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First Amendment Lawsuit Challenges U.T.-Austin's Prohibition of Speech That Is 'Offensive,' 'Biased,' 'Uncivil,' or 'Rude'

The university's definition of "harassment" is breathtakingly broad.

University of Texas at AustinUniversity of Texas at Austin"Student A," a freshman at the University of Texas at Austin, is a self-described "Tea Party conservative" who "strongly supports Israel, believes in a race-blind society, supports President Trump, is pro-life, and supports the border wall."

"Student B," a U.T.-Austin sophomore who "considers himself a libertarian," "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."

"Student C," a U.T.-Austin freshman who "believes that the breakdown of the nuclear family has had many negative effects on society," is "strongly prolife," "strongly supports the Second Amendment," and "believes that Justice Kavanaugh was treated unfairly during his confirmation proceedings."

According to a First Amendment lawsuit filed by the group Speech First yesterday, all three students are afraid to speak their minds, not because their views are likely to be unpopular on campus, but because they worry that they will be investigated and punished by the university for violating its broad, vague rules prohibiting speech that strikes other students as "offensive," "biased," "uncivil," or "rude." That fear seems entirely credible when you consider U.T.-Austin's policies regarding "harassment" and "campus climate incidents," which read as if they were written by officials unfamilar with what federal courts have been saying about freedom of speech at state-sponsored universities for half a century.

U.T.-Austin's Institutional Rules on Student Services and Activities prohibits "verbal harassment," defined as "hostile or offensive speech" that a) "is not necessary to the expression" of a "political, religious, philosophical, ideological, or academic 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 rule says verbal harassment "may consist of threats, insults, epithets, ridicule, personal attacks, or…harassing sexual speech" 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."

Some of the conduct covered by that rule could qualify as sexual harassment under federal education law or as criminal harassment under Texas law. But on its face, the ban also covers a lot of constitutionally protected speech. Note that the university decides what sort of speech is "necessary" to express a "political, religious, philosophical, ideological, or academic idea," and students have no way of anticipating what will qualify. The "hostile or offensive speech" need not be "severe, pervasive, and persistent," as under federal law; rather, any one of those will do. The requirement that the speech be "personally directed to one or more specific individuals" would cover all sorts of online and in-person conversations. Finally, the examples of bias includes not just the usual categories, any one of which could be the basis for dubious charges, but also "ideology, political views, or political affiliation," which means almost any heated political discussion could be considered verbal harassment.

If Student A got into an argument about the border wall with a Latino student, he could perceive her rhetoric as "hostile or offensive," maybe even "severely so," and surmise that it was based on his "national origin." If Student B condemned the Democratic Party's disrespect for the Second Amendment in a coversation with Democrats, that could easily be construed as "hostile or offensive speech" directed at people based on their "ideology, political views, or political affiliation." If Student C, God help him, made a passionate plea for protecting the lives of unborn children to a group of female students who support abortion rights, that too could qualify as verbal harassment, directed at them by virtue of their gender and their political views.

There are similar problems with the prohibition of "harassment" in U.T.-Austin's Residence Hall Manual, which applies to all students who live in university housing and want to continue doing so. "Members of an educational community should adhere to standards of civility and good taste that reflect mutual respect," the manual says. "A respectful environment is free of harassment, violence and verbal abuse....In an effort to foster an environment free from harassment and intimidation, Residence Life is committed to responding appropriately to acts of racism, sexism, heterosexism, ageism, ableism and any other force that seeks to suppress another individual or group of individuals."

U.T.-Austin also imposes "standards of civility" on communications through the university's email system or the internet access the school provides. The Office of the Chief Information Officer's Acceptable Use Policy demands that students "be civil" and "not send rude or harassing correspondence." Penalties for violating the Acceptable Use Policy include "verbal warning, revocation of access privileges, disciplinary probation, suspension from the university, [and] criminal prosecution."

Any hope that wise university officials will apply these sweeping rules judiciously seems misplaced in light of U.T.-Austin's Campus Climate Response Team (CCRT), which encourages students to file a report whenever they hear or read anything that offends them. "Campus climate incidents" can include "verbal harassment" on or off campus, remarks that "create a hostile or offensive classroom environment," statements by faculty members "perceived as derogatory and insensitive," "derogatory comments" on Facebook, "insulting and insensitive posts on social media or group chat apps," "insulting or insensitive online posts pertaining to race, gender identity, or sexual orientation," "a party with a racist theme," or "student organizations participating in traditions perceived as insensitive or based on stereotypes." Students can file reports anonymously, and they need not be witnesses to the incidents they describe.

