In a victory for campus free speech at the University of Texas, with national implications, the Fifth Circuit Court of Appeals just issued its decision in favor of plaintiff Speech First, Inc.

The appeals court held that the trial court erred when it dismissed Speech First’s Complaint and denied its Motion for Preliminary Injunction. The trial court had agreed with UT’s position that Speech First “lacked standing” to sue. The appeals court held:

This conclusion was mistaken. The chilling effect of allegedly vague regulations, coupled with a range of potential penalties for violating the regulations, was, as other courts have held sufficient “injury” to ensure that Speech First “has a ‘personal stake in the  outcome of the controversy.’” Susan B. Anthony List v. Driehaus, 573 U.S. 149,  158, 134 S. Ct. 2334, 2341 (2014) (quoting Warth v. Seldin, 422 U.S. 490, 498,  95 S. Ct. 2197, 2205 (1975)).

Speech First, Inc. v. Fenves, No. 19-50529, at 1 (5th Cir. Oct. 28, 2020)(“Opinion”).

Background

Speech First initially sued UT in December of 2018, arguing that four (4) of the University’s policies governing students’ speech violated the students’ First and Fourteenth Amendment Rights, specifically the Policies below:

  1. The Institutional Rules
  2. Acceptable Use Policy
  3. Residence Hall Manual
  4. Hate & Bias Incidents Policy and Campus Climate Response Team (“CCRT”)

1. The Institutional Rules

UT argued that the Institutional Rules are “bedrock standards to which all University community members must adhere.” Opinion at 2. Although this University Policy begins with proclaiming that the “freedoms of speech, expression, and assembly” are “fundamental rights of all persons,” it goes on to state that this freedom of expression is “subject only to rules necessary to preserve the equal rights of others and the other functions of the University.” (See Section 13-101.)

In addition, in the subchapter entitled “Prohibited Expression”, the University prohibits a plethora of speech, including “Verbal Harassment”, defined as “hostile or offensive speech, oral, written, or symbolic.” Opinion at 2.

Under these Rules, the Dean of Students has the primary responsibility to carry out student discipline, but other University actors may also engage in the process of alleged violations.

2. Acceptable Use Policy

To use information technology devices at UT, students must abide by certain “requirements,” including to “be civil” and to “not send rude or harassing correspondence.” Punishments for alleged violations include, but are not limited to verbal warnings, suspension from UT, or criminal prosecution. According to UT, suspension under this Policy occurs to several students each and every semester.

3. Residence Hall Manual

Here, once again, UT prohibits “Harassment” and “Incivility”, stating:

Students are expected to behave in a civil manner that is respectful of their community and does not disrupt academic or residential activity. Uncivil behaviors and language that interfere with the privacy, health, welfare, individuality, or safety of other persons are not permitted.

Violators of this Policy, may be forced to engage in “educational measures…designed to affect [sic] a change in behavior and to help the student understand how their behavior impacted others in the residence hall community.” Other “sanctions” might include,“loss of privileges,” or loss of “on-line educational modules, meetings with University staff members, educational/reflection papers, poster assignments, or presentations at hall meetings,” or  “administrative sanctions”, such as a forced room change, fine, or bar on the student’s record. Opinion at 6.

4. Hate & Bias Incidents Policy and CCRT

Lastly, while the Hate & Bias Incidents Policy describes “Verbal Harassment” with the same language as seen in the Institutional Rules, this Policy states that students may report threatened or actual harassment to either the Office of the Dean of Students or the Office of Inclusion & Equity.

Moreover, in 2011, the University instituted the CCRT:

The CCRT acts in response to campus climate incident reports, which  may be filed online by the ‘victim’ of an alleged incident, a witness, or any  third party ‘who was informed of the incident but was not present at the time  of its occurrence.’ The reports may be anonymous. Upon filing, usually online,  the report is examined by the CCRT Lead Team ‘to determine whether the  situation, as reported, falls within the parameters of a campus climate incident  or whether the incident should be referred to other response teams or offices.’ 

CCRT Lead Team members ‘will also determine if there is a possible violation  of the [Institutional Rules].’ Among other responses, the CCRT may decide to provide ‘support and information to student(s), staff or faculty who initiated  the incident.’

Opinion at 7-8.

Trial Court Proceedings

The Court noted that the President of Speech First, Nicole Neily, stated the following in a sworn declaration about the Organization’s Members:

[Our members] hold a wide array of different views and opinions on  matters such as politics, race, religion, gender identity, abortion, gun rights,  immigration, foreign affairs, and countless other sensitive and controversial  topics…[They] want to be able to have open and robust intellectual debates and discussion  about these issues in their dormitories, on campus, online, and in the City of  Austin, [but they are] afraid to voice their views out of fear that their speech  may be considered ‘offensive,’ ‘biased,’ ‘rude,’ ‘uncivil,’ or ‘harassing.’…[They] fear that they will be investigated or punished by the University for  engaging in speech or expression that is protected by the First Amendment.

Opinion at 7.

