Free Speech

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.

NEXT: Not All Animals Are Equal, and Some Are More Equal Than Others

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  1. Let’s see how this decision and the related debate influences the speech code at the Volokh Conspiracy, whose partisan, viewpoint-driven censorship has been imposed on disfavored (non-conservative) speakers for years.

    1. And yet here you are…

    2. The bad Rev commenting adversely to a post about university censorship which would discipline him seven ways from Sunday, about censorship on a site which does not censor him …. something does not compute.

      1. “on a site which does not censor him”

        This site has censored me repeatedly.

        Sometimes, my comments were removed (use of “c@p succ@r”).

        Later, I was warned to stop using certain words (“sl@ck-j@w”).

        Years ago, Artie Ray Lee Wayne Jim-Bob Kirkland was banned completely for making fun of conservatives.

        The proprietor has never rescinded any warning, restored any comment, or acknowledged any mistake with respect to this record of selective, viewpoint-driven, partisan censorship.

        Other than that, though, great comment!

        1. I felt hurt, threatened, and traumatized by being called a “clinger.” Qo’ tlhlngan. I am calling for an investigation.

          1. Ask the proprietor to censor anyone who offends you. He has done it before. He has every right to engage in censorship at this blog — his playground, his rules.

            1. I’ve never seen any of your posts removed.

              1. God damn it. Why? Why must you make me do this?


                Would you have seen his posts, if they were removed?

                Fuck, now I need a shower.

                1. “Would you have seen his posts, if they were removed?”

                  Um, yes, until they were removed. You may have showered for nothing.

                2. Presumably we’d see them, and then suddenly they’d be gone. It’s not like this site engages in preemptive moderation, where comments have to be reviewed before they appear.

                  I’ve visited plenty of sites with abusive moderation, (All of them left wing, by the way.) and it’s always VERY evident that they’re deleting comments: You see them, then you don’t. You see other comments replying to them. Comment numbering, where present, shows gaps.

              2. “Sometimes Bad Is Bad
                October.28.2020 at 9:09 pm
                I’ve never seen any of your posts removed.”

                This demonstrates why Prof. Volokh was willing to engage in blatant censorship to prevent my use of the term “sl@ck-j@w” at the Volokh Conspiracy.

                1. Oh, look: You used it right there. And I’m betting that your comment won’t be removed.

                  You’re about the most foul mouthed, obnoxious commenter here, and maybe tied for the most bigoted, and yet, you’re still here.

            2. In your in-group’s words, go create your own libertarian legal forum and be an obnoxious crank on it to your heart’s content, Kirkland. And, you aren’t being censored, as you can still use the terms freely elsewhere. Comprehend how crappy progressive thinking on free expression is? However, you are correct on your point that this community and forum has rules. You are incorrect in your expectation to be allowed to say whatever you like and claim that only non-conservatives are ‘censored.’

              1. […] this community and forum has rules.
                Based on how many times I get called variations of fag, and see calls for the brutal murder of liberals/Democrats?

                Not any meaningful ones.

        2. PS: Joe Biden is a crook.

    3. I am sorry this is happening to you.

      1. Not me. These vivid, documented examples of conservative hypocrisy with respect to censorship are handy whenever conservatives try to climb the high horse on the issue of free expression.

        1. This blog isn’t the government – it’s not even a giant tech corporation (we know your opposition to corporate power in politics). It’s a section of a site maintained by a nonprofit which tells potential commenters: “We reserve the right to delete any comment for any reason at any time.”

          1. I acknowledge that Prof. Volokh was entitled to censor me each time he has censored me. If he does not wish to permit the use of “c@p succ*r” at this blog — while ignoring calls for violence, and use of vile racial slurs, and the like from conservative commenters — he is entitled to remove comments, issue warnings against using certain terms, or ban a commenter (and he has done all three).

            The issue is not whether he is entitled to engage in repetitive, partisan, viewpoint-driven censorship. The issue is whether hypocrisy makes him a poor candidate to aim ankle-biting criticisms at strong, liberal-libertarian institutions from the high horse of an ostensibly principled champion of free expression.

            1. Seriously, you don’t see the difference between censorship by the government (or by a giant corporation, since we know you’re not a fan of corporate censorship) and censorship by some blog?

