 252, 256–57 (6th Cir. 2007) (finding that

“open-door policy” did not make county offices public fora).

Therefore, the university could regulate speech and

expressive conduct as long as the regulation was “reasonable”

O’BRIEN V. WELTY 19

and viewpoint neutral. Perry Educ. Ass’n v. Perry Local

Educators’ Ass’n, 460 U.S. 37, 46 (1983). It is clear from the

text of § 41301(b)(7) that it is a viewpoint neutral regulation.

It is also clear that § 41301(b)(7)’s authorization of discipline

for conduct that “threatens or endangers the health or safety”

of others in the university community is reasonable, as it is

consistent with the university’s interest in “preserving the

property . . . for the use to which it is lawfully dedicated,” i.e.,

ensuring a safe context for learning and teaching. See Perry,

460 U.S. at 50–51.

Assuming the allegations in the FAC to be true, we also

conclude that Fresno State’s application of § 41301(b)(7) to

O’Brien’s conduct was reasonable. According to the FAC, on

May 11 O’Brien, without an appointment,

[A]pproached Defendant Torres’ office door

which was open. With video camera on,

Plaintiff asked Torres if he had approved of

the “America” “White Savage” poem

published in that “La Voz” student

newspaper. Defendant Torres refused to speak

to Plaintiff. Nevertheless, Plaintiff calmly

insisted on speaking to Torres about that

poem. Defendant Torres’ reaction was to pick

up his telephone and call the Fresno State

Campus Police. Plaintiff then left Defendant

Torres’ office . . . . Plaintiff then approached

the open office door of Defendant Lopes and

asked her the same series of questions, with

his video camera running. She refused to

answer the questions, and when Plaintiff

asked again, Lopes stated that she did not

20 O’BRIEN V. WELTY

want to talk to him. She went to the door,

closed it, and then called Campus Police.

The FAC alleges that Dr. Torres and Dr. Lopes both filed

complaints with the Fresno State campus police stating that

O’Brien was “threatening, was attempting to instigate a

physical altercation, and that they felt threatened.” We may

infer from the FAC that there was conflict in the testimony

before the hearing officer, with Torres and Lopes, on the one

hand, and O’Brien, on the other, differently characterizing

their interactions on May 11. After hearing the testimony,

Mr. Freeman, the hearing officer, prepared a report finding

that O’Brien had violated § 41301(b)(7) and recommending

discipline. Sustaining the hearing officer’s findings, Vice

President Oliaro concluded that Torres and Lopes

“reasonably could find [O’Brien]’s behavior to be

intimidating and harassing and were concerned for their

safety.” In so concluding, Oliaro construed § 41301(b)(7) as

forbidding conduct that could reasonably be understood as

threatening, irrespective of the subjective intent on the part of

O’Brien. Compare Elonis v. United States, 135 S. Ct. 2001,

2012 (2015); Virginia v. Black, 538 U.S. 343, 359 (2003).

Taking the allegations in the FAC as true, we conclude

that Freeman and Oliaro reached a permissible conclusion.

Professors at work in their personal offices do not generally

expect to be confronted without warning by a student asking

hostile questions and videotaping. If the uninvited student

refuses to cease hostile questioning and refuses to leave a

professor’s personal office after being requested to do so, as

O’Brien admits occurred here, the professor may reasonably

become concerned for his or her safety. O’Brien’s behavior

as described in the FAC could be considered “harassment” or

“intimidation” and threatening under an objective

O’BRIEN V. WELTY 21

reasonableness standard. It was thus permissible for Fresno

State to impose discipline on O’Brien for this conduct under

its reasonable and viewpoint-neutral regulation.

IV. Retaliation

Although we have determined that O’Brien could

lawfully be subject to discipline for his actions, that does not

end our inquiry. Otherwise lawful government action may

nonetheless be unlawful if motivated by retaliation for having

engaged in activity protected under the First Amendment.

