U. Central Florida “Discriminatory-Harassment Policy Likely Violates The First Amendment” Rules Federal Appeals Court

U. Central Florida “Discriminatory-Harassment Policy Likely Violates The First Amendment” Rules Federal Appeals Court

The University of Central Florida is not a good place if free and dissident speech is your thing.

We first covered UCF for its abysmal and disgusting treatment of Professor Charles Negy in the midst of the post-George Floyd national purge and cancel frenzy:

• The administrative torment of UCF Prof. Charles Negy
• Prof. Charles Negy: Investigative Report is “UCF’s attempt to justify getting rid of me because I have become a political liability”
• U. Central Florida Fires Dissident Prof. Charles Negy After 8-Month Retaliatory Investigation

At @UCF, we do not tolerate hate speech and must be unequivocally anti-racist in our words, actions and online behavior. Whenever we find discrimination in our community, we will take decisive action to stamp it out. https://t.co/XQvm01exzM

— Dr. Alexander N. Cartwright (@UCFCartwright) June 1, 2020

The UCF abuse of Prof. Negy was part of another lawsuit against UCF we covered, brought by the group Speech First challenging UCF’s expansive “bias” response rule and the chilling effect on free speech, Student Lawsuit: U. Central Florida Treatment of Prof. Charles Negy Chilled Campus Free Speech.

From the Speech First Press Release announcing the lawsuit:

Speech First, a nonprofit membership association working to combat restrictions on free speech and other civil rights at colleges and universities across the United States, filed a lawsuit today against the University of Central Florida — Speech First v. Cartwright et al — in the United States District Court for the Middle District of Florida Orlando Division as part of its efforts to help restore free speech and expression for American college students and reinforce the need for academic discourse in higher education.

Through the use of three policies – the University’s discriminatory harassment policy, its computer policy, and its Just Knights Response Team (JKRT), the school’s version of a bias response team – the University of Central Florida and its administrators have created a series of rules and regulations that restrain, deter, suppress, and punish speech about the political and social issues of the day.

Speech First members at UCF are unable to express themselves and voice their opinions without fear of investigation or punishment. According to the University, “discriminatory harassment” can occur virtually anywhere, at any time, by any medium. Their corresponding policy applies to incidents on campus and to off-campus incidents that have “continuing adverse effects on or create[] a hostile environment for students…” Once a student’s speech is reported, an investigation is launched and that student is subject to disciplinary action.

Speech First has had success challenging similar policies at other universities:

• U. Michigan Settles Lawsuit Challenging Bias Response Teams, Agrees to Changes
• Free Speech Advocacy Group Reaches Settlement With Iowa State
• UT-Austin Dropping Bias Response Teams To Settle Free Speech Lawsuit
• U. Illinois Settles Lawsuit With Free Speech Advocacy Group

And it just won a big victory against UCF in the 11th Circuit Court of Appeals, with a finding that the lower court improperly denied a preliminary injunction.

From the Opinion:

In this appeal from the denial of a request for a preliminary injunction, we are asked to decide whether two speech-related pol-icies promulgated by the University of Central Florida—one that prohibits multiple forms of expression that are deemed to consti-tute “discriminatory harassment” and another that aims to address so-called “bias-related incidents”—likely violate the First Amend-ment. We must also decide, as a threshold matter, whether the plaintiff—an organization called Speech First, Inc.—has standing to challenge the policies’ constitutionality.

We hold (1) that Speech First has standing to sue because the challenged policies chill its members’ speech and (2) that the discriminatory-harassment policy likely violates the First Amendment on the grounds that it is an overbroad and content- and view-point-based regulation of constitutionally protected expression. Because the district court never considered the bias-related-incidents policy’s constitutionality on the merits—having erroneously concluded that Speech First lacked standing to challenge it—we re-mand for a determination of that issue.

The court described the policy, which is similar to policies on many campuses:

So, in sum: The discriminatory-harassment policy prohibits “verbal, physical, electronic, or other conduct” based on a long list of characteristics including, among others, “religion [or] non-reli-gion,” “genetic information,” and “political affiliation[].” The pol-icy applies to any conduct that, for instance, “unreasonably . . . al-ters” another student’s “participation in a university program or activity.” It specifies that discriminatory harassment “may take many forms”—including, broadly, “verbal acts, name-calling, graphic or written statements . . . or other conduct that may be hu-miliating”—and it utilizes a “totality of known circumstances” ap-proach, based on a non-exhaustive list of factors, to determine whether a speaker’s expression satisfies the “unreasonabl[e] . . . al-ter[ation]” standard. Lastly, the policy prohibits students not only from committing the specified acts, but also from “[c]ondoning,” “encouraging,” or even “failing to intervene” to stop them.

