Filed: Oct. 30, 2020
Latest Update: Oct. 31, 2020
Summary: Case: 19-50529 Document: 00515621737 Page: 1 Date Filed: 10/30/2020 REVISED October 30, 2020 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 19-50529 FILED October 28, 2020 Lyle W. Cayce SPEECH FIRST, INCORPORATED, Clerk Plaintiff - Appellant v. GREGORY L. FENVES, In His Official Capacity as President of the University of Texas at Austin, Defendant - Appellee Appeal from the United States District Court for the Western District of Texa
Summary: Case: 19-50529 Document: 00515621737 Page: 1 Date Filed: 10/30/2020 REVISED October 30, 2020 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 19-50529 FILED October 28, 2020 Lyle W. Cayce SPEECH FIRST, INCORPORATED, Clerk Plaintiff - Appellant v. GREGORY L. FENVES, In His Official Capacity as President of the University of Texas at Austin, Defendant - Appellee Appeal from the United States District Court for the Western District of Texas..
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Case: 19-50529 Document: 00515621737 Page: 1 Date Filed: 10/30/2020
REVISED October 30, 2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 19-50529 FILED
October 28, 2020
Lyle W. Cayce
SPEECH FIRST, INCORPORATED, Clerk
Plaintiff - Appellant
v.
GREGORY L. FENVES, In His Official Capacity as
President of the University of Texas at Austin,
Defendant - Appellee
Appeal from the United States District Court
for the Western District of Texas
Before KING, JONES, and COSTA, Circuit Judges. 1
EDITH H. JONES, Circuit Judge:
On behalf of a group of students, Speech First, Inc., appeals the dismissal
of its First and Fourteenth Amendment challenges to several policies that
intend to regulate speech at the University of Texas at Austin. After Speech
First sought a preliminary injunction against enforcement of these policies,
and the University responded, the district court dismissed the case on the basis
that Speech First lacked standing. This conclusion was mistaken. The chilling
effect of allegedly vague regulations, coupled with a range of potential
1 Judge Costa concurs in the judgment.
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penalties for violating the regulations, was, as other courts have held, 2
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)).
BACKGROUND
Speech First, Inc., (“Speech First”) is an organization of free-speech
advocates that includes students at the University of Texas at Austin (“the
University”). Speech First sued the Defendant-Appellee, Gregory L. Fenves,
in his official capacity as president of the University, in December 2018. At
that time, the University had promulgated four policies governing students’
speech: (1) the 2018-2019 General Information Catalog, Appendix C,
Institutional Rules on Students Services and Activities; (2) the Acceptable Use
Policy for University Students (last revised in 2015); (3) the 2018-2019
Residence Hall Manual; and (4) the Handbook of Operating Procedures
(revised no later than March 2017). Here are the pertinent portions of the
regulations.
1. The Institutional Rules
Fenves describes the Institutional Rules as “bedrock standards to which
all University community members must adhere.” The Rules’ Chapter 13 is
titled “Speech, Expression, and Assembly,” and begins generally, declaring the
“freedoms of speech, expression, and assembly” to be “fundamental rights of all
persons.” Section 13-101. This section pronounces students’ (and others’)
freedom to “express their views . . . on any topic . . . subject only to rules
2 See, e.g., Dambrot v. Central Mich. Univ., 55 F.3d 1177, 1182 (6th Cir. 1995)
(affirming that campus discriminatory harassment speech policy is, on its face,
unconstitutionally overbroad and vague, after district court found that students had standing
to sue despite lack of enforcement against them).
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necessary to preserve the equal rights of others and the other functions of the
University.” The section disclaims viewpoint discrimination “[e]xcept as
expressly authorized by subchapter 13-200 [titled, “Prohibited Expression”].
In the next subchapter, “Prohibited Expression” includes paragraphs
covering obscenity, defamation, and incitement to imminent violations of law.
By far the longest prohibition covers “Harassment,” which is the “mak[ing],
distribut[ing], or display[ing] on the campus any statement that constitutes
verbal harassment of another.” “Verbal harassment” is defined as “hostile or
offensive speech, oral, written, or symbolic,” that:
A. is not necessary to the expression of any idea described in the
following subsection [“an argument for or against the substance
of any political, religious, philosophical, ideological, or academic
idea is not verbal harassment even if some listeners are
offended by the argument or idea”];
B. is sufficiently severe, pervasive, or persistent to create an
objectively hostile environment that interferes with or
diminishes the victim’s ability to participate in or benefit from
the services, activities, or privileges provided by the University;
and
C. personally describes or is personally directed to one or more
specific individuals.
The Rules elaborate that “[v]erbal harassment may consist of threats,
insults, epithets, ridicule, [and] personal attacks,” and “is often based on the
victim’s appearance, personal characteristics, or group membership, including
but not limited to race, color, religion, national origin, gender, age, disability,
citizenship, veteran status, sexual orientation, gender identity or gender
expression, ideology, political views, or political affiliation.”
Under the Rules, the Dean of Students has primary authority and
responsibility for the administration of student discipline, but other University
actors play various roles in responding to particular types of alleged violations.
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Disciplinary sanctions range from written warning to suspension, expulsion,
and the denial of a degree.
2. Acceptable Use Policy
The Acceptable Use Policy outlines permitted and prohibited uses of the
information technology devices and systems provided and maintained by the
University. Under the Policy “[a]ll university students granted access to or use
of university Information Resources must be aware of and agree to abide by
[certain] acceptable use requirements.” Among these “requirements” is:
5.6 Be civil. Do not send rude or harassing correspondence.
1. If someone asks you to stop communicating with him or her, you
should. If you fail to do so, the person can file a complaint and you
can be disciplined.
2. If you ever feel that you are being harassed, university staff
members will assist you in filing a complaint. . . .
“The authoritative source on [the Acceptable Use Policy] and
responsibility for its implementation rests with the Office of the Associate Vice
President and Chief Information Officer,” although other offices may be
involved in discipline relating to the requirements. The Policy provides a non-
exhaustive list of “[p]unishment[s] for infractions of [the requirements],”
ranging from “[v]erbal warnings” to “[s]uspension from the university” or
“[c]riminal prosecution.” The Policy notes that suspension from the University
happens to “several people each semester.”
On the other hand, the Policy notes, “In general, expressions of opinion
by members of the university community that do not otherwise violate state
and federal laws or university rules are protected as ‘free speech.’” Also:
“Disagreements between people, even heated arguments, unless threatening
or otherwise unlawful, are not considered violations. UT Austin does, however,
strongly encourage all its users to be polite and courteous.”
