The decision was unanimous. The Washington Post’s Eugene Volokh has the analysis here. Kennedy, Ginsburg, Sotomayor and Elena Kagan’s concurring opinion reads as if written specifically in response to the UO administration’s discipline of law school professor Nancy Shurtz:
The Government may not insulate a law from charges of viewpoint discrimination by tying censorship to the reaction of the speaker’s audience. The Court has suggested that viewpoint discrimination occurs when the government intends to suppress a speaker’s beliefs … but viewpoint discrimination need not take that form in every instance. The danger of viewpoint discrimination is that the government is attempting to remove certain ideas or perspectives from a broader debate. That danger is all the greater if the ideas or perspectives are ones a particular audience might think offensive, at least at first hearing.
I’m no lawyer, but this language doesn’t seem to give any support for the November 30th 2016 report from the UO General Counsel’s attorneys, concluding that the First Amendment did not protect Professor Shurtz, because she had engaged in speech that a particular audience thought offensive:
… In evaluating the event in light of the University’s policies against discrimination, it is important to outline the outcomes and impacts following the event, upon both the attendees as well as the student body. As stated previously, different guests had differing personal perspectives, so the range of responses varied accordingly. One point that was clear, at least before the event, was that most of the attendees knew Shurtz (setting aside the family members and plus-ones), had an appreciation for or understanding of her personality and her general intentions, and held her in esteem.
All the students interviewed made it very clear that the impacts of the event and the costume extend far beyond those students and individuals who were in attendance, and that the resulting environment at the school has been very negative and contentious. …
Based on the interviews conducted and our review and analysis of the information obtained during this investigation, we conclude:
1. That Nancy Shurtz’s wearing of the costume at the stated event constitutes a violation of the University’s policies against discrimination. We further find that the actions constitute Discriminatory Harassment under those policies.
2. That the actual disruption and harm to the University resulting from Nancy Shurtz’s wearing of the costume at the stated event are significant enough to outweigh Nancy Shurtz’s interests in academic freedom and free speech.
Respectfully Submitted, Edwin A. Harnden Shayda Z. Le Barran Liebman LLP