The Mary L. Stephens Davis Library likely opened itself up to a free speech lawsuit on Sunday by asking a speaker to leave for repeatedly misgendering trans women competing in sports, legal experts said, further polarizing an already tense situation for the town’s LGBTQ+ community.
The flareup drew headlines from national conservative news outlets and over a million views on X, formerly known as Twitter. The inciting incident took place when Sophia Lorey, outreach coordinator for the conservative advocacy group California Family Council, attempted to share her thoughts on the state’s policy allowing trans youth to compete on sports teams in alignment with their gender identity. Referring to trans women as “biological males,” her remarks did not fall upon sympathetic ears.
The audience started to complain and soon, some members turned to one library official, Scott Love. He spoke up and cited the library’s code of conduct, which asks community members to “speak and act in a manner that doesn’t disturb others,” according to the library website.
Lorey’s supporter pushed back.
“I love the fact that you have your signs and are here today,” fellow activist by her side Erin Friday shouted out to Love and a crowd of pro-LGBTQ counter protesters who showed up. “But we all have First Amendment rights, whether you believe what I believe or I believe what you believe.”
The arguments put forth by the library at the time of the event fall flat in the face of the law, experts in the First Amendment told the Sacramento Bee. The library is not as much of a shared public space as a sidewalk, but it is a “designated public forum” where events and more specific activities can be held without concerns of viewpoint discrimination.
“Even though they received complaints from community members, and from people who were in attendance at the event, I do not think they have the ability to remove someone based on the content of their speech in this case,” said Michelle Deutchman, executive director of the UC National Center for Free Speech and Civic Engagement.
Love and other representatives for the library did not respond to requests for comment in time for publication.
A lawsuit for the library and charges for the perpetrator
A bomb threat to the library was reported the day after the incident, which also triggered the evacuation of a nearby elementary school.
Lt. Don Horman of the Yolo County Sheriff’s Office wrote in an email that an “ongoing inquiry is underway concerning the threat,” that was transmitted to a local news agency by email. He said it “contained offensive language directed towards the LGBT+ community.”
Authorities are still determining whether the threat was a hate crime. Anti-trans and anti-gender non-conforming hate crime acts rose by about 55% from 2021 to 2022 in California, according to data from the state’s Department of Justice.
Advocates in support of the LGBTQ+ community were quick to point out the sequence of events in line with Sunday’s incident but remained cautious given ongoing investigation. They cite a sustained campaign by groups like Moms for Liberty, the organizers of the library event, at local school board meetings in the past few months as one reason to remain vigilant about Sunday’s event and the threat.
While the links between the perpetrator and yesterday’s ousting remain unclear, experts said the threats do little to change the legal stakes of the library’s decision.
“If they were worried about violence, and there was a serious concern, they could have shut the event down from the start,” said Ashutosh Bhagwat, a distinguished professor at the UC Davis School of Law. “That is a legitimate neutral grounds shutdown, if there’s a real objective concern about violence, but then you got to do it both ways.”
The bomb threat is undeniably “horrible” and “deeply concerning,” he said, adding that he worries the removal of the speakers only fueled the flames contributing to the bomb threat. What is clear is that whoever made the email threat is “not protected” by the law, he added. “Ideally, they’d be prosecuted.”
Authorities said they would pursue looking into any possible connections.
“We are cognizant of the incident that transpired at the library during the weekend, involving a group being asked to depart due to their conversation,” Harmon wrote. “As the investigation progresses and a potential perpetrator is identified, we will explore any potential connection between the two occurrences.”
What could the library have done instead?
Though library officials did not have the legal right to stop the speech, there were several other options they had to show support of the trans community, Deutchman said. For example, they could’ve put out statements in support of the LGBTQ+ community or trans youth or allowed a counter event, she said, all of which are constitutionally permissible. Another option would’ve been to ban all political events in entirety, a viewpoint neutral move.
Another argument advanced by library officials at the time had to do with state law, namely that California protects against anti-trans discrimination, which state officials have clarified includes intentional misgendering. Those provisions largely deal with interpersonal discrimination, experts said, like in the workplace.
While Deutchman herself is “certainly” against misgendering: “The person was making sociopolitical statements, and even though the library might have codes of conduct, I don’t think that your code of conduct can override the First Amendment.”
“We’re in a moment where the expression issues are no longer just about what people are saying, it’s all about the narrative and what narrative people are trying to tell and how are they going to frame it,” she said. “When people come, whether to the Davis library or to Stanford or wherever it is ready to film an interaction, that leads me to wonder: what is the real goal of this?”
Friday, who is also a lawyer, warned the library on the spot that she would take legal action, and her case might find a more favorable audience in court.
“If the library were to get sued, I think they’d be facing an uphill battle from a First Amendment perspective,” Deutchman said.
This is the fifth event Moms for Liberty has held at the library this year, with other topics including book selection for kids and detransitioning.
This story was originally published August 23, 2023 6:00 AM.
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