For example, in Skoog v. County of Clackamas, 469 F.3d

1221, 1235 (9th Cir. 2006), we held that a plaintiff need not

establish the absence of probable cause for a police officer’s

seizure of the plaintiff’s personal property to make out a First

Amendment retaliation claim. Therefore, though O’Brien

was appropriately subject to discipline for his confrontation

of Dr. Torres and Dr. Lopes, he may state a claim under

§ 1983 if his allegations, taken as true, could plausibly show

that the defendants’ actions in disciplining him were

substantially motivated by his protected speech or expressive

conduct.

There are three elements to a First Amendment retaliation

claim, as we explained in Pinard v. Clatskanie Sch. Dist. 6J,

467 F.3d 755 (9th Cir. 2006):

[A] plaintiff must show that (1) he was

engaged in a constitutionally protected

activity, (2) the defendant’s actions would

chill a person of ordinary firmness from

continuing to engage in the protected activity

and (3) the protected activity was a substantial

22 O’BRIEN V. WELTY

or motivating factor in the defendant’s

conduct.

Id. at 770 (citing Mendocino Envt’l Cntr. v. Mendocino Cnty.,

192 F.3d 1283, 1300 (9th Cir. 1999)). Once a plaintiff has

made such a showing, the burden shifts to the government to

show that it “would have taken the same action even in the

absence of the protected conduct.” Id. at 770 (internal

citation and quotation marks omitted); see Mt. Healthy City

Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)

(establishing this framework in the public employee speech

context).

We note here that the case before us does not implicate

the Supreme Court’s student speech doctrine as applied in the

high school setting in Hazelwood School District v.

Kuhlmeier, 484 U.S. 260, 273 (1988), which requires

considering First Amendment rights “in light of the special

characteristics of the school environment.” Id. at 266

(internal quotation marks omitted). As we recently explained

in Oyama v. University of Hawai’i, No. 13-16524, 2015 WL

9466535, at *7–9 (9th Cir. Dec. 19, 2015), we have not

extended this doctrine to the university setting. While Pinard

arose in the context of public school student speech, the

framework it uses for evaluating retaliation claims is neither

drawn from nor limited to public school student speech cases,

and is applicable here.

Applying the Pinard framework, the district court held

that the FAC failed to state a plausible claim for retaliation

under the First Amendment. We disagree.

In ruling on a motion to dismiss under Rule 12(b)(6), we

determine whether the complaint “contain[s] sufficient

O’BRIEN V. WELTY 23

factual matter, accepted as true, to ‘state a claim to relief that

is plausible on its face.’” Ashcroft v. Iqbal, 556 US. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007)). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. Judged under this standard, we

hold that O’Brien’s FAC plausibly supports a First

Amendment retaliation claim.

First, O’Brien has alleged facts showing that he engaged

in speech and conduct protected by the First Amendment in

the months leading up to his May 11 confrontation with Dr.

Torres and Dr. Lopes. For example, beginning in fall 2010,

O’Brien posted on a website his opposition to the student

government president and the school administration. He also

made several public records requests to Fresno State. We

agree with the district court that O’Brien’s expression of his

views, as described in his complaint, “qualifies as

constitutionally protected activity” under the First

Amendment. See, e.g., Obsidian Fin. Grp., LLC v. Cox,

740 F.3d 1284, 1291 (9th Cir. 2014) (finding that the First

Amendment protects blog posts equally to traditional

journalism for purposes of defamation suits).