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3. Residence Hall Manual
The “Personal Responsibility and Student Conduct” section of the
Residence Hall Manual includes sections on “Harassment” and “Incivility.”
Under “Harassment,” the University states a policy “to maintain an
educational environment free from harassment and intimidation” and states a
related “commit[ment] to responding appropriately to acts of racism, sexism,
heterosexism, cissexism, ageism, ableism, and any other force that seeks to
suppress another individual or group of individuals.” “When acts of
harassment or intimidation occur in the residence hall environment, the
Residence Life staff, in conjunction with the Residence Hall Council, may lead
a floor or hall meeting to discuss the incident and decide, as a community,
appropriate steps that need to be taken to address the incident.” More
generally, “[r]esidents who are suspected to have engaged in harassment as
defined in the Institutional Rules will be referred to the Dean of Students for
possible disciplinary action.”
Immediately following, under “Incivility,” the University states:
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.
At the end of the “Personal Responsibility and Student Conduct” section,
there is a subsection on the “Conduct Process,” which explains the process for
“cases that remain in Housing for adjudication.” This process may result in
“Housing Sanctions,” which are “educational measure[s] implemented by the
Housing Conduct Board or Residence Hall Conduct Administrator designed to
affect [sic] a change in behavior and to help the student understand how their
behavior impacted others in the residence hall community.” “Sanctions” might
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include “loss of privileges,” “assign[ments]” such as “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.
4. Hate and Bias Incidents Policy and CCRT
Finally, within the University’s Handbook of operating procedures is the
“Hate and Bias Incidents” policy. According to its “Policy Statement,” the
University “unequivocally condemns and prohibits . . . harassment,” “is
committed to an academic and work environment free from acts of intolerance,
hate, bias or prejudice,” and “is committed to the principles of free inquiry and
expression and is dedicated to creating an environment where the expansion
of knowledge and the freedom to exchange ideas is safeguarded.”
The Hate and Bias Incidents policy describes verbal harassment in the
same language as the Institutional Rules. It specifies that individuals may
report threatened or actual “harassment” to the Office of the Dean of Students
or the Office of Inclusion and Equity.
The policy’s “Responsibilities & Procedures” section includes a “Campus
Climate Incident” subsection, which states:
The University strongly encourages individuals who believe they
have been discriminated against or have experienced threatened
or actual violence on the basis of their race, color, religion, national
origin, gender, gender identity or gender expression, age,
disability, citizenship, veteran status, sexual orientation, ideology,
political views, or political affiliation to report such incidents as
provided in this policy.
Individuals may report a campus climate incident to the
University’s Campus Climate Response Team by clicking on the
“Report a Bias Incident Campus Climate Response Team” button
. . . . Individuals may report concerns such as a student
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organization hosting a party with a racist theme, derogatory
graffiti regarding sexual orientation or gender identity and
expression, malicious threats that intimidate another person
because of his or her religion or concerns that someone has created
a hostile or offensive classroom environment.
The Campus Climate Response Team (“CCRT”) was instituted in 2011
after an investigation into whether the university’s dispute resolution
procedures were sufficient to handle outbreaks of “hateful or violent speech.”
The CCRT is described as “a university-wide strategy resource team that
develops and facilitates the implementation of appropriate responses to
campus climate incidents impacting the UT Austin community.” “[C]ore
functions” of the CCRT include “[g]athering information and managing the
specific incident,” “[s]upporting individuals involved in an incident,”
“[i]dentifying and connecting with appropriate support services,” “[e]valuating
the response process post incident,” and “[c]oordinating, when appropriate,
activities with other campus-wide entities, especially those involved with crisis
management.” Last, the University hopes that “through the work of the CCRT,
potential gaps in UT Austin policies and procedures that may impede the
university’s ability to minimize campus climate incidents may be addressed.”
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
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provide “support and information to student(s), staff or faculty who initiated
the incident.”
Following the provision relating to the CCRT, the Hate and Bias
Incidents Policy (re)authorizes the sanctions listed in the Institutional Rules
and assures that “a discriminatory purpose will be treated as an aggravating
factor for the purpose of determining the appropriate sanction(s).”
District Court Proceedings
Speech First challenged all of these policies on their face. Nicole Neily,
the president of Speech First, stated in a sworn declaration that the
organization’s 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.” She stated further that Speech First’s members at the University
“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.’” That is,
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.”
In its complaint, Speech First described more specifically the views of its
student-members at the University. For example, it stated that one 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.” 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
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Brett Kavanaugh was innocent of the accusations made against him and was
properly confirmed to the U.S. Supreme Court.” 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.”
Speech First sought a declaratory judgment that “the University’s
prohibition on ‘verbal harassment,’’’ its “prohibitions on incivility, rudeness,
and harassment in section 5.6 of the Acceptable Use Policy,” and its
“prohibitions on harassment, intimidation, and incivility in the Residence Hall
Manual” violate the First and Fourteenth Amendments. It also sought a
declaratory judgment that “the CCRT and its prohibitions on ‘bias incidents’
and ‘campus climate incidents’ violate the First and Fourteenth Amendments.”
Speech First sought a permanent injunction prohibiting University officials
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.’”
Soon after filing its complaint, Speech First moved for a preliminary
injunction against enforcement of the challenged policies and against use of
the CCRT to investigate, log, threaten, or punish students for bias incidents.
The University opposed the motion and attached declarations from a number
of University officials. The court convened a non-evidentiary hearing directed
at the preliminary injunction motion alone.
A couple months later, the court issued an opinion dismissing Speech
First’s case for lack of standing. The court ruled that Speech First had failed
to present “specific evidence of the speech in which the students wish to
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engage,” leaving the court unable to determine whether the students “have an
intention to engage in speech that is prohibited or arguably covered by the
challenged policies.” The court discerned “no evidence that any University
students . . . have been disciplined, sanctioned, or investigated for their
speech,” and thus no “credible threat of enforcement of the challenged policies.”
Concluding that Speech First failed to make a clear showing of standing and
thus lacked standing to sue, the court not only denied the preliminary
injunction but dismissed the case.
Speech First filed its timely notice of appeal on June 6, 2019. Numerous
amici filed briefs in support of Speech First. Unexpectedly, in August, pending
appeal, the University amended its policies. First, it changed the prohibition
on harassment in the Institutional Rules from banning “hostile or offensive
speech” that is “severe, pervasive, or offensive” to banning “hostile or
threatening” speech that is “severe, pervasive, and objectively offensive”
(emphasis added). Second, the University eliminated the Acceptable Use
Policy’s references to “civil” and “[not] rude or harassing correspondence.”
