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Speech Code Hokey Pokey: How Campus Speech Codes Could Rebound

If you believe that unconstitutional speech codes are a scandal at public universities, two recent cases should worry you.

This week, we are exploring legal issues around Greg's new book with Jonathan Haidt, The Coddling of the American Mind.

Yesterday, we showed how speech codes are consistently struck down by courts. Today, we look at two ongoing cases that threaten to curb that trend by expanding the doctrine of mootness while narrowing what qualifies to establish standing.

In May, the U.S. District Court for the Northern District of Georgia dismissed Uzuegbunam v. Preczewski, a First Amendment lawsuit filed by a student (represented by the Alliance Defending Freedom) against Georgia Gwinnett College. Uzuegbunam was stopped from distributing religious literature on campus because he didn't have a permit to do so outside of two small free speech zones. The district court found that Uzuegbunam's claims for injunctive and declaratory relief were moot — in part because the school had modified its policy, and in part because Uzuegbunam had graduated before the case had come to trial.

The court went on to dismiss plaintiffs' claims for nominal damages, all other claims being moot:

In this particular case, where Plaintiffs' constitutional challenges to the governmental policies are now moot, where the Court can grant Plaintiffs no practical relief in the form of an injunction or a declaratory judgment, and where Plaintiffs did not plead for compensatory damages, the lone remaining claim of nominal damages is insufficient to save this otherwise moot case.

(Slip op. at 22.) The case is being appealed, and FIRE has filed an amicus curiae brief in support of the plaintiffs. If it is allowed to stand, however, the district court's ruling that nominal damages cannot sustain an action where injunctive and declaratory claims are mooted because of graduation or voluntary policy change will make it very difficult for a student to challenge a speech code.

It's important to understand that nominal damages are frequently sought by plaintiffs in First Amendment cases. As we summarized in our brief:

Nominal damages compensate plaintiffs for violations of their constitutional rights absent "proof of actual injury." As the Supreme Court of the United States recognized in Carey [v. Piphus], it is through nominal damages that "the law recognizes the importance to organized society that those [absolute] rights be scrupulously observed." … Nominal damages do more than vindicate a plaintiff's constitutional right; indeed, "a plaintiff who wins nominal damages is a prevailing party [for purposes of recovering attorney's fees] under § 1988."

(Citations omitted.)

Most students at four-year nonprofit colleges graduate within four years. Meanwhile, the median time it took a federal district court to complete a trial in 2015 was 25.2 months. If graduation moots both injunctive and nominal damages claims against a school, as the Uzuegbunam court ruled, a community college student would almost never keep standing long enough to complain about First Amendment violations. And that's just the trial court decision. Adding in the time it takes for an appeal, even a student with the questionable "good luck" to have his rights violated on the first day of classes is unlikely to maintain his student status through an appellate review.

What about the modification of the policy? Since day one, nearly every time FIRE contacts a school about a restrictive speech code, the college says it was already "under review." (Apparently, that's the kind of review that involves doing nothing until someone notices.) But more importantly, dismissing a case because a school voluntarily withdraws a bad policy (but does not admit it was unconstitutional) rewards what Adam likens to the Speech Code Hokey Pokey: When the complaint appears, you pull your bad policy in. When the case is moot, you put your bad policy out. Then you take the civil rights of the students and you shake them all about. (This way, you'll never have to turn your censorship around — that's what it's all about.)

And colleges have a history of not-quite-abandoning a bad policy, or moving from one bad idea to another. Pennsylvania's Shippensburg University settled a lawsuit in 2004, only to reinstate some of those codes that led to a second lawsuit, settled in 2008. California's Peralta Community College District settled a 2010 lawsuit about interfering with student prayer, then immediately considered a restrictive restrictive "free speech zone" policy calculated to achieve the same end. In 2003, FIRE coordinated a lawsuit against California's Citrus College over its free speech zones, which its board resolved by rescinding the policies; in 2013, FIRE would sue them again for the same type of restrictive policy, a case they settled.

But mootness is only one of two procedural hurdles that seem to be rising to prevent students from meeting them. The other is standing, and the case demonstrating that threat to civil rights is the Fourth Circuit's recent decision in Abbott v. Pastides. (This case is part of FIRE's Stand Up for Speech Litigation Project.)