Second, defendants’ actions in disciplining O’Brien

would “chill a person of ordinary firmness” from engaging in

these protected activities. Pinard, 467 F.3d at 770. The test

is generic and objective. Whether O’Brien himself was, or

would have been, chilled is not the test. See Mendocino

Envt’l Cntr., 192 F.3d at 1300. In Pinard, we held that

suspension from extra-curricular activities “would lead

ordinary student[s] . . . in the plaintiffs’ position” to refrain

from protected speech. Pinard, 467 F.3d at 771. Dr. Torres,

24 O’BRIEN V. WELTY

Dr. Lopes, Dean Gonzalez, and Dr. Jendian each made

complaints to campus police regarding O’Brien. Dean Coon

charged O’Brien with violating the Student Conduct Code

and initiated disciplinary proceedings. After a hearing, Vice

President Oliaro imposed sanctions, including disciplinary

probation, that restricted O’Brien’s access to parts of the

campus and limited his involvement in student groups and

student government. It is entirely plausible that a jury could

find these actions “reasonably likely to deter [an ordinary

person] from engaging in” protected speech and conduct. See

Coszalter v. City of Salem, 320 F.3d 968, 970 (9th Cir. 2003).

Finally, the factual allegations in the FAC are sufficient

to support a reasonable inference that defendants’ actions

were substantially motivated by O’Brien’s protected speech

prior to the May 11 videotaping incident. We disagree with

the district court’s conclusion that only “rank speculation”

supported O’Brien’s contention that the disciplinary

proceedings and sanctions were retaliatory.

The FAC alleges that prior to May 11, as a result of

O’Brien’s political activities and his criticism of university

faculty and administration, Dean Coon “requested that

students and other faculty members gather information and

complaints to use against” him. At least one student provided

complaints and other documents to Coon pursuant to this

request. Some of the defendants, as well as other faculty

members, sent emails to President Welty, Vice President

Oliaro, and Dean Coon, “demanding that [they] do something

about [O’Brien].” The FAC is not clear as to the timing of

these requests, but one may reasonably infer that they were

made prior to May 11. In addition, at about the same time,

the director of alumni relations sent emails to other

administrators, including the university’s communications

O’BRIEN V. WELTY 25

director, requesting that they “do something” about O’Brien

and his website. On May 11 itself, before O’Brien sought to

videotape Dr. Torres and Dr. Lopes in their offices, O’Brien

overheard Lopes saying that O’Brien was “stalking” the

hallway, and Torres saying that the faculty “should post

‘wanted’ signs with pictures of [O’Brien’s] face on them to

mock [him] and to serve as a warning to other students and

faculty as to what [he] looked like and warn of [his] potential

presence.”

The FAC also alleges that at the disciplinary hearing on

September 13, O’Brien was not given a full and fair

opportunity to present his side of the story. The hearing

officer refused to look at, or to allow O’Brien to show, the

videotape of his encounters with Dr. Torres and Dr. Lopes

even though O’Brien represented that the videotape would

contradict Torres’ and Lopes’ accounts of what happened on

May 11. Dean Coon made, at most, a half-hearted attempt to

locate Detective Manucharyan, who was sitting in the lobby

prepared to testify, and who would have testified about the

contents of the videotape. And the university refused to

allow O’Brien to record the proceedings, or to obtain a copy

of the recording that the university made of the proceedings.

We do not hold that O’Brien’s due process rights were

violated in the hearing; that question is not before us. But we

do point out that the university, and several of the defendants,

did not facilitate — and indeed impeded — O’Brien in his

attempt to document and explain his side of the story.

Further, the hearing officer recommended only that

O’Brien be sanctioned by a “stay-away” order, prohibiting

him from coming within 100 feet of CLS faculty, staff,

offices, or classrooms, or from coming onto the second floor

of the social sciences building without prescheduled business,

26 O’BRIEN V. WELTY

a class, or an appointment. Vice President Oliaro sua sponte

imposed an additional sanction, putting O’Brien on

“disciplinary probation” through the spring 2012 semester.

O’Brien had enrolled as a junior at Fresno State in the fall of

2010, so the probation status imposed by Oliaro would last

for the anticipated duration of his time at the university. The

consequence of O’Brien’s probationary status was that, by

university rule, he could not be the president or treasurer of

the campus branch of Young Americans for Liberty, the

political advocacy group that O’Brien himself had founded.