Third, the University eliminated the Residence Hall Manual’s prohibition on
“uncivil behaviors and language” and redefined the Manual’s harassment rule
to match strictly the Institutional Rules. See The University of Texas at
Austin, 2019 - 2020 Residence Hall Manual 16 (Aug. 29, 2019),
https://housing.utexas.edu/sites/default/files
/ResidenceHallManual_ 10182019.pdf. Fourth, the University changed the
Manual’s disciplinary process for harassment in order to channel all
allegations of harassment directly to the Dean of Students, thus eliminating
the separate Housing disciplinary process. See id.
The University did not change either the CCRT or the Hate and Bias
Incidents Policy, according to which the University continues to “unequivocally
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condemn[] and prohibit[] . . . harassment,” defined as “hostile or offensive
speech” that is “sufficiently severe, pervasive, or offensive so as to interfere
with an individual or group’s academic or work performance, or to create a
hostile work or academic environment.” The University of Texas at Austin,
Hate and Bias Incidents Policy (Mar 8, 2017),
https://policies.utexas.edu/policies/hate-and-bias-incidents. The policy
remains enforceable as originally written. Students are “strongly
encourage[d]” to report such speech to the CCRT. Id.
DISCUSSION
On appeal, Speech First seeks, at least, to reverse the district court’s
dismissal for lack of standing. The University supports dismissal, but also
contends that its policy amendments render moot appellant’s challenges to the
original policies. We start with mootness.
I. Mootness
Because “the University consolidated and revised its policies governing
expressive activities in time for the 2019–20 school year,” Fenves contends,
“Speech First’s challenges to the Use Policy and Residence Hall Manual are
focused exclusively on language that was eliminated by the University’s recent
revisions.” In addition to touting the changes, Fenves’s brief states that “the
University has no plans to, and will not, reenact the former policies.” As a
result, Speech First’s challenges to the original versions of the Institutional
Rules, Use Policy, and Residence Hall Manual have allegedly become moot.
In general, “‘a defendant’s voluntary cessation of a challenged practice
does not deprive a federal court of its power to determine the legality of the
practice,’ even in cases in which injunctive relief is sought.” Meza v.
Livingston, 607 F.3d 392, 399–400 (5th Cir. 2010) (quoting City of Mesquite v.
Aladdin’s Castle, Inc.,
455 U.S. 283, 289,
102 S. Ct. 1070, 1074 (1982)). That
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general rule is not absolute, but “[v]oluntary cessation of challenged conduct”
moots a case “only if it is ‘absolutely clear that the allegedly wrongful behavior
could not be reasonably expected to recur.’” Adarand Constructors, Inc. v.
Slater, 528 U.S. 216, 222,
120 S. Ct. 722, 725 (2000) (quoting United States v.
Concentrated Phosphate Exp. Ass’n,
393 U.S. 199, 203,
89 S. Ct. 361, 364
(1968)).
In some cases this court has “treat[ed] a voluntary governmental
cessation of possibly wrongful conduct with some solicitude,” Sossamon v. Lone
Star State of Texas, 560 F.3d 316, 325 (5th Cir. 2009), aff’d sub nom. Sossamon
v. Texas,
563 U.S. 277,
131 S. Ct. 1651 (2011), but this relaxed standard has
not been applied to voluntary cessation by a public university. We do not adopt
the relaxed standard, but assume its applicability arguendo for purposes of
this case.
Even applying “some solicitude,” however, the continuing existence of
the unaltered definition of “harassment” in the Hate and Bias Incidents Policy
does not make it “absolutely clear” that the University will not reinstate its
original policies. After all, that Policy maintains the exact definition of
harassment that was eliminated from the Institutional Rules. Of course, the
University could reconcile the contradictory policies by revising the Hate and
Bias Incidents Policy to align with the newly fashioned Institutional Rules, but
it could easily reconcile them in the opposite way. On that basis alone, the
partial voluntary cessation does not moot this case.
Mootness by voluntary cessation is further inadvisable to avoid a circuit
split. This is not the first appeal in which a public university has had a sudden
change of heart, during litigation, about the overbreadth and vagueness of its
speech code, and then advocated mootness under a relaxed standard. In
Speech First, Inc. v. Schlissel, the Sixth Circuit considered the alleged
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mootness of challenges to speech codes at the University of Michigan. 939 F.3d
756, 767–70 (6th Cir. 2019). The Schlissel court “presume[d] that the same
allegedly wrongful conduct by the government is unlikely to recur.”
Id. at 767.
Yet the Sixth Circuit held that presumption defeated for three reasons: (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.
Id. at 769–70. Following Schlissel, this case is not moot.
To the first point, the University has not issued a controlling statement
of future intention. Of course, Fenves, in his official capacity, represents in his
brief that “[t]he University has no plans to, and will not, reenact the former
policies.” Schlissel, in contrast, reviewed sworn testimony to determine
whether “the University has . . . affirmatively stated that it does not intend to
reenact the challenged definitions.” 939 F.3d at 769. The University advances
no such sworn affirmative statement here. Schlissel looked to “evidence in the
record that [the person making a statement] . . . has control over whether the
University will reimplement the challenged definitions.” There is no evidence
here that Fenves controls whether the University will restore the challenged
definitions during or after his tenure. Cf. United States v. Atkins,
323 F.2d
733, 739 (5th Cir. 1963); ACLU v. Fla. Bar,
999 F.2d 1486, 1494 (11th Cir.
1993). Indeed, the newly made policy amendments are being submitted to the
Board of Regents for consideration sometime this year. 3 Thus, Fenves’s
statements in brief are not a controlling statement of future intention.
3Cf. N.Y. State Rifle & Pistol Ass’n v. City of New York, No. 18-280, 2020 WL 1978708,
at *1 (U.S. Apr. 27, 2020) (mootness resulted when City exercised its formal legislative
powers to change an ordinance and “the State enacted a law making the old New York City
ordinance illegal,”
id. at *2 (Alito, J., dissenting)).
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Second, the timing of the University’s policy amendments is at least as
suspicious as was the timing of the changes in Schlissel. In that case, the
university changed its policies after the complaint was filed, albeit as part of a
review process that preceded litigation. 939 F.3d at 769. In this case, the
University did not commence review, much less change its policies, until after
the district court decision. The changes were first announced only in the
University’s appellate brief. Cf. Knox v. SEIU,
567 U.S. 298, 307,
132 S. Ct.
2277, 2287 (2012) (“[M]aneuvers designed to insulate a decision from review
by this Court must be viewed with a critical eye.”). The University does not
“explain the expedient timing of the [policies’] removal.”