              Personally, I think that the more people see your particularly pungent comments, the better an idea they get about your worldview, and about the future you have in mind for your inferiors. You should be allowed to let it all hang out, it would be informative!

              The idea that what we’re getting from you now is but a bowdlerized, bland version of your real views, is quite interesting. It would be edifying to see what you’re like when you’re *not* censored!

              1. More obscene, I guess.

            2. Kirkland, on hypocrisy, you likely need to take a close look at yourself; the commenters here have already noted it’s one of your strengths. As for your aligning yourself with liberal-libertarianism, you are neither, based on the viewpoints you support. I am willing to bet that the ‘calls for violence’ did not meet the true threat standard, and the your ‘vile racial slurs’ were tongue in cheek and meant to get a rise, when not from a few of the drive-by racists. You support a racially delineated society -this is racist.

        2. You really know how to spout the crappola.
          We see the same, tired nonsense from you every day and several times a day. If you were censored, we would not have to see your ad hominem comments and insults which are little more than elementary school play yard taunts.

          1. ” If you were censored, ”

            I have provided specific information, including date and nature of the censorship, with respect to a number of incidences of censorship. Your comment is silly. Do you have anything worthwhile to contribute to this discussion?

        3. My horse is straight-edge. In death, he could be gelatin, dog food, or glue, any of which would benefit society more than you do while alive.

    4. Keep him talking about his censorship. It’s only the third most obnoxious thing he does here, so the more time he spends on this the less other crap comes out.

  2. The Supreme Court has essentially waived standing requirements in certain situations that it thjnks especially important, including Free Speech and abortion cases. But should it do so? The students involved in this case had never been subjected to any enforcement action. Their only basis for standing was that the rules could potentially be interpreted as prohibiting speech they wanted to make, not that anyone in a position to enforce anything had ever actually interpreted things that way. This is essentially a waiver of traditional standing rules.

    Should the court consider waivers of standing rules? Why should speech be different? In other matters there has to be specific evidence that the named defendants will actually enforce the law against the plaintiffs. Here, it doesn’t even appear that the named lead defendant, the president of the university, is even involved in enforcement at all. The students don’t really have any beef, any real case or controversy, with the university president. That ought to be a problem for a federal court limited by Article III. Why does “but speech” magically solve it?

    1. The threat of any investigation is oppressive, traumatic and damaging. That is the reality. You support lawyer rent seeking, where investigations are not damaging. Investigations generate jobs for three lawyers, the prosecution, the defense, and the judge. The Supreme Court has already rules that one need not be prosecuted to enjoin an unjust rule.

    2. Silence is violence.

    3. That’s a good question. You wonder what makes speech special. In what way are speech codes “chilling” to free speech that many laws, codes, regulations, and policies are not fundamentally “chilling” to other enumerated rights? In no way. From this I conclude that all laws, codes, regulations, and policies that chill the expression of any enumerated right should also be presumed to be unconstitutional. Double standard eliminated, great work everyone.

  3. UT of Austin should lose all federal funding, privileges, and subsidies. They engaged in viewpoint discrimination. Education covers all sides of a subject. Any limit on that characteristic makes the presentation indoctrination. The federal privileges were to promote education not indoctrination.

    The stopping of these privileges should be presumptive and automatic. The government should not be supporting indoctrination.

    1. If someone really believes in climate change science they shouldn’t be attending UT-Austin because its endowment is mostly funded by money made from oil and gas…and that funding is ongoing so it’s not like the Duke Endowment which almost 100 years ago was funded with cigarette money.

      1. Interesting point. But don’t expect consistency from the privileged

      2. The funding was not taxed. The university promised to provide education. Once in the hands of the university, all sides of the subject must be presented. Indoctrination is fine, but not with a government subsidy. Volokh asked about religious groups, and think tanks with agendas. No problem, just without government funding, privileges, and subsidies for education.

    2. There’s a long list of private conservative colleges that would also be hit by such a ruling.

      Which I’m not adverse to. But that’s why it’s never gonna happen.

  4. The process is the punishment. Speech codes encourage a victim mentality designed to obfuscate manifest destiny.”The meek shall inherit the earth” and other blasphemous platitudes one hears in kindergarten.

