College ordered to bar faculty members from making derogatory statements about men

[Volokh, Eugene]

        Maybe I'm misunderstanding Michael's question, but it seems to me
that we should evaluate the decision based on its reasoning, not on
reasoning we can hypothesize for it.  The Montana Dep't of Labor & Industry
and the Montana Human Rights Commission believe that Mont. Code Ann.
49-2-307, which applies to all educational institutions, makes certain
"hostile and derogatory comments about men" by faculty members "illegal" --
not just possible grounds for firing by the government as employer, but
"illegal."  Had the opinion been written differently, relying explicitly on
the government's power as employer, I wouldn't criticize it the same way
that I do; but it was written in a way that on its face seems to rely on the
government's sovereign power to restrict speech, not on its power as
employer.

        Just to give an analogy, say that in a libel lawsuit against a
government-run university, a court ordered the university to pay damages
based on opinions (or accurate factual claims, or inaccurate factual claims
made without the required mens rea) that were expressed by a faculty member
speaking in a university-controlled publication.  Would it be permissible
for the state to allow lawsuits against public universities under these
circumstances?  Probably; the state can restrict its own agencies from
expressing, say, unfair opinions, and can probably even require
government-run universities to discipline faculty members (under at least
certain circumstances) when they express such opinions.  Government-run
universities' rights in this respect are less than the rights of private
universities; the government acting as university manager, and as employer
of university faculty, has more power than when acting as sovereign.

        But if the court enters this libel judgment without any such special
government-run-university-only law supporting it, and draws no distinction
at all between government-run universities and private ones, then I take it
we could still sensibly criticize the court's decision.  Such a decision, we
might think, would suggest that in a similar case against a private
university the court would have punished the private university's speech,
too, and that would be clearly unconstitutional.

        The same analysis, I think, applies here.  Had the agency decision
relied on the government's role as employer here, its decision might be
defensible -- but neither the decision nor the statute which the decision
applied was in fact relying on this role.




Michael Masinter writes:

> I come late to this discussion, but why does this order apply to
> nonparties?  If it applies only to parties, then why would it bind a
> private nursing school?  Though the reasoning underlying the order may not
> depend upon the state - private distinction, doesn't that distinction
> necessarily matter in assessing the constitutionality of the order?
> Presumably Montana courts follow generally accepted appellate practice and
> review judgments, not opinions, and would affirm a proper judgment even if
> it disagreed with the reasoning of the administrative agency that entered
> it (as an aside, Florida courts, in one of their few notable contributions
> to the lexicon of the law, have named the Florida version of that doctrine
> The Tipsy Coachman Rule).
>
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