Students who say or write things that offend others therefore may find themselves interrogated by CCRT investigators based on thirdhand reports from unidentified complainants. The CCRT does not have much power on its own. But if it investigates an incident and decides there may have been a violation of U.T.-Austin policies or criminal law, it refers the matter to university officials or police for further action. The CCRT received more than 1,000 reports during the last four academic years.

In this environment, it would not be surprising if students with unpopular views thought twice before stating them or worried about expressing them too forcefully or provocatively. The Speech First lawsuit notes several incidents that reinforced the impression that "certain viewpoints are not welcome on campus," including the university's condemnation of an "affirmative action bake sale" that prompted about 200 CCRT reports, the refusal of funding for a debate on inequality sponsored by the U.T. Objectivist Society, and the cancellation of a conservative group's "Catch an Illegal Immigrant" event after an administrator warned that it violated U.T.-Austin's "honor code."

The lawsuit argues that the university's policies are unconstitutionally vague and overbroad, chilling constitutionally protected speech. Speech First is asking the U.S. District Court for the Western District of Texas to issue injunctions barring U.T.-Austin from enforcing its speech restrictions or using the CCRT to investigate complaints about "campus climate incidents."

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  • Eddy||

    "If Student C, God help him, made a passionate plea for protecting the lives of unborn children to a group of female students"

    Or male students - what if he said abortion encourages male irresponsibility? That could trigger a precedent-setting prosecution for misandry.

  • Hank Phillips||

    Note to foreign readers: mystical infiltrators like Robert Dear here believe that sending men with guns to coerce doctors and force women into unwanted labor is a good thing that ought to be legal--even though banned thanks to the 1972 LP platform adopted by the Supreme Court as Roe v Wade.

  • Eddy||

    Mystical Infiltrators is actually the name of my band.

    Here's a sample of our lyrics

    Hank Phillips is babbling nonsense again
    Yeah, yeah yeah
    He can fuck right off with that shit
    Yeah, yeah yeah

  • Zeb||

    But he's so consistent in his peculiar babble. Surely he deserves some credit for that.

  • Quixote||

    These unpresidented comments illustrate the dangers involved in the baloney we keep hearing from the so-called "free-speech community" (which in itself has become a sad joke). University administrators all over our great nation are right to establish limits to such nonsense. At NYU we have had to deal with several major incidents. Any faculty member here knows that it starts with a little bit of offensive language, or a prurient gesture in the classroom, and then it ends up with inappropriately deadpan "parody" that poses a direct peril to the reputations of some of our most distinguished colleagues, and hence to public safety. See the documentation of America's leading criminal "satire" case at:

    https://raphaelgolbtrial.wordpress.com/

  • Cy||

    Being able to ruin someone's life because of your feelz, what a world we live in.

  • Rev. Arthur L. Kirkland||

    Not a fan of anti-abortion absolutists, Cy?

  • Cy||

    Not even a little bit.

  • Rev. Arthur L. Kirkland||

    Good. I'll match your $100 donation to Planned Parenthood if you wish.

  • Jack Klompus Magic Ink||

    I'll pay you $20 to buy a gun and shoot yourself in the face.

  • Sevo||

    Rev. Arthur L. Kirkland|12.14.18 @ 3:56PM|#
    "Good. I'll match your $100 donation to Planned Parenthood if you wish."

    Goody for you. I'll take a $100 donation from that lying outfit, asshole.

  • Diane Reynolds (Paul.)||

    breathtakingly broad.

    "Broad" = problematic.

  • Eddy||

    Skirting the edge of legality?

  • A Thinking Mind||

    I'm sure that's how some of those students feel about free speech.

    "Why, if ALL speech is free, it opens the door for people to say all manner of harmful and problematic things. Broad platitudes like free expression are so problematic."

  • a ab abc abcd abcde abcdef ahf||

    "Breathtaking" offends polio victims in iron lungs, or even old folks with oxygen canisters.

  • Longtobefree||

    Damn right.
    I have trouble enough with my breathing without some young whippersnapper taking it away.

  • Hank Phillips||

    I am not surprised. Biking across campus in the 70s it was not unusual to find people laughing for no apparent reason. On that same campus in the 1990s you'd find people crying for no apparent reason.

  • Eddy||

    Drugs were better in the 70s?