Separate from the discriminatory-harassment policy—but seemingly aimed at addressing similar issues—UCF maintains a policy which seeks to prevent and redress what it calls “bias-related incidents.” ….

So again, to sum up: The bias-related-incidents policy cre-ates a mechanism by which a UCF student can be anonymously accused of an act of “hate or bias”—i.e., an “offensive” act, even if “legal” and “unintentional,” that is directed toward another based on any of a number characteristics that echo (but do not precisely mirror) those listed in the discriminatory-harassment policy. The JKRT “monitor[s]” and “track[s]” bias-related incidents, “coordi-nate[s] university resources,” marshals a “comprehensive response[],” and, where necessary, coordinates “interventions” among affected parties.

After finding the Speech First had “standing” to sue, the court concluded that Speech First was likely to prevail on the merits:

We begin with the discriminatory-harassment policy. We conclude that Speech First is substantially likely to establish that the policy is both (1) impermissibly overbroad and (2) a content- and viewpoint-based restriction of speech…

The policy, in short, is staggeringly broad, and any number of statements—some of which are undoubtedly protected by the First Amendment—could qualify for prohibition under its sweeping standards. To take a few obvious examples, the policy targets “verbal, physical, electronic or other conduct” based on “race,” “ethnicity,” “religion [or] non-religion,” “sex,” and “political affilia-tion.” Among the views that Speech First’s members have said they want to advocate are that “abortion is immoral,” that the gov-ernment “should not be able to force religious organizations to rec-ognize marriages with which they disagree,” that “affirmative ac-tion is deeply unfair,” that “a man cannot become a woman be-cause he ‘feels’ like one,” that “illegal immigration is dangerous,” and that “the Palestinian movement is anti-Semitic.” Doc. 30 at 22, 27. Whatever the merits or demerits of those sorts of statements, they seem to us to constitute “core political speech,” with respect to which “First Amendment protection is ‘at its zenith.’” Buckley v. Am. Const. L. Found., Inc., 525 U.S. 182, 183 (1999) (citation omitted)); accord, e.g., McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 347 (1995). Because the discriminatory-harassment policy restricts political advocacy and covers substantially more speech than the First Amendment permits, it is fatally overbroad.

The University’s policy isn’t just overbroad, it’s also an im-permissible content- and viewpoint-based speech restriction—or, at the very least, likely so….

UCF’s discriminatory-harassment policy seems to us both a content- and a viewpoint-based speech restriction. It is content-based because the University must “examine the content of the message that is conveyed to determine whether” it harasses an-other student “based upon” any of a long list of characteristics—e.g., race, sex, political affiliation, etc. McCullen, 573 U.S. at 479. Because the policy is a content-based restriction, it must satisfy strict scrutiny, and we doubt it can. Although the University may have a compelling interest in preventing students from disrupting its educational environment, its policy doesn’t seem to us to be narrowly tailored to that end.

In any event, the discriminatory-harassment policy likely goes beyond content-discrimination to discriminate on the basis of viewpoint. Even within the category of harassing speech, UCF pro-hibits only speech that is “discriminatory.” To borrow the Su-preme Court’s recent observation about similarly loaded terms in one of the Lanham Act’s trademark registration provisions, which it found impermissibly viewpoint-based, “[t]he meaning[] of” the word “discriminatory” is “not mysterious”—it connotes speech that denigrates rather than validates certain characteristics. Iancu, 139 S. Ct. at 2299. Here, as there, “resort to [the] dictionaries,” id., confirms that commonsense conclusion. See, e.g., Discriminatory, Oxford English Dictionary (online ed.) (“That treats a person or group in an unjust or prejudicial manner.”). In prohibiting only one perspective, UCF targets “particular views taken by” students, Rosenberger, 515 U.S. at 829, and thereby chooses winners and los-ers in the marketplace of ideas—which it may not do.

The court opined on the purposes of universities, language that is aspirational but will fall on deaf ears at places like UCF administrative offices:

Nowhere is free speech more important than in our leading institutions of higher learning. Colleges and universities serve as the founts of—and the testing grounds for—new ideas. Their chief mission is to equip students to examine arguments critically and, perhaps even more importantly, to prepare young citizens to participate in the civic and political life of our democratic republic.

Donations tax deductible
to the full extent allowed by law.