April 2019 - Parks & Recreation - 40

LAW REVIEW

Fraternity's skit " was " inherently
expressive and thus entitled to First
Amendment protection. "
On appeal, the university had argued further trial proceedings were
necessary to " demonstrate that the
contest does not merit characterization as a skit but only as mindless
fraternity fun, devoid of any artistic expression. " Specifically, the
university argued: " entitlement to
First Amendment protection exists
only if the production was intended
to convey a message likely to be understood by a particular audience. "
Based on the pretrial record, the
university claimed it was " impossible to discern the communicative
intent necessary to imbue the Fraternity's conduct with a free speech
component. " The federal appeals
court rejected the university's argument. In the opinion of the court,
" the First Amendment protects the
Fraternity's skit because it is inherently expressive entertainment. "

Based on the university's pretrial sworn statements, the federal
appeals court found " University
officials sanctioned Sigma Chi
for the message conveyed by the
'ugly woman contest' because
it ran counter to the views the
University sought to communicate to its students and the
community. "
Intent to Convey
Particularized Message?
As cited by the court, the test for
determining the expressiveness
of conduct requires " an intent to
convey a particularized message
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Parks & Recreation

and a great likelihood that the message would be understood by those
who viewed it. " Further, the court
acknowledged: " the intent to convey a message can be inferred from
the conduct and the circumstances
surrounding it. " In the opinion of
the court, the skit in this instance
" qualifies as expressive conduct. "
In reaching this conclusion, the
court cited the university's pretrial
sworn statements, which conclusively established " the punishment
was meted out to the Fraternity
because its boorish message had
interfered with the described University mission " :
The affidavit from the University's Vice-President...stated that the
message conveyed by the Fraternity's conduct - that racial and
sexual themes should be treated
lightly - was completely antithetical to the University's mission of
promoting diversity and providing
an educational environment free
from racism and sexism.
[The Dean] in his affidavit stated that the University does not
and cannot condone this type of
on-campus behavior which perpetuated derogatory racial and sexual
stereotypes, tends to isolate minority students, and creates a hostile
and distracting learning environment. Such behavior is incompatible with, and destructive to, the
University's mission of promoting
diversity within its student body
and sends a message to the student
body and the community that we
are not serious about hurtful and
offensive behavior on campus.
According to the court, these
statements conclusively established
" the University officials thought
the Fraternity intended to convey
a message. " Similarly, the court

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found " [t]he Fraternity members'
apology and post-conduct contriteness suggest that they held the
same view. "
That being said, the court found
no evidence suggesting " the Fraternity advocated segregation or
inferior social status for women. "
On the contrary, the court found
" the Fraternity's purposefully nonsensical treatment of sexual and
racial themes was intended to impart a message that the University's
concerns, in the Fraternity's view,
should be treated humorously. " As
a result, based on the Fraternity's
conduct and the circumstances
surrounding it, the federal appeals
court had " no difficulty in concluding that it intended to convey
a message. "

Likelihood Viewers
Understood Message?
Having found an intent to convey a
particularized message, the federal
appeals court then considered the
second prong of the test for determining the expressiveness of conduct; i.e., " a great likelihood that
the message would be understood
by those who viewed it. " Under
the circumstances of this case, the
court found " there was a great likelihood that at least some of the audience viewing the skit would understand the Fraternity's message
of satire and humor. " While the
Fraternity " did not anticipate...
the reaction to their crude humor
by other students on campus and
University officials who opposed
the racist and sexist implications
of the Fraternity's skit, " the court
noted: " Some students paid to attend the performance and were entertained. "
The federal appeals court, there-

April 2019 - Parks & Recreation

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