Schlissel, 939 F.3d at
770.
Finally, Fenves continues to defend the original policies originally as it
did in the district court. His brief states, “The plain text of the challenged
policies makes clear that none of the challenged policies . . . prohibits any
constitutionally protected speech in general, and the types of speech in which
Speech First’s members wish to engage in particular.” (emphasis added).
Although the points that follow extend to all the University provisions, original
and amended, the University’s definitions of arguably protected conduct and
the alleged lack of a history of past enforcement necessarily involve the pre-
existing policies. As in Schlissel, the University is still defending the legality
of its original policies.
Even if Schlissel required all three bases of its ruling to preclude
mootness, 4 all of them obtain here. Accordingly, even under Schlissel’s relaxed
presumption in favor of a university’s voluntary cessation (which we apply only
4Cf. DeJohn v. Temple Univ., 537 F.3d 301, 311 (3d Cir. 2008) (rejecting mootness by
voluntary cessation after considering only the timing of a policy change and continued
defense of contested policy).
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arguendo), Fenves has not shown an absolute certainty that the original
provisions of its Institution Rules, Acceptable Use Policy, and Residence Hall
Manual will not be reinstituted. Nor has Fenves even alleged mootness
regarding the CCRT. Speech First’s challenges are not moot.
II. Standing
A preliminary injunction, like final relief, cannot be requested by a
plaintiff who lacks standing to sue. At earlier stages of litigation, however, the
manner and degree of evidence required to show standing is less than at later
stages. See Lujan v. Def’s of Wildlife, 504 U.S. 555, 561,
112 S. Ct. 2130 (1992)
(“each element [of standing] must be supported . . . with the manner and
degree of evidence required at the successive stages of the litigation”). At the
preliminary injunction stage, the movant must clearly show only that each
element of standing is likely to obtain in the case at hand. Compare Barber v.
Bryant,
860 F.3d 345, 352 (5th Cir. 2017), with Pendergest-Holt v. Certain
Underwriters at Lloyd’s of London,
600 F.3d 562, 568–69 (5th Cir. 2010); see
also Waskul v. Washtenaw Cty. Cmty. Mental Health,
900 F.3d 250, 256 n.4
(6th Cir. 2018); Food & Water Watch, Inc. v. Vilsack,
808 F.3d 905, 913 (D.C.
Cir. 2015).
Because Speech First seeks a preliminary injunction on behalf of its
members, it must clearly show that it likely has associational standing to bring
its case on the merits. Speech First satisfies that requirement if it shows a
likelihood that “(a) its members would otherwise have standing to sue in their
own right; (b) the interests it seeks to protect are germane to the organization’s
purpose; and (c) neither the claim asserted nor the relief requested requires
the participation of individual members in the lawsuit.” Int’l Union, United
Auto., Aerospace & Agr. Implement Workers of Am. v. Brock, 477 U.S. 274, 282,
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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)).
The only one of those criteria disputed here is whether it is likely that
any of Speech First’s members would have standing to sue in his own right. 5
To have standing, a plaintiff must (1) have 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. Lujan v. Def’s of Wildlife, 504 U.S.
555, 560–61,
112 S. Ct. 2130 (1992).
A plaintiff has suffered an injury in fact if he (1) has an “intention to
engage in a course of conduct arguably affected with a constitutional interest,”
(2) his intended future conduct is “arguably . . . proscribed by [the policy in
question],” and (3) “the threat of future enforcement of the [challenged policies]
is substantial.” See Susan B. Anthony List, 573 U.S. at 161–64, 134 S. Ct. at
2343–45. For purposes of a preliminary junction, Speech First must clearly
show a likelihood that at least one of its members suffered such an injury.
The gravamen of Speech First’s claims is that its student-members wish
to engage in robust debate on timely and controversial political topics from a
contrarian point of view. Because their views do not mirror those of many on
campus, their speech may be deemed “harassment,” “rude,” “uncivil,” or
“offensive,” as those terms are defined in the University’s policies. Their
speech may also credibly run afoul of the Hate and Bias Incidents Policy and
may be investigated by the CCRT. Either way, credible threats of enforcement
exist under these policies or through referral from the CCRT. Alleging a facial
5The latter two elements of associational standing are uncontested. Speech First’s
purpose is “to preserv[e] civil rights secured by law, including the freedom of speech
guaranteed by the First Amendment to the U.S. Constitution,” especially for the sake of
“students and others at colleges and universities, through litigation and other lawful means.”
The student speech interests are germane to its purpose, and neither the claims nor the relief
sought require the participation of individual members in the lawsuit.
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challenge to these rules, Speech First insists that its members’ First
Amendment rights have been chilled, their speech deterred, by the prospect of
adverse application of the policies.
This court 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.” Houston Chronicle v. City of League City, 488 F.3d
613, 618 (5th Cir. 2007). See also Freedom Path, Inc. v. I.R.S.,
913 F.3d 503,
507 (5th Cir. 2019) (same); Fairchild v. Liberty ISD,
597 F.3d 747, 754–55 (5th
Cir. 2010) (same); Ctr. for Individual Freedom v. Carmouche,
449 F.3d 655,
660 (5th Cir. 2010) (same) (“As the district court noted, ‘[t]he First Amendment
challenge has unique standing issues because of the chilling effect, self-
censorship, and in fact the very special nature of political speech itself.’”). 6 It
is not hard to sustain standing for a pre-enforcement challenge in the highly
sensitive area of public regulations governing bedrock political speech.
A. Intention to Engage in Protected Conduct
Concerning the first criterion enunciated in Susan B. Anthony List,
Fenves attempts only in a footnote to defend the district court’s erroneous
conclusion that Speech First did not adequately support its members’
intentions to engage in speech protected by the First Amendment. Speech
First’s complaint alleged that one of its student-members at the University
“wants to engage in open and robust intellectual debate with her fellow
students” about, for example, “open borders and the protection of illegal
immigrants,” “the BDS movement to end support for Israel,” and opposition to
6 Other circuits concur. See, e.g., Ariz. Right to Life PAC v. Bayless, 320 F.3d 1002,
1006 (9th Cir. 2003) (plaintiff forced to modify political behavior had standing); Majors v.
Abell,
317 F.3d 719, 721 (7th Cir. 2003) (if statute “arguably covers” plaintiff’s speech, “and
so may deter constitutionally protected expression . . . , there is standing”) (citing Virginia v.
