The Appeals Court of Kansas has upheld a lower court's decision finding it beyond the reach of a university to expel a student for off-campus behavior.
Beneath this logical conclusion are some not-so-pretty facts. The origin of the lawsuit is a "bad breakup" that resulted in criminal charges for the former boyfriend, Navid Yeasin. (h/t That Anonymous Coward)
In Johnson County during the summer of 2013, an argument occurred between Yeasin and his now ex-girlfriend after he saw messages from another man on her phone. The two drove around arguing and she asked Yeasin to let her out, but he refused. He also refused to return her phone.What Yeasin did next did not play a role in this decision, which was ultimately decided on the merits (or lack thereof) of the University of Kansas' interpretation of its own policies. But it does say something about the reach of the school's no-contact order (the school added its own on top of the one handed down by the county court), which was certainly further than it should have been.
She complained to the Johnson County police. Court records show Yeasin was charged with criminal restraint, battery and criminal deprivation of property. To resolve this incident, Yeasin voluntarily entered a no-contact order, meaning he could not contact his ex-girlfriend.
“The Judge who entered the order ruled that it was entered by consent with no findings of abuse,” [attorney Terry] Leibold said. “In order to comply with the no-contact order, Navid removed the ex-girlfriend as a follower of his tweets. His Twitter account was private and could only be accessed by his followers.”Yeasin still used his Twitter account to make disparaging remarks about his ex-girlfriend (referred to simply as "W" throughout the proceedings). But he never directed messages towards her. He tweeted about her but never used her name. This didn't keep the tweets from being mostly despicable and they certainly were "decoded" by those familiar with both parties, but the university's no-contact order went far enough to make even this indirect non-communication a potential violation. From the ruling:
You are hereby informed that this 'no contact' order means that you understand you are prohibited from initiating, or contributing through third-parties, to any physical, verbal, electronic, or written communication with [W.], her family, her friends or her associates. This also includes a prohibition from interfering with her personal possessions. . . . Moreover, retaliation against persons who may pursue or participate in a University investigation, whether by you directly or by your associates, is a violation of University policy.On the same day the university opened its investigation into his off-campus actions, Yeasin tweeted:
On the brightside you won't have mutated kids. #goodriddensAfter being informed of the university's no-contact order, he tweeted:
Jesus Navid, how is it that you always end up dating the psycho bitches?' #butreallyguysOver the next few weeks, he tweeted the following:
Oh right, negative boob job. I remember her.These tweets were reported to the university. (No reports were made to law enforcement.) The university's Office of Institutional Opportunity and Access (IOA) sent Yeasin an email telling him that even though the tweets didn't mention W's name, they were still a violation of the no-contact order, which was expanded to cover even more potential communications.
If I could say one thing to you it would probably be "Go fuck yourself you piece of shit." #butseriouslygofuckyourself #crazyassex
Lol, she goes up to my friends and hugs them and then unfriends them on Facebook. #psycho #lolwhat
Brooks gave Yeasin a second warning that "[g]oing forward, if you make any reference regarding [W.], directly or indirectly, on any type of social media or other communication outlet, you will be immediately referred to the Student Conduct Officer for possible sanctions which may result in expulsion from the University."Seven hours later, Yeasin tweeted:
lol you're so obsessed with me you gotta creep on me using your friends accounts #crazybitchYeasin was summoned by the IOA, where he made conflicting statements about whether or not the tweets referred to W. He also made this concession:
Yeasin told McQueeney that he would not tweet anything that could be perceived as being directed at W. and he recognized doing so was a violation of both the protection order and the no-contact order.The university moved ahead with its investigation and decided Yeasin's tweets had violated the no-contact order and expelled him, along with banning him from the campus until W. had graduated.
[G]iven its finding that the University erroneously interpreted the Student Code by applying it to off-campus conduct, the district court found that the University's decision that Yeasin violated Article 22 was not supported by substantial evidence because it failed to establish that Yeasin's conduct occurred on campus or at a university-sponsored event.
The district court ordered that the University readmit Yeasin, reimburse or credit Yeasin for his fall 2013 semester tuition and fees that he paid, and pay the transcript fees. However, the court issued a stay order at the University's request.The appeals court agrees. It points out that the sections of the student code the university cited to support its expulsion of the student both contain wording that limits the university's discipline to actions taken on campus or during university-sponsored events.
Through every step of the disciplinary proceedings, the University relied on Article 22 of the Student Code as the basis for Yeasin's discipline. But, on appeal, the University cherry-picks a small phrase from Article 20 to argue that it did indeed have the authority to expel Yeasin for his actions in Johnson County during the summer and for his tweets in violation of the no-contact order.Following this conclusion, the appeals court affirms the lower court's decision and lifts the stay order. Because the case was limited to school policies, the question of whether Yeasin's speech was protected by the First Amendment (almost definitely) isn't addressed.
The University asks us to find that the district court should have interpreted the phrase "or as otherwise required by federal, state or local law" found in Article 20 to mean that the University's jurisdiction to discipline a student for violating Article 22.A. extended to a student's off-campus conduct.
If we construed Article 20 as the University wants, we must insert words to the effect "for conduct wherever committed." The phrase then becomes, "or as otherwise required by federal, state, or local law for conduct wherever committed." If that is what the drafters of the Student Code meant, the article could have been written in that fashion.
The tweets made their way back to the ex-girlfriend who told the IOA about the tweets claiming the tweets were in violation of the no-contact order issued by the IOA…The tweets were no different than if Yeasin had complained to his friends about his ex-girlfriend and whatever he said ultimately reached the ex-girlfriend.”The ruling here makes sense, even as it protects the unsavory actions and words of an apparently terrible person. But it is very much limited to the policies in place at the University of Kansas. The ruling notes that the school could claim jurisdiction over events occuring off-campus, but it apparently hadn't considered that angle until it was in the middle of a lawsuit. Expanding that reach may be the school's perogative, but any attempts it makes to control off-campus speech will only result in addtional lawsuits -- these ones predicated by the First Amendment.