The facts of Abbott arose at the University of South Carolina in the fall of 2015. Members of the campus chapters of Young Americans for Liberty and the College Libertarians, including Abbott, put up posters on campus with examples of censored speech from other campuses. Three students complained that the posters were "offensive" and "triggering." Administrators sent Abbott, one of the event's organizers, a "Notice of Charge" accusing him of discrimination under a policy that listed "objectionable epithets" as potentially harmful conduct. The University later wrote Abbott to say it was not planning to pursue the investigation further, but only after several weeks, and it did not address the possibility that the complaining students might choose to appeal. While the complaints were being reviewed, the students were told they could not discuss them with anyone.

Both the district court and the Fourth Circuit panel held, among other things, that Abbott lacked standing to mount a facial challenge against rules that led to the investigation because, in short, the court didn't believe that a weeks-long investigation into protected speech would create an "objectively reasonable" fear of enforcement. But wouldn't the investigation itself indicate there's a possibility of enforcement, you ask? No, said the Circuit panel:

It is true, as the plaintiffs argue, that [the school's] letter announcing that no action would be taken in response to the Free Speech Event did not go on to specify that no action would be taken in response to similar events in the future. But it is up to the plaintiffs to show some objective reason to believe the University would change its position, and this they have not done.

(Slip op. at 30.) The Fourth Circuit is wrong in a number of ways, the most obvious being that being "charged" with discrimination and subjected to an investigation that could result in expulsion would indeed create a "chilling effect" on a student of reasonable firmness. One would almost have to question the intelligence of a student who wasn't deterred by being subjected to a process that could end in expulsion. How many times would a student engage in protected-but-offensive speech knowing that each time would be another opportunity for the school to launch an investigation?

This represents a marked departure from the relaxed standing requirements used in prior freedom of speech cases, especially those involving speech codes. In 1989's Doe v. University of Michigan, the federal district court held that the speech code there at issue had been enforced "so broadly and indiscriminately" that Doe, a psychology student, had standing to challenge it because there was a "realistic and credible threat that Doe could be sanctioned were he to discuss certain biopsychological theories," even though Doe hadn't actually been threatened with enforcement of the policy. In UWM Post v. Board of Regents of U. of Wisconsin, the UWM Post was not a party to any of the nine times the University of Wisconsin-Madison speech code had reportedly been enforced, but still had standing to bring a facial challenge.

In denying a motion to dismiss in Bair v. Shippensburg University, a recently graduated student and a current student who claimed their speech had been chilled by a code prohibiting "inflammatory or harmful" speech had standing; the court quoted Justice Blackmun's majority opinion in Forsyth County v. Nationalist Movement, writing, "the very existence of some broadly written laws has the potential to chill the expressive activity of others not before the Court." In Roberts v. Haragan, the court noted a student-plaintiff at Texas Tech could not make an as-applied challenge to an earlier version of a speech code (because he'd voluntarily complied with a request to move his speech, then never showed up to make it); that student still had standing to make a facial challenge to the interim policy that replaced it, which prohibited "insulting" speech.

The student-plaintiffs' petition for en banc rehearing — which could be ruled on at any moment — summarizes the stakes:

This Court has stressed the "persistent and insidious threats" to the First Amendment posed by the heckler's veto, and held that complaints alleging discrimination must be resolved without burdening speakers' rights. The panel's acceptance of what it described as "incidental burdens" imposed by enforcement of [Univ. of South Carolina's policy] is inconsistent with the law as articulated by the Supreme Court, this Court, and other circuits, and must be corrected on rehearing.

(Citation omitted.) If the petition isn't granted, a cert petition seems likely, because student rights cannot tolerate this interpretation of standing.

Uzuegbunam and Abbott represent a trend that undermines student speech not by directly attacking First Amendment rights, but by limiting the people who can vindicate them, and the amount of time they have to do it. At some point, a civil liberty ceases to have meaning if courts won't review its violation.

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  • Brett Bellmore||

    And depriving the civil liberty of meaning might just be the aim here.

  • bernard11||

    Whose aim? The courts? All of them? The universities? Or some secret giant conspiracy?

    Meanwhile, talking about aims, we have this, which I doubt will trouble many of the zealous free speech advocates among the commenters and conspirators.

  • Brett Bellmore||

    Interesting. The headline reads, "The Trump administration wants to tax protests."

    But when you read further down, all they want is for somebody to pay when they cause the government to incur "event management expenses."

    Isn't this just what public universities are doing to student groups, with the approval of Democrats?

    Sauce for the goose. I'd oppose both, but I'm not averse to charges after the fact if a riot takes place instead of a protest, or the organizers leave a mess.

  • James Pollock||

    Once upon a time, protesters expected to incur punishments, both legal and extralegal. Now, protesters want someone else to pick up the tab, and to go home afterwards undisturbed.