Am. Booksellers’ Ass’n, Inc.,
484 U.S. 383, at 392–93 (1988)).
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“the President.” This student “wants to speak passionately and forcefully
about these issues” and wants to point out the flaws in her fellow students’
arguments and encourage her fellow students to change their minds.” Speech
First alleges that two more student-members have similar, and similarly
concrete, plans. These allegations and others were supported by the Neily
Declaration. 7 According to that sworn statement, “Speech First has a number
of members who are current students at the University of Texas at Austin.”
Further, the association’s members at the University wish to engage in debates
and discussions covering “a wide array of different views on matters such as
politics, race, religion, gender identity, abortion, gun rights, immigration,
foreign affairs, and countless other sensitive and controversial topics.” The
Neily Declaration avers that students “are afraid to voice their views out of
fear that their speech” may violate University policies. For purposes of a
preliminary injunction, the Declaration substantiates the allegations raised in
the complaint, and Fenves suggests no grounds to doubt its veracity. 8
It is at least likely, therefore, that Speech First’s three student-members
at the University have an intention to engage in a certain course of conduct,
7 In this way, Speech First differs from the plaintiffs in National Federation of the
Blind of Texas, Inc. v. Abbott, a case cited by the district court. In that case, “the stipulated
facts [were] silent” as to whether the plaintiffs intended to engage in the relevant activity.
647 F.3d 202, 209 (5th Cir. 2011). Speech First alleges, however, with support in the record,
its members’ direct intention to engage in the particular activity that it alleges to be arguably
regulated by the challenged provisions.
8 Contrast that with two cases cited by the district court. In Mississippi State
Democratic Party v. Barbour, a political party declared an intention to hold a closed primary
for the first time ever, without support in the record, without having adopted any policy or
taken any vote on the matter, and without having pursued necessary preclearance from the
Department of Justice to hold such a primary. 529 F.3d 538, 545 (2008). That dubiously
alleged group intention bears no resemblance to the uncontested individual intention alleged
and supported here. And in Zimmerman v. City of Austin, the candidate who challenged
municipal campaign funding restrictions had no demonstrated intention whatsoever to
accept donations exceeding the limits.
881 F.3d 378, 382 (5th Cir. 2018).
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namely political speech. Moreover, “[b]ecause [their] intended future conduct
concerns political speech, it is certainly ‘affected with a constitutional
interest.’” Susan B. Anthony List, 573 U.S. at 162, 134 S. Ct. at 2344. Speech
First satisfies the first element of injury-in-fact.
B. Arguably Proscribed
Next, Speech First must clearly show a likelihood that its members’
constitutionally protected speech is arguably proscribed, or at least arguably
regulated, by the University speech policies. See id.; Laird v. Tatum, 408 U.S.
1, 11,
92 S. Ct. 2318, 2324 (1972) (“[C]onstitutional violations may arise from
the deterrent, or ‘chilling,’ effect of governmental regulations that fall short of
a direct prohibition against the exercise of First Amendment rights.”); see also
Schlissel, 939 F.3d at 764–65.
As has been noted, Speech First members plan to engage the University
community in debate encompassing a broad array of controversial political
topics. Comparably broad, however, are the categories of speech arguably
covered by the University’s Institutional Rule on “verbal harassment,” the
Acceptable Use Policy’s requirement to be “civil” and not to send “rude”
correspondence, the Residence Hall Manual proscriptions of “harassment,”
“intimidation,” and “incivility,” and the Hate and Bias Incidents policies
against “bias incident[s]” and “campus climate incident[s].” Terms like
“harassment,” “intimidation,” “rude,” “incivility,” and “bias” beg for
clarification. 9 These pejoratives arguably cover the plaintiffs’ intended speech.
Adding credibility to their argument, the University itself eliminated or
materially altered the challenged definitions—pending appeal. It is far-
9 Similar terms have in fact been declared overbroad and vague when embedded in
speech policies at other universities. See, e.g., Dambrot, 55 F.3d at 1182–84.
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fetched to suppose that the policies were amended in a relevant way absent
any likelihood that they arguably covered Speech First’s members’ speech.
Undeterred, Fenves argues the policies have no bearing on the students’
speech. He denies that any speech at all is “arguably proscribed” except by the
Institutional Rules. 10 Ostensibly, the other speech regulations must be
precatory, not sanctionable. In addition, he commends the policies’ provisions
that declare the value of free speech and argumentation.
First, even assuming that actual proscription is necessary, contra Laird,
408 U.S. at 11, 92 S. Ct. at 2324;
Schlissel, 939 F.3d at 764–65, the
Institutional Rules are not the exclusive vehicle for imposing speech penalties.
The Acceptable Use Policy lists “punitive sanctions,” all the way up to “criminal
prosecution.” The Residential Hall Manual threatens, in addition to referral
to the Dean of Students for punishment under the Institutional Rules,
independent Housing sanctions for violating the Manual’s rules. Such
sanctions include compelled participation in educational modules, paper-
writing, and presentations, as well as room reassignment and more. Finally,
the Hate and Bias Incidents Policy provides for “Interim Measures and Final
Sanctions,” including suspension from campus, residence hall, or classes—or
any of the sanctions authorized in the Institutional Rules.
It is uncontradicted, to be sure, that “the Dean of Students testified that
‘[s]tudent discipline is administered only for violations of the Institutional
10 Parroting the district court, Fenves also contends that the “relevant inquiry is
whether the policy actually prohibits the speech in question—not whether some might
mistakenly believe it does.” This is wrong. Under Susan B. Anthony List, the question is
simply whether speech is “arguably . . . proscribed by” the challenged policies.” 573 U.S. at
162, 134 S. Ct. at 2344; see also Babbitt v. United Farm Workers Nat’l Union,
442 U.S. 289,
298,
99 S. Ct. 2301, 2309 (1979). Even though a plaintiff does not intend to violate a policy,
the policy’s language may still be claimed to fall within the statutory regulation, e.g., of “false”
statements, and the plaintiff may thus have standing. 573 U.S. at
163, 134 S. Ct. at 2344–
45.
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Rules.’” Nevertheless, in light of the plain language concerning sanctions in
all of the challenged policies, the Dean appears to have testified as to
definition, indicating that “student discipline” is the University’s name only for
what follows from violations of the Institutional Rules. In contrast, sanctions
described in the Residence Hall Manual, for example, are not “student
discipline” but rather “educational measure[s] implemented by the Housing
Conduct Board or Residence Hall Conduct Administrator designed to affect
[sic] a change in behavior and to help the student understand how their
behavior impacted others in the residence hall community.” The Dean and
University are entitled to their own definitions, but their nomenclature does
not alter reality and does not contradict the proscriptive nature of the policies.