  • Gaear Grimsrud||

    Dunno.I was there, but it's kind of a blur. Woke up in 1980 and everything was cool so I guess the drugs were good. Or sufficiently groovy at the very least.

  • Dillinger||

    drugs were lovely in the 90s.

  • Sometimes a Great Notion||

    MDGA !

  • Zeb||

    Especially the LSD.

  • ||

    Dreadful.

    But it's okay. Robby has assured us all conservatives are just as bad.

  • Rev. Arthur L. Kirkland||

    Conservatives are far worse, as any reasoning person recognizes. Every campus of the conservatives obtain control becomes a fourth-tier (or unranked), censorship-ridden, authoritarian goober factory.

  • BYODB||

    So, they become exactly like their leftist peers?

  • Rev. Arthur L. Kirkland||

    The liberal-libertarian mainstream operates our strongest schools. These liberal-libertarian schools ("leftist" to you, apparently) tend to vindicate academic freedom, to avoid teaching nonsense, to refrain from collecting loyalty oaths, to respect science, etc. Against that background, your comment is silly.

  • BYODB||

    You keep using the word liberal-libertarian but those are not the same thing nor even compatible these days. If you're talking about classical liberals then I would agree with you, but that particular strain of liberal thought is dead in these United States.

    'Liberal' might as well be short-hand for Progressive in the modern era even though, amusingly, those two things aren't at all the same either.

  • Zeb||

    I still hold out some hope for "liberal". There seems to be a growing cohort of the classical sort of liberal these days. I think it's a damn shame that "liberal" has been conflated with progressive. We need a political center that still thinks that government should have a damn good reason to get more involved in people's lives and that for the most part people should be left alone.

  • Sevo||

    Rev. Arthur L. Kirkland|12.14.18 @ 3:59PM|#
    "The liberal-libertarian mainstream"

    Is a fantasy promoted by scumbag assholes like you.

  • ||

    I really wish you were a parody handle.

  • Gaear Grimsrud||

    To be sure.

  • Rev. Arthur L. Kirkland||

    If these three fledgling yahoos are concerned that the University of Texas at Austin -- a strong, liberal-libertarian, mainstream university occupying a reasoned oasis of excellence and modernity in the middle of a huge stretch of dry, flat, half-educated, bigoted, superstitious backwardness -- will begin to emulate the hundreds of conservative-controlled, censorship-shackled, nonsense-teaching, science-disdaining, speech-and-conduct-code-controlled, loyalty-oath-collecting, fourth-tier and unranked, right-wing goober factories that afflict America, I share their hope that UT's administrators will reject any temptation to act like right-wing educators.

    It would be a tragedy were UT to begin to follow the path that has led Grove City, Regent, Ave Maria, Hillsdale, Wheaton, Ouachita Baptist, Biola, Liberty, and the like to failure, ignorance, and dysfunction. We need all of the strong, liberal-libertarian schools we can get. We need fewer, or none, of the conservative-Republican yahoo cultivation centers.

  • Unicorn Abattoir||

    No "carry on, clingers"? Is the Reason Gecko starting to slip?

  • Gaear Grimsrud||

    You often reference these "goober factories". Do they manufacture synthetic peanuts? And this liberal-libertarian mainstream you describe might be descriptive in the classical sense, but in the context of the article is a non sequitur. Guess I have no choice but to carry on.

  • Rev. Arthur L. Kirkland||

    Do they manufacture synthetic peanuts?

    They grow goobers, or yahoos. Poorly educated, backward, superstitious, gullible, sheltered snowflakes. Fledgling Republicans.

  • Bloodaxe||

    Do you know what a false dichotomy is?

  • Dace Highlander||

    Yes it would be far better for UT to begin following the path of University of Missouri, Oberland College, Evergreen State College, UW-Madison, University of New Hampshire, CUNY, Hobart and William Smith, and the like to failure, ignorance and dysfunction.

  • Rev. Arthur L. Kirkland||

    Let's hope these young right-wingers were smart and skilled enough to strip their social media accounts of their views on blacks, women, gays, immigrants, and the like before they filed a pleading in which they claim to be "race-blind" and the like.

  • soldiermedic76||

    Why? Will they deserve their rights curtailed because they posted something mean? Stop calling yourself a liberal, you aren't. You are a fucking authoritarian asshole.

  • Alcibiades||

    The Rev's ignorance of First Amendment jurisprudence is only matched by his ignorance of, well, everything else.

