Fifth Circuit Speaks Out Against Campus Speech Codes (in University of Texas Case)

Speech First, a pro-campus-free-speech advocacy group, can go on with its challenge to UT-Austin's speech codes—and the panel strongly suggests those codes (backed by anonymous reporting to the Campus Climate Response Team) are unconstitutional.

In today's Speech First, Inc. v. Fenves, Fifth Circuit Judge Edith H. Jones, joined by Judge Carolyn Dineen King (with Judge Gregg Costa concurring in the judgment), held that Speech First had standing to challenge various University of Texas speech codes, on behalf of its members:

The chilling effect of allegedly vague [campus speech] regulations, coupled with a range of potential penalties for violating the regulations, … [is] sufficient "injury" to ensure that Speech First "has a 'personal stake in the outcome of the controversy.'" …

[The University of Texas-Austin student code forbids, among other speech,] "[h]arassment," 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." …

The [UT] Acceptable Use Policy outlines permitted and prohibited uses of the information technology devices and systems provided and maintained by the University…. [It provides]:

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….

[T]he 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." …

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." …

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." …

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…. 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 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 University amended some of these policies when the case was on appeal, but the court concluded that such "voluntary cessation" of allegedly unconstitutional activity doesn't moot the challenge to the old policies. The court went on to conclude that the policies chilled the speech of Speech First's members enough to allow the challenge to go forward:

"[C]hilling a plaintiff's speech is a constitutional harm adequate to satisfy the injury-in-fact requirement." 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….

[T]he 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]" [are broad]. Terms like "harassment," "intimidation," "rude," "incivility," and "bias" beg for clarification. These pejoratives arguably cover the plaintiffs' intended speech….

Nor is it tenable, as the district court found, that the CCRT Campus Climate Response Team] "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…. [But] "[t]he Response Team's ability to make referrals—i.e., to inform [the university administrative authorities] or the police about  reported conduct—is a real consequence  that  objectively chills speech." …

[University President Gregory] 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]." … The Institutional Rules … [do] 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." …

[But s]tated 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]." 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," "intimidation," "rude[ness]," "incivility," and "bias." …

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 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 (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 (2017) (lamenting potential dangers of anonymous reports and recordkeeping by campus bias "police").

The panel therefore held that plaintiff had standing to challenge the police, and sent the case back to the trial court to decide the merits. But the panel added:

[W]e note the consistent line of cases that have uniformly found campus speech codes unconstitutionally overbroad or vague. {See, e.g., McCauley v. Univ. of V.I. (3d Cir. 2010); DeJohn v. Temple Univ. (3d Cir. 2008); Dambrot v. Central Mich. Univ. (6th Cir. 1995); Shaw v. Burke (C.D. Cal. 2018); Univ. of Cinc. Chapter of Young Ams. for Liberty v. Williams (S.D. Ohio 2012); Smith v. Tarrant Cty. Coll. Dist. (N.D. Tex. 2010); Coll. Repub's at S.F. State Univ. v. Reed (N.D. Cal. 2007); Pro-Life Cougars v. Univ. of Houston (S.D. Tex. 2003); UWM Post, Inc. v. Bd. of Regents of Univ. of Wis. Sys. (E.D. Wis. 1991); Doe v. Univ. of Mich. (E.D. Mich. 1989).}

Of course, not every utterance is worth protecting 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," 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," and thereby to realize the political and human common good.