Nor is it tenable, as the district court found, that the CCRT “does not
engage in investigations or punishment of any sort.” The implicit suggestion
here is that, insofar as the Hate and Bias Incidents Policy is enforced by the
CCRT, it is not sufficiently proscriptive. This point fails under Schlissel. In
that case, the court “recognize[d] that [the University of Michigan’s Bias
Response Team] lacks any disciplinary power and that bias incidents are not
directly punishable.” 939 F.3d at 765. Nevertheless, it found that “[t]he
Response Team’s ability to make referrals—i.e., to inform [the Office of Student
Conflict Resolution] or the police about reported conduct—is a real
consequence that objectively chills speech.”
Id. So, too, when the “CCRT
determines there is a possible violation of the university’s [Institutional Rules]
or policies outlined in the General Information Catalog, [the] CCRT refers the
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incident to the appropriate entity.” Under Schlissel, a policy thus enforced is
sufficiently proscriptive to objectively chill student speech. 11
Fenves ultimately wraps the University in the flag of its policies’ paeans
to the freedom of speech. According to Fenves, “the University’s policies
expressly protect and encourage [the speech at issue].” Without exception, he
contends, the Institutional Rules, Acceptable Use Policy, and Residence Hall
Manual, respectively, exclude arguments about ideas from “verbal
harassment,” affirm the “great value of freedom of thought and expression,”
and “encourage all members of [the University’s] community to support the
freedom of speech.”
Examined more closely, however, none of these statements detracts from
the likelihood that the University’s policies arguably cover Speech First’s
members’ intended speech. First, the Residence Hall Manual’s
“encourage[ment]” of the freedom of speech does not appear in the sections on
“Harassment” and “Incivility,” nor anywhere in the chapter on “Personal
Responsibility and Student Conduct.” Instead, it appears in a subsection of
the Guidelines on “Posters,” where freedom of speech is qualified by
admonishments to “respect the mission and value[] . . . [of] providing all
residents with a ‘comfortable, friendly environment’ and ‘sense of community’”
and to “not engage in gratuitously offensive expression.” Second, the
Acceptable Use Policy states that “[w]e do not punish or prevent expression
that . . . violates no specific law or university regulation” and that “[i]n general,
expressions of opinion by members of the university community that do not
otherwise violate state and federal laws or university rules are protected as
11Accordingly, we need not consider, for example, Speech First’s suggestion that the
CCRT’s public logging of incidents in a manner easily identifiable by members of the
University community also indicates that the Hate and Bias Incidents Policy is proscriptive.
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‘free speech’” (emphasis added). The Residence Hall Manual and Acceptable
Use Policy clearly delimit the freedom of speech by their prohibitions, not the
other way around.
The Institutional Rules, on the other hand, explicitly exclude from
“verbal harassment” the “mak[ing] [of] an argument for or against the
substance of any political, religious, philosophical, ideological, or academic
idea.” Fenves suggests that this phrase “straightforwardly conveys that the
exclusion applies to speech that conveys the substance of an idea” and is
qualified only to discourage expression extraneous to the idea itself. We
disagree. Stated more precisely, the definition is this: “verbal harassment”
includes “hostile or offensive” speech that “is not necessary to the expression
of any idea [defined as “an argument for or against the substance of any
political . . . idea].” 12 Interpreted grammatically, the exclusion applies only to
speech that conveys the substance of an idea and is necessary to such
conveyance. Such a qualified limitation on the scope of the term “verbal
harassment” increases rather than decreases its uncertainty.
In sum, while purporting to invoke free speech, the Institutional Rules
qualify protected speech and fail to cabin the terms “harassment,”
12 Section 13–204(b)(1) and (2) state in full:
1. “Verbal harassment” means hostile or offensive speech, oral, written, or symbolic, that
A. is not necessary to the expression of any idea described in subsection 13–204(b)(2);
B. is sufficiently severe, pervasive, or persistent to create an objectively hostile
environment that interferes with or diminishes the victim’s ability to participate in or
benefit from the services,
activities, or privileges provided by the University; and
C. personally describes or is personally directed to one or more specific individuals.
2. To make an argument for or against the substance of any political, religious, philosophical,
ideological, or academic idea is not verbal harassment, even if some listeners are offended by
the argument or idea. The categories of sexually harassing speech set forth in Policy 3-3031
of the Handbook of Operating Procedures are rarely, if ever, necessary to argue for or against
the substance of any political, religious, philosophical, ideological, or academic idea.
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“intimidation,” “rude[eness],” “incivility,” and “bias.” It is likely that the
University’s policies arguably proscribe speech of the sort that Speech First’s
members intend to make.
C. Substantial Threat of Future Enforcement
The last element of injury in fact, in this context, is whether it is clearly
likely that “the future threat of enforcement of the [challenged policy] is
substantial.” Susan B. Anthony List, 573 U.S. at 164, 134 S. Ct. at 2345. At
this point, “[t]he distinction between facial and as-applied challenges bears
legal significance.” See
Schlissel, 939 F.3d at 766. Whereas “[t]here must be
some evidence that [a] rule would be applied to the plaintiff in order for that
plaintiff to bring an as-applied challenge,” that is not the case for facial
challenges. Id.; accord Carmouche,
449 F.3d 655, 659 (5th Cir. 2006); see also
Google Inc. v. Hood,
822 F.3d 212, 227–28 (5th Cir. 2016) (involving no facial
challenge). Instead, “when dealing with pre-enforcement challenges to
recently enacted (or, at least, non-moribund) statutes that facially restrict
expressive activity by the class to which the plaintiff belongs, courts will
assume a credible threat of prosecution in the absence of compelling contrary
evidence.” N.H. Right to Life PAC v. Gardner,
99 F.3d 8, 15 (1st Cir. 1996);
accord
Carmouche, 449 F.3d at 660; McCauley v. Univ. of the V.I.,
618 F.3d
232, 237–39 (3d Cir. 2010) (determining standing based on policies alone); Ariz.