“It is essential as you work to finalize the TPP, you allow Kentucky tobacco to realize the same economic benefits and export potential other U.S. agricultural commodities will enjoy with a successful agreement.”And here's Hatch actually making a fairly salient point about the carve out:
“Although I don’t support tobacco at all, I still think it was essential,” Hatch said. “It’ll cost us some votes. And every vote is essential. And there are other things I am very concerned about. I’ve committed to read the bill, and I will read it, but right now I’m leaning against it.”That doesn't bode well for the agreement, given that Hatch was a huge supporter of the TPP. Another Senator, Thom Tillis, has pointed out that carving out one industry opens up the possibility of carving out others:
“I’ll not only vote against it, I’ll work hard to have it defeated if it goes in the final agreement.... Once you carve out someone from dispute settlement agreements, then who’s next?”And the tobacco carve-out, believe it or not, seems to be one thing that both big business and big labor agree on, though for entirely different reasons. The US Chamber of Commerce and the National Association of Manufacturers are totally against it:
we ask all of the TPP governments to reject the exclusion of products from the coverage of the TPP and its enforcement mechanism.... Such exclusions are unnecessary and would be highly damaging to the international rules based trading system and the prospects for the TPP.And here was the AFL-CIO opposing the entire ISDS mechanism, and noting that the tobacco carve-out just highlights the problems of ISDS. Whereas Senator Tillis worried about "who's next" to get carved out, the AFL-CIO is pointing out that maybe there should be a lot more.
Any industry-specific carve-out will not address the serious structural problems inherent in the system itself. Issues of broad public interest should not be viewed through the narrow lens of trade and investment at all, let alone decided by unaccountable private panels. Systems of justice should be transparent and accessible on an equal basis. ISDS is anything but: Only foreign investors can use it and there are no requirements that affected communities be allowed to participate or even have their view considered. In many cases, there often are not even requirements that hearings or decisions be made available to the public at all! Even in the case of clear legal error, it is almost impossible to reverse a decision.Indeed, as Sean Flynn pointed out just last week, carving out tobacco really just enforces how dangerous corporate sovereignty really is:
The new exception validates, rather than assuages, the concerns of those who have been criticizing ISDS systems for many years. Without express carve outs, ISDS provisions do threaten common health and safety regulations.Meanwhile, US trade officials are, of course, trying to tap dance around the fact that basically everyone absolutely hates this. The USTR has tried to pretend this isn't a big deal because tobacco is "unique."
The carve out does nothing to halt the disturbing recent trend of companies using ISDS provisions in trade agreements to enforce international intellectual property norms through ISDS tribunals. This is, indeed, the claim at the heart of the tobacco cases now being litigated in ISDS systems. The claim is that tobacco regulations requiring plain packaging violate the trademark rights of tobacco companies protected by the World Trade Organization agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). The pharmaceutical company Eli Lilly has also claimed that the denial of a new use patent on an old (off-patent) medicine violates rights granted by TRIPS and the North Atlantic Free Trade Agreement (NAFTA).
The U.S. Government seeks to include this language because tobacco is a unique product – it is highly addictive, always harmful to human health, and the single most preventable cause of death in the world. Recognizing these facts about tobacco through the TPP will represent an important step forward for public health in the international trade community.It's true that tobacco can be a serious health concern, but shouldn't we be raising questions about why this procedure is no good for tobacco companies, but just dandy for every other industry -- including some that produce harmful products? Or those like pharmaceutical companies who are jacking up prices to keep necessary medicines out of the hands of the poor?
“TPP will not discriminate against any agricultural commodity nor will it exclude tobacco. On the contrary, TPP will provide protections to ensure that governments can implement tobacco control measures, while guaranteeing that tobacco has the same legal status as any other product,” a U.S. official told CQ Roll Call last week.In short, the whole tobacco carve-out situation is a microcosm of the problems with the TPP. You have a terrible idea (corporate sovereignty) mixed with a weak attempt to appease health activists (carve out tobacco), that basically fixes nothing and satisfies no one. And, now, the same Senators in Congress who demanded the fast track authority be granted, which ties their own arms behind their backs in terms of changing the agreement, are threatening to force this change, even though they've already given up the power to do so.
Users must: (1) if sued for infringement, prove to the court by a preponderance of the evidence that they performed a good faith, qualifying search to locate and identify the owner of the infringed copyright before the use of the work began; (2) file a Notice of Use with the Copyright Office; (3) provide attribution to the legal owner of the copyright, if reasonable under the circumstances; (4) include a to-be-determined "orphan works" symbol with any public distribution, display, or performance of the work; (5) assert eligibility for such limitations in the initial pleading in any civil action involving the infringed work; and (6) state with particularity the basis for eligibility for the limitations during initial discovery disclosures.Now, let's look at this in terms of Happy Birthday. If you want to sing Happy Birthday, you would first have to conduct and document a "good faith, qualifying search to locate and identify the owner" of Happy Birthday before you sang it. You would then have to file a "notice of use" with the Copyright Office, telling the Copyright Office about this use of an orphaned work. Now, obviously, for most folks singing "happy birthday" at a birthday party, they're not going to do that -- and that's fine. After all, they ignored the copyright when many believed Warner/Chappell held a valid copyright.
There's a common refrain regarding services these days that "if you're not paying for it, you're the product" — but this notion is at best an oversimplification, and at worst outright untrue. This week, we look at the far more complex and diverse reality of how free services relate to their users.