Med School Beats First Amendment Suit Over Student’s Online Rant

The University of New Mexico doesn’t have to face a First Amendment lawsuit by a medical student who had to undergo professionalism training after posting a profanity-laced anti-abortion screed on Facebook, the Tenth Circuit ruled Nov. 14.

Paul Hunt’s Facebook post, written shortly after the 2012 election, referred to Barack Obama’s supporters as “sick, disgusting people” who support “genocide against the unborn” based on their “depraved belief in legal child murder.” It described Democrats as “Moloch worshiping”—an allusion to the Mesopotamian god of child sacrifice—and said they were worse than Nazis who participated in the Holocaust out of “honest patriotism.”

In response to complaints, UNM required Hunt to undergo a “professionalism enhancement prescription.” The probationary program involved multiple writing assignments, including an essay about doctors and politics, an apology letter he could show anyone or no one, and a rewritten version of the Facebook post that was “passionate yet professional.”

Rather than appealing, Hunt acknowledged his “deficiencies” and ultimately passed each assignment. He also had a notation added to his file, but he had the right to petition for its removal.

Instead, Hunt sued the school’s board of regents. A federal judge granted summary judgment for the board, noting that state officials are immune from federal civil rights suits unless they infringe a well-established constitutional right. Whether or not the First Amendment covered Hunt’s post was far from “well-established” in 2012, the judge said.

Hunt, backed by a coalition of free speech groups, sought review from the U.S. Court of Appeals for the Tenth Circuit. The amici included the Electronic Frontier Foundation, the National Coalition Against Censorship, the Cato Institute, and others.

They argued that the trial judge should have determined whether Hunt’s rights were violated, not just whether they were well-settled. The judge also got the latter question wrong, they said.

The court rejected those arguments, saying online student speech is “an emerging area of constitutional law” that the U.S. Supreme Court hasn’t considered. The justices have ruled both ways in arguably similar situations, and they’ve never taken an online student speech case, according to the opinion.

“Hunt and the amici have provided a patchwork of cases connected by broad legal principles, but the law in late 2012 and 2013 would not have given the defendants notice that their response to the Facebook post was unconstitutional,” the Tenth Circuit wrote.

Given the uncertainty, the school acted reasonably in “requiring a graduate student to meet standards of professionalism that would be expected of him” in the workplace, the court found.

Judges Jerome Holmes, Scott Mattheson Jr., and Terrence L. O’Brien signed the unpublished ruling.

Hunt was represented by the Baker Law Firm. The board was represented by Montgomery & Andrews.

The case is Hunt v. Bd. of Regents of Univ. of N.M., 10th Cir., No. 18-2149, unpublished 11/14/19.