    1. Actually, “the meek shall inherit the earth” is from the Bible. You only learned it in kindergarten if you were at a religious school. More likely, you learned that in Sunday school.

  5. It is 2020. How are these still an issue? They were supposed to be an issue of the 1990’s.

    1. People never learn? Or they learn that they can get away with it.

      They didn’t change to become Americanized. They’re all still speech police in their minds, even when they can’t get away with actually enforcing it.

    2. We went through 8 years where the federal government was actively encouraging these sorts of abuses.

  6. “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.”

    Huh? I kinda thought that’s what “mootness” is all about.

    1. Only if the voluntary cession was irreversible, which it wasn’t.

  7. Does it complicate this discussion that the various bloggers and commenters do not share like views on what constitutes censorship? Or that some of them hold a diversity of views which they deploy selectively, so that censorship to them means one thing in one context, and something quite different in another?

    Here is a sampling of various takes on censorship you can find pretty regularly among VC threads (the list will not be complete):

    1. Censorship is government suppression of a particular point of view, or a particular fact—with intent to keep the suppressed material actually secret.

    2. Censorship includes organized expressions of disapproval, directed at disfavored opinions or factual assertions.

    3. Censorship includes any attempt to enforce in a private educational setting a code of civility.

    4. Number 3, above, is not censorship, but it would be if it were done in a public educational setting.

    5. Private workplace rules putting off limits some subjects, or kinds of subjects, are censorship.

    6. Private workplace rules putting off limits some subjects, or kinds of subjects, are indispensable, so not censorship.

    7. Numbers 5 and 6 above over again, but for public workplaces.

    8. Number 7 above over again, but distinguishing among public workplaces, and also among other public places.

    9. Privately owned internet platforms practice censorship if they do not allow all subscribers to say anything.

    10. Privately owned internet platforms practice censorship if they establish standards for acceptable speech, and then do not follow them to the letter.

    11. Privately owned internet platforms practice censorship if there is not general balance among partisan political themes in content they publish.

    12. Privately owned internet platforms practice censorship if they edit content.

    13. Privately owned publishers of all types—not just on the internet—practice censorship if they edit anything, ever, because anything done by a person which hampers the publication of anything is always censorship.

    14. Private editing is the essence of press freedom, and never censorship.

    15. Speech suppressed on grounds of time, place or manner has not been censored, or may have been, it depends.

    16 The opposite of 15.

    16. Assembly is a kind of speech, subject to censorship rules along with other kinds of speech (see Number 15 and Number 16).

    I suggest censorship-related discussions would be more productive if the scope and variety of censorship allegations were narrower. My own preference would be, Number 1 above is censorship, but everything else gets discussed in its own context, without attempt to heighten the drama—or raise the legal and political stakes—by labeling all this other stuff as censorship.

    People would be wise to note that when you call something censorship—and thus invoke the right of free speech, or press freedom—you foreclose discussion of context and practicalities, and go a long way toward excluding policy as a subject of discussion. After that, it’s all shouting.

    1. No edit function. Last item is 17.

    2. While most of those are interesting issues, censorship in this context is someone with the power of government silencing you for their pwn* benefit.

      This is why I’m pushing so hard that the tech companies are actually censoring because it’s under wink wink threat of section 230 changes, or breakup. Some candidates even threatened direct harm for not censoring harrassment.

      And once that started, immediate calls to tag or silence political opponents’ tweets (and not just the president’s) because they were harrassing or wrong or violent.

      How convenient and purely coincidental.

      * A typo, but I like it better in context.

    3. You are conflating a lot of different issues and taking comments out of context to make your alleged point of controversy. Perhaps this will clarify.

      1. “Censorship” as a general concept is anytime anyone stops you from saying something that you want to say. Thus, anyone can be a censor.

      2. Most of us believe that censorship is bad.

      3. Not all bad things are illegal. The First Amendment only protects you from censorship by the government.

      4. “By the government” includes the government directly interfering with your speech and the government using proxies to interfere with your speech.
      4a. State-funded universities are the government by the nature of their charter and founding.
      4b. Private organizations might be proxies for the government depending on the contract, relationship or nature of influence.