Right to Life PAC v. Bayless,
320 F.3d 1002, 1006–07 (9th Cir. 2003); Majors v.
Abell,
317 F.3d 719, 721 (7th Cir. 2003); N.C. Right to Life, Inc. v. Bartlett,
168 F.3d 705, 710 (4th Cir. 1999).
The University of Texas members of Speech First plainly belong to a
class arguably facially restricted by the University policies. Not only this,
Speech First has also shown, by producing the University’s public log of bias
incidents, that the Hate and Bias Incidents Policy has been resorted to
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countless times regarding hundreds of events since 2012. Significantly, the
largest numbers of reported complaints have related to Israel and affirmative
action, two topics on which Speech First member Student A, for example,
intends to speak. Such evidence establishes a threat of enforcement, not only
of the Hate and Bias Incidents Policy, but also of the University’s other
intertwined policies. The Hate and Bias Incidents Policy, after all, specifically
refers to the Institutional Rules, as do the CCRT webpage and the Residence
Hall Manual regarding the same issues. In addition, the Institutional Rules
on speech specifically refer to the Acceptable Use Policy for “[r]ules protecting
and regulating speech on University computer networks.” These overlapping
policies strongly suggest that enforcement of one produces a credible threat of
enforcement of the others. Speech First has clearly shown a credible threat of
enforcement of those policies upon its members.
Fenves disagrees with the sufficiency of this showing based on case law
and on “compelling contrary evidence” that belies a credible threat of
prosecution. The district court focused on the proffered declarations of
University officials that no sanctions had been imposed for violating the
challenged policies.
On the case law, Fenves notes, Laird holds that “a complainant who
alleges that the exercise of his First Amendment rights is being chilled by the
mere existence, without more, of a governmental investigative and data-
gathering activity” faces no substantial threat of future harm. 408 U.S. at 10,
14, 92 S. Ct. at 2324. This holding was necessitated by the facts of the case.
But Laird also contrasted the facts before it with a number of cases where “this
Court has found . . . that constitutional violations may arise from the
deterrent, or ‘chilling,’ effect of governmental regulations that fall short of a
direct prohibition against the exercise of First Amendment rights.”
Id.
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(citations omitted). Standing existed in the Court’s prior cases because “the
complainant was either presently or prospectively subject to the regulations,
proscriptions, or compulsions he was challenging.” Id. at 11, 2325. Thus,
according to Laird, a plaintiff who belongs in a class subject to the challenged
policies has standing, while one who only resides in a country that maintains
policies with which he disagrees, but who fails to allege himself personally
subject to the policies, does not.
Id. at 13, 2326. Laird does not prevent these
plaintiffs, who are arguably covered by the allegedly unconstitutional policies,
from having standing.
In a second thrust at Speech First’s invocation of Gardner, Fenves quotes
Carmouche, in which this court required more than “the mere existence of an
allegedly vague or overbroad statute.” 449 F.3d at 660. This is in harmony
with Laird. That Carmouche relied on a history of past enforcement to show a
substantial threat of future enforcement does not contradict Laird’s
acknowledgement that a plaintiff who is subject to a regulation or proscription
has standing to sue. Either type of evidence may establish “a fear of
prosecution that is not ‘imaginary or wholly speculative.’”
Id. (quoting Babbitt
v. United Farm Workers Nat’l Union,
442 U.S. 289, 302,
99 S. Ct. 2301, 2311
(1979)). As the Seventh Circuit explained, a plaintiff who mounts a pre-
enforcement statutory challenge on First Amendment grounds “need not show
that the authorities have threatened to prosecute him . . . ; the threat is latent
in the existence of the statute.”
Majors, 317 F.3d at 721.
Finally, Clapper v. Amnesty International USA imposes no obstacle to
finding a threat in this case that is likely substantial. In Clapper, the Supreme
Court determined that the plaintiffs were in a class that, under the challenged
statute, could not be targeted. 568 U.S. 398, 411,
133 S. Ct. 1138, 1148 (2013).
Having established this, the Court looked for a history of enforcement or
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specific facts 13 about the government’s targeting practices that might yet give
rise to a substantial threat of enforcement. Id. The Court did not suggest,
however, that if the plaintiffs had been the subject of the challenged policies,
such evidence would have been necessary. Unsurprisingly, in Blum v. Holder,
the First Circuit determined that “Clapper does not call into question the
assumption that the state will enforce its own non-moribund criminal laws,
absent evidence to the contrary.”
744 F.3d 790, 798 n.11 (1st Cir. 2014) (citing
Gardner, 99 F.3d at 15). The standard articulated in Gardner remains sound.
Turning to the argument that the University offered “compelling
contrary evidence” to the presumption of enforcement, Fenves alleges an
absence of relevant past enforcement of the University’s policies. He reiterates
the speech-protecting language of the policies in question and points to
declarations by University officials to support that the University lacks any
intention to penalize the intended conduct of Speech First’s members.
This evidence is not compelling. First, both Fenves and a former Dean
of Students assert that they know of no instance in which the University
speech policies have been enforced against the speech topics described by
Speech First. 14 Past enforcement of speech-related policies can assure
standing, but as the foregoing discussion shows, a lack of past enforcement
does not alone doom a claim of standing. See, e.g., Carmouche, 449 F.3d at 660
(“Controlling precedent . . . establishes that a chilling of speech because of the
mere existence of an allegedly vague or overbroad [law] can be sufficient injury
13 Unlike this case, Clapper reviewed dismissal for lack of standing at the summary
judgment stage, at which a plaintiff “can no longer rest on . . . ‘mere allegations,’ but must
‘set forth’ by affidavit or other evidence ‘specific facts.’” Id. at 412, 1148–49.
14There is no reason to doubt their statements, which are based only on their personal
experience; but on the other hand, the University’s student disciplinary records were
unavailable to Speech First at this stage of litigation.
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to support standing.”). Where the policy remains non-moribund, the claim is
that the policy causes self-censorship among those who are subject to it, and
the students’ speech is arguably regulated by the policy, there is standing. See,
e.g., Schlissel, 939 F.3d at 766 (fact that “there is no evidence in the record” of
past enforcement “misses the point”). Second, as was discussed above, the
policies’ protection for student free speech “rights” is qualified and limited by
required adherence to “university rules.” And third, University officials’
disavowals of any future intention to enforce the policies contrary to the First
Amendment are compatible with, and simply reinforce, the open-ended
language in those policies. The difficulty with such disavowals is that
regulations governing “rude,” “uncivil,” “harassing,” or “offensive” speech can
in fact cover speech otherwise protected by the First Amendment. See Snyder
v. Phelps,
562 U.S. 443,
131 S. Ct. 1207 (2011); Vill. of Skokie v. Nat’l Socialist
Party of Am.,
373 N.E.2d 21, 23 (Ill. 1978). 15 Moreover, the University
continues to defend the use of these terms.