Further, and also as a consequence of his probationary status,

O’Brien could not hold a position in Fresno State student

government. In other words, the sanction added by Oliaro

sua sponte, above and beyond the sanction recommended by

the hearing officer, took direct aim at O’Brien’s political

activities on campus and forbade him from engaging in such

activities for the remainder of his anticipated time at Fresno

State.

The FAC alleges, finally, that after sanctions were

imposed, university officials continued to impede O’Brien in

various ways. On December 2, 2011, Dr. Gonzalez called

campus police when O’Brien was in the social sciences

building even though she had been informed the previous day

that he was in the building pursuant to a class assignment.

O’Brien was detained by the campus police and was released

only after his attorney came to the police station with a copy

of the stay-away order and an email from O’Brien’s professor

describing the assignment that permitted him to be in the

building. Further, in the fall of 2012 university officials

deleted posts made by O’Brien on university-managed

Facebook pages, permanently blocking him from posting

about certain issues, while at the same time allowing posts

expressing left-leaning viewpoints to remain.

O’BRIEN V. WELTY 27

Considered together, the foregoing is enough to support

the claim that O’Brien’s “protected activity was a substantial

or motivating factor in the defendant[s’] conduct” in

conducting disciplinary proceedings and imposing sanctions.

Pinard, 467 F.3d at 770. The events leading up to and

including the hearing and imposition of sanctions are the

most strongly probative of defendants’ motivation. But

events after the imposition of sanctions have some relevance,

for they may plausibly be understood to show a continuation

of animosity toward the conservative point of view articulated

by O’Brien, as well as toward O’Brien himself. If O’Brien

can establish the facts alleged, the burden would shift to the

defendants, who can avoid liability if they can show that they

“would have taken the same action even in the absence of the

protected conduct.” Id.

O’Brien named seven defendants in this case. We hold

that the FAC states a First Amendment retaliation claim

against five of them — Vice President Oliaro, Dean Coon,

Dean Gonzalez, Dr. Torres and Dr. Lopes. We hold that the

FAC has not alleged sufficient facts to state a claim against

the remaining two — President Welty and Dr. Jendian —

who were essentially peripheral figures with insufficient

connection to the critical events to be held responsible for

actions taken against O’Brien.

We caution against overreading our opinion. The First

Amendment does not give a free pass to students who violate

university rules simply because they can plausibly show that

faculty or administrators disapprove of their political views.

Our holding is by no means intended to disable university

faculty and administrators from imposing discipline on

students whose misconduct is preceded by or accompanied by

the expression of opinions with which faculty members or

28 O’BRIEN V. WELTY

administrators strongly disagree. Specifically, our holding is

by no means intended to protect from discipline students

whose speech or conduct may reasonably be seen as

threatening or constituting a danger to members of the

university community. Indeed, as we have indicated above,

O’Brien’s conduct in the videotaping incident in this case was

appropriately subject to discipline. The only issue in dispute

is whether defendants imposed that discipline as retaliation

for O’Brien’s protected activity.

We hold that a retaliation claim has been stated because

the allegations of the FAC, if believed, could reasonably

support a conclusion that faculty members and administrators

at Fresno State not only disagreed with the expressed political

views of O’Brien, but also sought to punish and muzzle him

in retaliation for his expression of those views. That is, if the

facts alleged in the FAC are believed, a reasonable jury could

conclude that defendants sought to punish O’Brien for his

expression of his opinions, and to deter and even prevent him

from engaging in speech and conduct protected by the First

Amendment. In sum, the allegations in the FAC make it at

least “plausible” that defendants’ actions were substantially

motivated by opposition to O’Brien’s protected speech and

expressive conduct. See Twombly, 550 U.S. at 570; cf.

Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741,

751–52 (9th Cir. 2001) (suggesting that evidence that

defendants knew of plaintiff’s protected speech and expressed

opposition to it can create a genuine dispute of material fact

on retaliatory motive to survive summary judgment). We

reiterate that on remand, even if O’Brien can establish the

facts in the complaint, the defendants may avoid liability if

they can show that they would have taken the same

disciplinary actions in the absence of O’Brien’s protected

activity. See Pinard, 467 F.3d at 770.