    Protesters who hang up a bedsheet with a slogan spraypainted on it from an overpass are a different class from protesters who roam the city smashing windows and burning cars. I'm not troubled if they get treated differently.

    Where I live now, the protests involve pulling down monuments to the Confederacy. The people who do this should be arrested for vandalism, and do the jailtime for vandalism. Even if they're right that there shouldn't be monuments to the Confederacy, the method of protest deserves to be treated as criminal acts.

  • bernard11||

    Once upon a time, protesters expected to incur punishments, both legal and extralegal. Now, protesters want someone else to pick up the tab, and to go home afterwards undisturbed.

    What punishments, legal or extra-legal, do you think are appropriate for someone marching, carrying a sign, on a public sidewalk, or speaking in a public park?

  • James Pollock||

    "What punishments, legal or extra-legal, do you think are appropriate for someone marching, carrying a sign, on a public sidewalk, or speaking in a public park?"

    Depends on what else they're doing. (See also: Time, Place, and Manner)
    They certainly can be punished by having opposing viewpoints expressed at them in (some) ways they would prefer not.

    Punishments in general:
    The civil rights protests, for example, included such things as entering private property and remaining despite being asked to leave. This got some of them arrested. They accepted being arrested for trespassing as a "cost" of making the point that they shouldn't have been excluded in the first place. Logging protesters sometimes spike trees. That shit is dangerous and should be subject to tort liability as well as criminal. Sometimes they pour sugar in the fuel tanks of logging equipment, that's criminal vandalism.

  • bernard11||

    In other words, you have no answer to my question, which specifically referred to someone marching with a sign on a public sidewalk or in a public park.

  • Brett Bellmore||

    Actually I think he answered your question in his second paragraph: By having opposing viewpoints expressed to them.

  • bernard11||

    In what sense is having opposing viewpoints expressed a punishment?

    Is Pollock suggesting that such expression goes beyond speech to actual violence?

  • James Pollock||

    "In other words, you have no answer to my question"

    In other words, your question has no answer, because you don't like "it depends" and didn't give any specifics that would allow me to determine what the answer would be.

  • bernard11||

    Bullshit.

    It was very specific.

    Go ahead and evade if you like, but cut the crap about "it depends."

    I gave you a very specific case: someone marching, carrying a sign, on a public sidewalk, or speaking in a public park

    and you won't answer, because you probably think, like Trump, that beating such people up is just fine.

  • bernard11||

    Isn't this just what public universities are doing to student groups, with the approval of Democrats?

    Two wrongs, Brett? What did your mother tell you about that?

    Some universities have sometimes charged student groups for various things, including security and cleanup, when speakers appear.

    I don't know that this has "the approval of Democrats." Maybe you can show me where it is in say, the Democratic Party platform, or in a bill supported by Democrats. It does not have my approval in general, though a reasonable cleanup fee, universally applied, for events held indoors, seems OK.

    The proposal described is a long way from that. It includes charges for "the salaries of personnel deployed to monitor the protest," for example.

    Besides, these are public outdoor spaces and, it seems to me, these charges are quite easily abused. Anyway, I'm glad you oppose the plan. We'll see who else does.

  • Brett Bellmore||

    "Two wrongs, Brett? What did your mother tell you about that?"

    Didn't I say I'd oppose both, or didn't you read far enough down in my comment?

  • bernard11||

    Yes you did, but not before hinting that one justified the other. I guess you intended no such hint, and I misinterpreted.

  • Brett Bellmore||

    Look, you shouldn't read hints into things where they are expressly denied. This is, if applied in bad faith to make protest financially impossible, just what universities run by the left are doing, so the left is in a piss poor position to complain about it. Pot, meet kettle; You're both black.

    But I disapprove of the practice of charging protesters fees for using public spaces, outside of cases where the protesters themselves, not their foes cause extraordinary expenses. Free speech is a right. rioting is not. Charge for the latter, not the former.

    Back in the '90's I was part of a Michigan Militia event at the state capital. We brought our own porta-potties, and left the area cleaner than when we came. Should we have been charged for the police snipers on the surrounding roof tops? I think not.

  • bernard11||

    just what universities run by the left are doing, so the left is in a piss poor position to complain about it.

    "Universities run by the left" now replaces "Democrats."

    OK. I think one or two cases of such charges have been mentioned here, but that hardly means abusive charges are commonplace.

    Even so, that hardly implicates everyone on "the left," since many disapprove.