  • ||

    He's illiberal.

    And a smart ass at that.

  • Rev. Arthur L. Kirkland||

    I have stated many times that authoritarian right-wing bigots have rights, too. The backward and uneducated have rights, too. Stale-thinking hypocrites have rights, too.

    I have lost my taste for political correctness, so I call a bigot a bigot, a half-educated yahoo a half-educated yahoo, a superstitious loser a superstitious loser, and a can't-keep-up backwater a can't-keep-up backwater. I also call an uneducated, bigoted, stale-thinking, economically irrelevant right-winger an ardent Trump supporter. Plenty of conservatives seem to prefer political correctness in those contexts.

  • soldiermedic76||

    If you call a bigot a bigot, do you call yourself a bigot when you look yourself in the mirror? You don't defend anyone's rights, you just stated that these plaintiffs best hope they erased anything you find disagreeable. The implication being that if they haven't then they deserve to lose their case, i.e. they don't deserve to have freedom of speech. It is funny how much you don't realize that you are the ultimate authoritarian, who spends you time hating those who you don't agree with. As for uneduy, your level of discourse I'd peurile and shows no sense of self reflection or awareness. It is derivative, full of partisan cliches. It shows no original thought and is often non-sequitor. If you have any education, I do not doubt it exceeded your intellectual abilities. You are the definition of knowledge without understanding.

  • Jack Klompus Magic Ink||

    Let's hope someone curb stomps your retarded face then finishes you off with three rounds to the head.

  • Rob Misek||

    If we don't fight for more rights and freedoms as progress and technology make them available, laws will be written to restrict them before we can ever enjoy them.

    The corrupt act with impunity. The directions they give to their minions are lost in their smoke and mirrors. Without proof, there is no justice.

    It is our right to witness anything we can. Digital recordings are simply the stored memories of what we have witnessed. Who has the right to say we can't record some or all of our memories? The corrupt already have written laws on the books doing exactly that. We have done nothing about it.

    All it takes for the triumph of evil is that good men do nothing. EB

    Fight or lose.

  • lafe.long||

    You know I'm currently re-reading Aldous Huxley's "The Devils of Loudun".

    Timeless and relevant.

  • SundanceInGlentucky||

    "In an effort to foster an environment free from harassment and intimidation, Residence Life is committed to responding appropriately to acts of racism, sexism, heterosexism, ageism, ableism and any other force that seeks to suppress another individual or group of individuals."
    Isn't it harassment, intimidation, and seeking to suppress another individual if they enforce this?

  • Alcibiades||

    Yes, it amounts to a chilling of expression and prior restraint, both forbidden on First Amendment grounds.

  • SundanceInGlentucky||

    And an actual violation of their own policy. They would have to sanction themselves every time they enforced it.

  • Stephen Lathrop||

    Not forbidden generally, Alcibiades. In fact, the 1A is extensively gerrymandered, applying not at all (or with limited force) in many venues, such as private businesses, private universities, and even in many scenes of government employment. Perhaps because exceptions are so routine and pervasive, they go without notice in many of these comments. But they should be noticed, because widespread exceptions call forth the question on what basis gerrymandering of rights ought to be regarded as acceptable, or even beneficial, or necessary.

    Most folks agree that constitutional rights get their fullest scope in the public square—the place where your "forbidden on First Amendment grounds" reliably applies. Elsewhere? It's a contested landscape, which is why this debate about campuses keeps coming up. There is little point trying to win an argument by asserting no controversy exists. If that were true, the question wouldn't come up. But asserting no controversy exists is exactly what right wing advocacy on this blog typically does. It's question begging writ large.

  • soldiermedic76||

    The 1A is not gerrymandered in private business or private universities for the simple fact that the 1A restricts the government only. Read it, it doesn't say anything about private business shall make no law, but it does say Congress shall make no law, e.g. it only applies to the Federal government. It was extended to state and local governments via the 14A. At no point has it ever been extended to private companies.

  • Alcibiades||

    Soldiermedic76 has saved me the trouble of correcting your laughably egregious error on the intent and legal scope of the First Amendment.

    It's difficult to grasp how someone could be so ignorant on so basic a constitutional issue but apparently such a state was easily within your grasp.

  • Sevo||

    Lathrop is similar but far worse than the idiot trueman in posting laughably obtuse (and ingorant) claims hoping someone might be fooed into thinking they're 'subtle' and 'nuanced'.
    They're bullshit on stilts.