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
15This difficulty is not avoided by the University’s reliance on Blum. The Blum court
construed a federal statute and, in doing so, exercised special “rigor[ ]” due to separation of
powers concerns. 744 F.3d at 797. The statute in that case specifically targeted conduct,
violent threats, and economic damage, but specifically excluded criminal liability for
protected First Amendment
conduct. 744 F.3d at 794. The government’s disavowal of
prosecutions for protected speech thus had a secure statutory basis, unlike the disavowals
here.
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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. 16 A reasonable observer must deduce that
the University meant to expand its regulatory authority beyond the First
Amendment; consequently, a reasonable student must act on the same
assumption and self-censor her speech in accord with the perceived policies.
Adding to the credible threat that the policies pose to the exercise of
protected speech are two other circumstances: the University’s awareness that
verbal harassment policies must be applied “narrowly” and the operation of the
Hate and Bias Incidents Policy, through the CCRT, to deter those who would
express controversial views.
The Institutional Rules’ definition of verbal harassment consumes
nearly a full page of small type. This alone might raise questions about
vagueness, but the uncertainty is magnified by the University’s caveat that:
Verbal harassment has been interpreted very narrowly by the federal
courts. Policies on verbal harassment or hate speech at many
universities have been held unconstitutional . . . . This policy should be
interpreted as narrowly as need be to preserve its constitutionality.
Put in terms of prospective enforcement, what does this mean? Surely it
reasonably implies that the University will protect and enforce its verbal
harassment policy as far as possible, but the distance to that horizon is
unknown by the University and unknowable to those regulated by it.
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
16 Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629,
119 S. Ct. 1661 (1999). Whether
Davis may constitutionally support purely verbal harassment claims, much less speech-
related proscriptions outside Title IX protected categories has not been decided by the
Supreme Court or this court and seems self-evidently dubious.
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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.” Keith Whittington, Free Speech and the Diverse
University, 87 Fordham L. Rev. 2453, 2466 (2019); see also Hon. Jose Cabranes,
For Freedom of Expression, For Due Process, and For Yale: The Emerging
Threat to Academic Freedom at a Great University, 35 Yale L. & Pol. Rev. 345,
360 (2017) (lamenting potential dangers of anonymous reports and
recordkeeping by campus bias “police”).
For these reasons, the existence of the University’s policies, which the
University plans to maintain as far as a federal court will allow it, suffices to
establish that the threat of future enforcement, against those in a class whose
speech is arguably restricted, is likely substantial. And such likelihood is all
that is necessary to establish the final prong of injury-in-fact for standing to
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seek a preliminary injunction in this kind of case. Speech First has established
an injury in fact.
D. Causation and Redressability
As in Carmouche, “[t]he causation and redressability prongs of the
standing inquiry are easily satisfied here.” 449 F.3d at 661. After all,
“[p]otential enforcement of the [challenged policies] caused [Speech First’s
members’] self-censorship, and the injury could be redressed by enjoining
enforcement of [those policies].”
Id. Accordingly, Speech First has standing to
seek a preliminary injunction.
III. Remaining Factors
On the record before us, the case is not moot, and the plaintiff has
standing to seek a preliminary injunction. For purposes of a preliminary
injunction, the next step would be to consider whether Speech First is likely to
succeed on the merits. Because the district court did not move to the merits,
though, and because the new language Fenves proposes might yet be adopted
by formal procedures of the Board of Regents and might—or might not—moot
certain issues, we must remand to the district court for reassessment of the
preliminary injunction.
At the same time, we note the consistent line of cases that have
uniformly found campus speech codes unconstitutionally overbroad or vague.17
17 See, e.g., McCauley, 618 F.3d 232; DeJohn,
537 F.3d 301; Dambrot,
55 F.3d 1177;
Shaw v. Burke, No. 2:17-cv-02386,
2018 U.S. Dist. LEXIS 7584 (C.D. Cal. Jan. 17, 2018);
Univ. of Cinc. Chapter of Young Ams. for Liberty v. Williams, No. 1:12-cv-155, 2012 U.S. Dist.
LEXIS 80967 (S.D. Ohio June 12, 2012); Smith v. Tarrant Cty. Coll. Dist.,
694 F. Supp. 2d
610 (N.D. Tex. 2010); Coll. Repub’s at S.F. State Univ. v. Reed,
523 F. Supp. 2d 1005 (N.D.
Cal. 2007); Pro-Life Cougars v. Univ. of Houston,
259 F. Supp. 2d 575 (S.D. Tex. 2003); UWM
Post, Inc. v. Bd. of Regents of Univ. of Wis. Sys.,
774 F. Supp. 1163 (E.D. Wis. 1991); Doe v.
Univ. of Mich.,
721 F. Supp. 852 (E.D. Mich. 1989).
31
Case: 19-50529 Document: 00515621737 Page: 32 Date Filed: 10/30/2020
No. 19-50529
Of course, not every utterance is worth protecting 18 under the First
Amendment. In our current national condition, however, in which
“institutional leaders, in a spirit of panicked damage control, are delivering
hasty and disproportionate punishment instead of considered reforms,”19
courts must be especially vigilant against assaults on speech in the
Constitution’s care. Otherwise, the people may not “be free to generate, debate,
and discuss both general and specific ideas, hopes, and experiences,” to
“transmit their resulting views and conclusions to their elected
representatives,” “to influence the public policy enacted by elected
representatives,” 20 and thereby to realize the political and human common
good. 21
CONCLUSION
The judgment of the district court is VACATED, and we REMAND the
case to proceed in light of this decision.
18See generally John Finnis, Reason in Action: Collected Essays Volume I 277–324
(2011); Harvey C. Mansfield, The Value of Free Speech, 37 National Affairs 164 (2018).
19 Elliot Ackerman et al., A Letter on Justice and Open Debate, Harper’s Magazine,
July 7, 2020, https://harpers.org/a-letter-on-justice-and-open-debate/; cf. Marie-Rose
Sheinerman, Eisgruber condemns professor’s op-ed that called Black Justice League a
‘terrorist organization’, The Daily Princetonian, July 12, 2020,
https://www.dailyprincetonian.com/article/2020/07/joshua-katz-black-justice-league-
terrorist-organization-quillette-letter-princeton.
20Barr v. Am. Ass’n of Political Consultants, Inc., 140 S. Ct. 2335, 2358 (2020) (Breyer,
J., concurring in part).
21 See generally Robert P. George, Making Men Moral 192–210 (1993).
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