    "The left" is not a giant monolithic conspiracy, Brett. We have every right to complain, and are not at all in a poor position because a handful of university administrators behave unwisely.

    And none of this goes to the point of my original comment. I still haven't seen much outrage over this administration policy or, for that matter, Trump's constant attacks on the press. Maybe I will, but for now the ardent 1A defenders here seem a bit partisan to me.

  • Sarcastr0||

    I love me a knotty procedural tangle, but the policy shifts noted in the last post aren't coming from judicial pressure, but from public pressure.

  • Brett Bellmore||

    Except that the judiciary is perfectly capable of ignoring public pressure when they want, and there's public pressure in both directions.

    They chose to ignore pressure in directions they don't want to go, and cave to pressure in directions they do want to go.

    So, yeah, realistically it's on them. "Public pressure" is just an excuse.

  • Sarcastr0||

    I'm not saying this isn't something that should be worked out. Justicibility is policy, after all.

    But it's telling you're looking at the courts for results when it's sunlight that's been making the most progress. Makes me wonder if this isn't more about culture war coup counting and less about results.

  • Eddy||

    I thought that focusing public pressure on censorship-happy universities *was* culture war activity.

  • Sarcastr0||

    Sure, it is. Though until I see stats otherwise, I see it as a minor skirmish with a fringe, not moving the needle.

    But when it's all about scalps in the war, public affairs scalps aren't worth anything compared to court opinion scalps!

  • Curly4||

    All this will change with the up and coming blue wave. Now this change will take years to accomplish but it will happen. The people of the US are joining the people of world in rejecting the old style leadership that the political power in Washington D. C. and are joining the more inclusive leadership that is most prevalent in Europe, namely in the EU.

  • GabrielSyme||

    The EU literally just passed a bill requiring content filters for all websites that allow users to upload content, I don't think that's really something we want to emulate

  • Eddy||

    I think it's a great idea to prevent people like (deleted) and (deleted) from spreading their ideas on the Internet.

    /sarc

  • Rossami||

    That was sarcasm, right? (I have to ask. I am sometimes sarcasm-impaired.)

    If not, I suggest you read some history. European governments are the "old style leadership". They are among the most illiberal in the world. The US has its failings but they are nothing like the authoritarianism and corruption seen in most of the rest of the world.

  • Michael Masinter||

    (1 of 2) The en banc decision by the conservative majority in Flanigan's Enterprises, Inc. of Georgia v. City of Sandy Springs, Georgia, 868 F.3d 1248 (11th Cir.2017) (en banc), cert. denied, 138 S. Ct. 1326 (2018) compels the result in Uzuegbunam v. Preczewsk, In Flanagan's married couples with disabilities and a vendor challenged a city ordinance prohibiting the sale of devices used primarily for genital stimulation, seeking declaratory and injunctive relief and nominal damages. Due to the prior panel rule, plaintiffs lost before the district court and a panel of the Eleventh Circuit, but the panel invited rehearing en banc to reconsider the earlier circuit precedent. The court granted rehearing en banc, and the parties briefed and argued the case before the en banc court. After the en banc argument, the city took note of hostile questioning and, before the en banc court issued an opinion, it repealed the ordinance.

  • Michael Masinter||

    (2 of 2) The en banc court then dismissed the appeal as moot. It first held repeal of the ordinance mooted claims for declaratory and injunctive relief despite the rule that voluntary cessation of illegal conduct ordinarily does not moot claims. The court created a more lenient exception for government defendants, and reframed the inquiry as whether there is a reasonable likelihood that the same or similar ordinance will be reenacted, concluding there was little likelihood of reenactment even though the city defended the ordinance's constitutionality through oral argument. Even more importantly, the en banc court overruled past panel decisions to hold that repeal also mooted the claim for nominal damages despite contrary holdings from six other circuits and the seemingly binding decision in Carey v. Piphus, 435 U.S. 247 (1978). The majority reasoned that permitting nominal damage claims to circumvent mootness would force courts to decide claims that could have no practical effect on the rights or obligation of parties; it distinguished Carey on the basis that the Carey plaintiffs sought both actual and nominal damages but were not entitled to actual damages. Judge Wilson, joined by Judges Martin, Jordan, Rosenbaum, and Jill Pryor dissented from the nominal damages mootness holding. See also Gagliardi v. TJCV Land Trust, 889 F.3d 728 (11th Cir. 2018). The en banc rule will govern until SCOTUS overrules it.

  • Michael Masinter||

    Just to be clear, I think both holdings in Flanagan's are incorrect, and that the nominal damages ruling is close to indefensible.