The Court noted that in Speech First’s Complaint it described three (3) students/members of Speech First:

[O]ne student member considers herself a ‘Tea Party conservative,’ ‘strongly supports  Israel, believes in a race-blind society, supports President Trump, is pro-life, and supports the border wall.’ Opinion at 7.

Another student-member ‘strongly supports the Second Amendment right to keep and bear arms, believes in a race-blind society, and has serious concerns that the “Me Too” movement will erode due process.’ He thinks ‘affirmative action should be prohibited and that Justice Brett Kavanaugh was innocent of the accusations made against him and was  properly confirmed to the U.S. Supreme Court.’ Opinion at 7-8.

A third student-member ‘believes that the breakdown of the nuclear family has had many negative effects on society, he is strongly pro-life, he strongly supports the Second Amendment, and he believes that Justice Kavanaugh was treated unfairly during his confirmation proceedings.’

Opinion at 8.

After Speech First filed its Complaint, it sought a Preliminary Injunction to prohibit the University from “‘taking any actions to investigate, threaten, or punish students for  violations of the [allegedly unconstitutional policies]’ and from ‘using the  CCRT to investigate, threaten, or punish students (including informal  punishments) for ‘bias incidents’ or ‘campus climate incidents.'” Opinion at 8.

After a non-evidentiary hearing on the Preliminary Injunction Motion alone, the trial court issued an opinion, dismissing the Complaint for lack of standing on the part of Speech First.

Speech First timely appealed to the Fifth Circuit.

Changes to UT Policy Pending Appeal

During the pendency of the appeal, UT made four amendments to its Policies, including: (1) banning both “hositle or offensive speech” that is “severe, pervasive, or offensive” and banning “hostile or threatening speech” that is “sever, pervasive, and objectively offensive“; (2) eliminating references to “civil” and “[not] rude or harassing correspondence”; (3) eliminating prohibition on “uncivil behaviors and language”; and (4) channeling all allegations of harassment to the Dean of Students.

Notably, UT did not change the CCRT or the Hate & Bias Incidents Policy.

Fifth Circuit Decision

On appeal, UT argued that, because it had made the above changes to its Policies before the case reached the Fifth Circuit, Speech First’s appeal was now moot.

1. Mootness

UT, in addition to citing the new Policy changes, argued that “the University has no plans to, and will not, reenact the former policies.” Opinion at 10.

Generally, a defendant’s voluntary cessation of a challenged activity does not prevent a federal court from examining the legality of the practice, even when a Preliminary Injunction is sought. Moreover, voluntary cessation suggests mootness “only if it is ‘absolutely clear that the allegedly wrongful behavior could not be reasonably expected to recur.” Opinion at 11.

The Fifth Circuit compared the pending case to Speech First, Inc. v. Schlissel, a Sixth Circuit case, where the presumption that the same wrongful conduct was unlikely to recur could be defeated by showing the following:

  1. the absence of a controlling statement of future intention;
  2. the suspicious timing of the change; and
  3. the university’s continued defense of the challenged  policies.

939 F.3d 756, 767–70 (6th Cir. 2019).

The Fifth Circuit noted that (1) the University had not issued a controlling statement of future intention; (2) the time of the University’s Policy Amendments were suspicious; and (3) the University continues to defend the original Policies, despite the amendments.

The Fifth Circuit held that Speech First’s claims were not moot.

2. Standing

Given that Speech First sought a Preliminary Injunction on behalf of its members, Speech First had to demonstrate the following:

  1. its members would otherwise have standing to sue in their own right;
  2. the interests it seeks to protect are germane to the organization’s  purpose; and
  3. neither the claim asserted nor the relief requested requires  the participation of individual members in the lawsuit.

Opinion at 14 (citing Int’l Union, United  Auto., Aerospace & Agr. Implement Workers of Am. v. Brock, 477 U.S. 274, 282, 106 S. Ct. 2523, 2529 (1986) (quoting Hunt v. Wash. State Apple Advert.  Comm’n, 432 U.S. 333, 343, 97 S. Ct. 2434, 2441 (1977))). 

Thus, any member of Speech First must demonstrate standing by showing he or she “(1) suffered an injury in fact; (2) that is fairly traceable to the challenged action of the defendant; and (3) that will likely be redressed by a favorable decision.” Opinion at 15.

Suffered an Injury In Fact

Because members of Speech First wish to engage in robust debate on timely and controversial political issues, which may be “deemed” harassing, rude, uncivil, or offensive, as defined by the University’s Policies, and make these participating students subject to sanctions or investigation under CCRT or the Hate & Bias Incidents Policy, “credible threats of enforcement exist under these policies or through referral from the CCRT.” Opinion at 15.

Speech First argues that its members’ First Amendment Rights have been “chilled” by the risk of adverse application of the above-outlined Policies.

The Fifth Circuit noted that it “has repeatedly held, in the pre-enforcement context, that ‘”[c]hilling a plaintiff’s speech is a constitutional harm adequate to satisfy the  injury-in-fact requirement.”

As argued by Speech First, at least three members intend to argue passionately about open borders, illegal immigrants, the BDS movement to end support for Israel, politics, race, abortion, religion, gender, gun rights, and many other controversial topics.  Speech First argues that students are afraid to voice their opinions out of fear that their speech may violate the University’s Policies, and thus, result in sanctions against the students.