  • BYODB||

    Heterosexism? What the fuck does that even mean? Does this mean if gay people bash on someone for being straight they get in trouble for it? I only ask since last I checked they were using the word homophobia for that niche.

  • Dillinger||

    suit filed because fear wtf?

  • Eddy||

    Instead of waiting to see if they get prosecuted/kicked out of school.

  • Dillinger||

    i'm less sympathetic w/o harm

  • BYODB||

    It's ok, courts usually require a little thing called standing to bring a case so...yeah. This one is over before it begins unless they can point to some kind of harm.

  • soldiermedic76||

    The fact that fear of prosecution has hindered their speech is enough to establish standing. Additionally, all they need to establish standing is that they can be negatively impacted to establish standing.

  • BYODB||

    I'm not so sure of that, but I'm no lawyer. If there had been repercussions for something they had actually said it would be more clear cut.

  • soldiermedic76||

    Standing can involve possible harm, or hypothetical harm.
    http://en.m.wikipedia.org/wiki/Standing_(law)

  • soldiermedic76||

    Well that didn't work
    http://en.m.wikipedia.org/wiki/Standing_(law)

  • soldiermedic76||

  • soldiermedic76||

    Well fuck it. You need to add the word law to the link (for some reason I can't get it to attach to the link, or go to the disambiguate section and chose standing(law). Definition 2 is the perinent one and is most generally applied in 1A cases. They just have to show that the law applies to their situation and thus could cause harm.

  • Longtobefree||

    "offensive," "biased," "uncivil," or "rude."
    That describes every uttering I am aware of from any and all democrats since the glorious revolution of November 2016.

    Plan B for the alphabet crew; file a complaint against every instructor and administrator you have contact with for offending conservative values. Drown them in paperwork.

  • Ecoli||

    Can you say, "it's OK to be white" during your "the problem of whiteness" lecture?

  • Spookk||

    Same stuff everywhere. For a long time. Look at suits involving free speech from coast to coast. FIRE collects some info on them, but it's possible to find more by simply googling the names of the educational institutions along with choice keywords.

  • LiborCon||

    "If Student B condemned the Democratic Party's disrespect for the Second Amendment in a coversation with Democrats, that could easily be construed as "hostile or offensive speech" directed at people based on their "ideology, political views, or political affiliation."

    And if Student P condemned Non-Sissy American's support for the fundamental right to Keep and Bear Arms in a conversation with Real Americans? Well, that's totally different. Because the weak and useless need special rights.

  • wreckinball||

    Why do dopes who don't believe in 1A comment here?
    Don't they have communist sites somewhere to hang out at

  • TGoodchild||

    If you care to stare into the abyss, go to wonkette. *shudders

  • kevrob||

    Texas is supposed to be all free-market conservative, socially conservative, so much so that they re-elected that turd-bag Cruz. Why the hell don't they privatize their state U's, then? A.) Football trumps market economics and free speech.

  • Longtobefree||

    That was before they failed to shoot immigrants from California, and allowed them to vote instead.
    (Yes, that is a warning to the nation)

  • Sympatica||

    Austin is where all the Calif liberals moved to get away from Calif taxes. Maybe Texas should raise taxes really high in the hopes that these irritating, dishonest, arrogant, fascists will leave the state.

  • akita96th||

    People who support trump are not right in the head. Trump is a crook, grifter, a womanizer a con man an habitual liar a racist and most likely involved in treason in colluding with Russians to thwart our election process. He takes money from foreigners by using Mar-a-Logo the palace of a fool in his grifting activities. Trump himself embodies what it means to be absolutely stupid. He is devoid of anything resembling knowledge. He hates scientists he denies known facts. His supporters are not the brightest our country has to offer seeing as how they gravitate toward their own kind (the stupid kind). One thing you will never see Trump do or his minions and that is going on any kind of fact finding mission. Facts are not Trumps friend so he denies all truth in facts as false news, according to him and his internal instinct which is pretty devoid of anything that resembles truth or knowledge. To tell me trump is the smartest president we ever had tells me I am arguing with an idiot and I will lose that argument because that idiot will beat me with his endearing experience in being overtly ignorant and downright stupid. Facts have no place in the minds of imbeciles like trumpanzees....These people are dumber n a box dried cat turds. Now please try to prove me wrong lol...good luck.

  • markm23||

    Are you trying to demonstrate the sort of "offensive" speech that the University will never apply this speech code to?

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