  • nonzenze||

    Thanks Michael, super informative.

  • tkamenick||

    That was informative, thanks! Agree with nonzenze. What if instead of pleading for $1 in nominal damages, people pled for $1 in compensatory damages? Or just start including a claim for punitive damages as a matter of course.

  • Ken Arromdee||

    We need to be more serious about the concept of "capable of repetition, but evading review".

  • Brett Bellmore||

    The court was serious about it. They were in favor of it.

  • nonzenze||

    I agree, but I also think Greg and Adam should not conflate the two distinct rationales here:

    (1) Mootness due to graduation of the individual plaintiff. This might be CORBER, depending on the specifics of each case.

    (2) Mootness due to voluntarily repeal of the offending policy. On this one, see Michael Masinter's post above on the (unfortunate) state of the law.

  • Michael Cook||

    I was a bit amused at the statement about undergraduates clearing the university in four years with their bachelor degree. Not really the case anymore. . .

    But on an even less serious level, I couldn't get past the Georgia case cited Uzuegbunam v. Preczewski. It almost made me long for simpler times, with famous cases like Roe v. Wade. At least I could spell them.

  • DavidTaylor||

    The statistics to which they link do show that 53% of students seeking a 4 year degree at a non-profit college do graduate in that time. That is consistent with their claim: "Most students at four-year nonprofit colleges graduate" in 4 years.

  • James Pollock||

    "the district court's ruling that nominal damages cannot sustain an action where injunctive and declaratory claims are mooted because of graduation or voluntary policy change will make it very difficult for a student to challenge a speech code."

    I question this conclusion.
    The speech code in question was challenged quite effectively. It was changed even before the case came to court.

    What wasn't protected was the lawyer's right to collect fees for fighting the speech code.

  • AmosArch||

    Modern colleges are largely religious institutions (or cult IMO) and I don't mean in the historical founding sense. Asking them to institute freespeech is like asking a Hindu to celebrate ramadan. Give them the the same protections other temples have and they can get tax exemption too but strip them of all the money, state support, and child sacrifices they enjoy.

  • DavidTaylor||

    Perhaps 'pre-modern' colleges were even worse, so perhaps we are on the right trajectory. Suppression of free speech on campus was so taken for granted that it was hardly ever contested up until the 1960s and the Free Speech movement. As sociologists and historians often point out, the emergence of a debate on an issue -- in this case the suppression of free speech -- often signals that change is taking place, and in this case the change is in the direction of greater free speech rights explicitly guaranteed. In my own 50 years plus as a college student, medical student, and faculty member, I have seen not so much the invention of speech codes as the explication of speech codes that already existed as unwritten standards of polite, gentlemanly behavior, or behavior befitting a proper young lady.

    One context for this historical change might be that colleges played an explicit in loco parentis role up until the 1960s. Most college kids at that point had grown up in households in which they were regularly warned not to tease or taunt their siblings, the disabled kid next door, etc. At least in my youth no kid would have ever considered replying to a parent that the parent was suppressing their rights of free speech, or was imposing unconstitutional speech codes. When I was a college students in the late 1960s most of had kinda the same attitude: colleges simply substituted for our parents.

  • perlchpr||

    Uzuegbunam v. Preczewski

    Gesundheit.

  • Brett Bellmore||

    This is what comes of discontinuing the policy of requiring immigrants to adopt new names if their names are hard to pronounce.

  • DavidTaylor||

    Was that ever a requirement? I know it was a practice at places such as Ellis Island, but my assumption has always been that immigrants simply accepted new names (names were simply a convenience for immigration officials), especially when their formal documents had that new name rather than their original name. I've traveled in many countries in which even "Taylor" is hard to pronounce! Happily, many, perhaps most of my Chinese students adopt a Western or American first name when they arrive here, and Anglicize their last names to make them easier. Years ago it led me to ask a friend about a possible difference between American attitudes toward our names and Chinese attitudes toward names -- he ended up editing a collection of essays on the subject...

  • Brett Bellmore||

    The policy is not so former as you might think; Immigration authorities messed with my wife's name back in 2006; Apparently they took exception to the Philippine practice of using your mother's maiden name for your middle name.

    She did manage to get it straightened out later, but it's not the sort of thing you want to fight about at the border.

  • Sarcastr0||

    This is what comes of discontinuing the policy of requiring immigrants to adopt new names if their names are hard to pronounce.

    Internet Dad Jokes about Names: Truly, a dark price to pay.

  • Longtobefree||

    So it may be that the Hokey Pokey really is what it's all about?

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