The Fifth Circuit held that Speech First satisfied the first element of standing: injury-in-fact.

Protected Speech Arguably Regulated by the University’s Speech Policies

Here, Speech First had to demonstrate that a members’ constitutionally-protected speech was arguably proscribed by the University.

Although the University argued that the Policies encouraged and protected free speech, the Fifth Circuit found that various and wide-ranging sanctions, along with the vague definition of “verbal harassment” made it “likely that the University’s policies arguably proscribe speech of the sort that Speech First’s  members intend to make.” Opinion at 23.

Thus, the Fifth Circuit held that Speech First met the second element of standing.

Substantial Threat of Future Enforcement

Speech First provided the trial court, and thus the appellate court, with the University’s Public Log of Bias Incident, demonstrating that the Hate & Bias Incidents Policy “has been resorted to countless times regarding hundreds of events since 2012. Significantly, the largest number of reported complaints have been related to Israel and affirmative action.” Opinion at 24. (emphasis added).

Given that one of the members of Speech First intends to speak on these very issues, and given the history and threat of enforcement of the University’s Policies, and related and wide-range of “sanctions”, the Fifth Circuit held that Speech First clearly showed a credible threat of enforcement of these Policies upon its members, stating:

Even more to the point, if there is no history of inappropriate or unconstitutional past enforcement, and no intention to pursue discipline against students under these policies for speech that is protected by the First Amendment, then why maintain the policies at all? At least, why maintain the plethora of potential sanctions? After all, the University regulatory policy for speech, including the Acceptable Use Policy, could have stated succinctly that students will be disciplined, up to and including academic punishment and criminal referral, for speech that is outside the protection of the First  Amendment and, perhaps, Title IX, which covers sexual harassment in  institutions receiving federal funds.

Opinion at 27-28.

The Fifth Circuit further questioned the University’s use of CCRT’s evaluations:

Likewise, insofar as the CCRT’s evaluations of bias incident reports is based on the same definition of verbal harassment, the entire University community has been encouraged to and has funneled into the CCRT hundreds of wide-ranging complaints. Moreover, the CCRT has ‘referred’ a large number of reporting individuals ‘to appropriate sources of support and/or coordinate[d] with a university entity as appropriate.’ The CCRT describes its work, judgmentally, in terms of ‘targets’ and ‘initiators’ of incidents. Further, examples of CCRT responses to reported incidents have included ‘facilitating conversation between those who were targeted by and those who initiated an incident; and making referrals to campus resources such as the UT Austin Police Department, the Office of the Dean of Students, and the Office for  Inclusion and Equity (OIE).’ The CCRT, in some measure, represents the  clenched fist in the velvet glove of student speech regulation.

That the CCRT invites anonymous reports carries particular overtones  of intimidation to students whose views are “outside the mainstream.’ As one expert explains, ‘[i]n both concept and design, such efforts [by “bias response  teams”] to encourage students to anonymously initiate disciplinary  proceedings for perceived acts of bias or to shelter themselves from  disagreeable ideas are likely to subvert free and open inquiry and invite fears of political favoritism.’

Opinion at 28-29.

Once again, the Fifth Circuit held that Speech First met the last element of standing.

3. Decision

Because the merits of Speech First’s Motion for Preliminary Injunction were not considered by the trial court, but now with Speech First’s standing rightly established, the Fifth Circuit Court vacated the trial court’s dismissal and remanded the case back to the district court in light of the Circuit Court’s decision.

My Take

This case is a victory for students, as well as a victory for Free Speech and the First Amendment. University students, typically young adults, should be encouraged to express their ideas and opinions, even if others find their ideas or opinions “offensive”. In today’s climate, if you hold a strong opinion, you are bound to offend someone. Leaders at universities should be encouraging civil discourse and debate, not stifling discussions for those who are “triggered” by opinions that differ from one’s own.

Ultimately, these so-called “Free Speech Policies” do not promote free speech at all. In fact, they quash free speech, specifically the speech of those who hold unpopular views, which on campuses often means conservative views. Creating a “group-think” culture at a university is not profound or noble, it is unjust and destructive. A student’s experience at a university should be one of exploration. Stifling speech, even speech that makes some students uncomfortable, is antithetical to a university’s very mission of helping students grow and develop from adolescence to adulthood.

America needs thoughtful citizens, who can think critically about a variety of issues, and who can engage others with whom they disagree in a deliberate manner. Universities should encourage situations that give students these opportunities, instead of sheltering students from any speech that may make some feel “uncomfortable.” By doing so, universities are doing a disservice to their students and to America, as the citizens they are producing are too fragile and have too high expectations as to what is considered “appropriate speech” when they enter “the real world”.

The university setting is a perfect time to explore different people who hold different ideas. In fact, if universities did a better job encouraging civil discourse and debate between those who passionately hold opposing views, our citizens would be better prepared for the America we find ourselves living in today.

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Leah M. Baldacci, Esq. is Investigations Counsel at the Legal Insurrection Foundation.

 

 
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