O’BRIEN V. WELTY 29

V. Qualified Immunity

The district court held that because defendants had not

violated any of O’Brien’s constitutional rights, they were

necessarily entitled to qualified immunity. The district court

did not need to reach the question of qualified immunity,

given its conclusion that defendants had not violated the

Constitution. By contrast, on the assumption that the

allegations of the FAC are true we have held that O’Brien has

stated a claim for retaliation, and the question of qualified

immunity is therefore before us.

“Qualified immunity is an affirmative defense that must

be raised by a defendant.” Groten v. California, 251 F.3d

844, 851 (9th Cir. 2001). When, as here, defendants assert

qualified immunity in a motion to dismiss under Rule

12(b)(6), “dismissal is not appropriate unless we can

determine, based on the complaint itself, that qualified

immunity applies.” Id.

“Determining whether officials are owed qualified

immunity involves two inquiries: (1) whether, taken in the

light most favorable to the party asserting the injury, the facts

alleged show the officer’s conduct violated a constitutional

right; and (2) if so, whether the right was clearly established

in light of the specific context of the case.” Krainski v.

Nevada ex rel. Bd. of Regents of Nev. Sys. of Higher Educ.,

616 F.3d 963, 970 (9th Cir. 2010) (citation and internal

quotation marks omitted). In this case, the district court held

that qualified immunity shielded defendants from suit

because the FAC “fail[ed] to set forth facts to show that any

constitutionally protected right was infringed by any

Defendant at any time.” As explained above, we disagree

30 O’BRIEN V. WELTY

with the district court and hold that the FAC pleads a

plausible First Amendment retaliation claim.

The constitutional right to be free from retaliation was

“clearly established at the time of defendants’ actions.”

Krainski, 616 F.3d at 969 (citing Saucier v. Katz, 533 U.S.

194, 202 (2001)). Retaliation for engaging in protected

speech has long been prohibited by the First Amendment.

See, e.g., Pinard, 467 F.3d at 770. We have previously made

it clear that there is a right to be free from retaliation even if

a non-retaliatory justification exists for the defendants’

action. Id.; Skoog, 469 F.3d at 1235. A reasonable official in

defendants’ shoes would thus have known that taking

disciplinary action against O’Brien in retaliation for the

expression of his views violated his First Amendment rights.

Our denial of qualified immunity at this stage of the

proceedings does not mean that this case must go to trial.

Once an evidentiary record has been developed through

discovery, defendants will be free to move for summary

judgment based on qualified immunity.

VI. Reassignment

O’Brien urges us to reassign the case to a different district

judge on remand. We reassign only in “rare and

extraordinary circumstances.” Krechman v. Cnty. of

Riverside, 723 F.3d 1104, 1112 (9th Cir. 2013) (internal

citation and quotation marks omitted). We believe

reassignment is not warranted. Though the district judge

made an error of law, we have “no reason to believe that [he]

would be unable fairly and correctly” to oversee further

proceedings on remand. Id.

O’BRIEN V. WELTY 31

Conclusion

We affirm the district court in part, holding that

California Code of Regulations, tit. 5, § 41301(b)(7) does not

violate the First Amendment, either on its face or as applied

in this case. However, we reverse in part, holding that

O’Brien has alleged facts supporting his First Amendment

retaliation claim that are sufficient to survive a motion to

dismiss under Rule 12(b)(6) as to five of the seven

defendants. We also reverse the district court’s conclusion

that these defendants are, at this stage of the proceedings,

entitled to qualified immunity. Finally, O’Brien has not made

more than a “bare assertion” of his other constitutional claims

in either his opening or reply brief, and therefore any

challenge to the district court’s dismissal of these claims is

waived. Greenwood v. Fed. Aviation Admin., 28 F.3d 971,

977 (9th Cir. 1994). Each side is to bear its own costs on

appeal.

AFFIRMED in part, REVERSED in part, and

REMANDED.