      5. Some restrictions are nevertheless justified. Freedom of speech is an important right but it is not the only right. I imagine you would be upset if I blasted my political opinions through your bedroom window at 2 am.

      6. Enforcement of those justifiable restrictions must be scrutinized carefully to ensure that they are not a pretext for viewpoint-based censorship.

      7. Censorship that is legal (see point 3) can still morally wrong and/or bad social policy.

      8. Reasonable people can disagree about whether a particular instance of private (and legal) censorship actually is morally wrong.

      So, no, I reject your attempt to redefine the broad concept of censorship to just the illegal “by the government” scenario. Censorship that is legal is still (often) wrong. But I do agree that you can’t invoke the 1st Amendment when complaining about private censorship (mostly) and that precision in language and thought would reduce a lot of the drama and hyperbole.

      1. Rossami — It is an attack on press freedom if government tells a private publisher that he cannot control what appears in his publication. Hence, private editing is a bulwark against censorship, not an example of it. I thought that was pretty generally understood and accepted, until I saw what the political right is trying to do in Congress.

        If you reject that principle, then, yeah, you can try to remake speech freedom from scratch, and include overt government censorship as a motive force to keep it going. Good luck.

        That said, I know where you are coming from. I too am pretty nervous about social media giants. The difference between me and the political right, as I see it, is that I want monopolistic-tending media giantism broken up, but right wingers seem to want to climb aboard and enjoy the ride—while making sure friends in government reserve special seats for certain government-approved opinions.

        The right solution? Repeal Section 230. Don’t tinker with it, get rid of it. Go back to abundant, various, and dispersed private publications, under the control of private publishers and editors. That is the only way yet discovered to foster both freedom of opinion, and diversity of opinion, while holding the government at bay. Given that all of that can be delivered by the private free market—and in fact is the best proof of free market virtue I know of—it puzzles me when self-described libertarians don’t back it.

        1. You’re still conflating illegal-and-always-wrong censorship by the government with often-wrong-but-legal censorship by private actors. Let me try again.

          Government telling you not to say X is censorship and illegal under the 1st Amendment.
          Government telling you to say X – also censorship and illegal under the 1st Amendment.
          Twitter telling you, a user, not to say X – still censorship but legal. Morally wrong, but legal.
          Government telling Twitter they must allow you, a user, to say X (or to block you from saying X) – back to censorship that is both wrong and illegal in the US (absent a few exceptions like national secrets or illegal acts).
          Government telling Twitter that they will withhold certain perks unless Twitter censors users – morally questionable but maybe legal depending on, well, lots of things.

          In other words, what you call “private editing” may be a bulwark against government censorship but if you do it in a manner that is indistinguishable from private censorship, that does not suddenly make it a social good. It’s merely a less-bad.

          Should R-politicians be threatening Twitter over their censorship? No, of course not. Should they (and we) be rolling over and pretending that Twitter’s private censorship is a-okay? No, we shouldn’t be doing that either.

          Repealing Sec 230, however, won’t do any of the things you think it will. The only thing repealing Sec 230 will do for sure is to prop up established traditional media at the expense of innovation.

          1. Correction to above:
            “Government telling you to say X” – should have been “also illegal under the 1st Amendment (with some exceptions) and maybe censorship”.

        2. Rossami — It is an attack on press freedom if government tells a private publisher that he cannot control what appears in his publication.


          The right solution? Repeal Section 230

          Once more, you dishonest hack, § 230 is what prevents the government from telling a private publisher that he cannot control what appears in his publication.

  8. Long story short: case law is going firmly in the direction where publicly-funded universities (note: different from “public university”) have little freedom to curate and discipline their student body based on non-criminal activity. Universities are resisting this however, because it’s counter to centuries of tradition. Cases like this come from the conflict between where we’re going and where we’ve been.

    Long story long: What this really boils down to is whether or not universities (public or private) are also communities and have the right/ability to self-police in matters that are legally permitted.

    For most of history, they have been. Even without talking about in loco parentis, universities have always been given wide latitude to decide what a student or faculty member should look like, both literally (male, white, upper-class, etc.) and metaphorically (demeanor, academic rigor, civility, etc.).

    That is to say… a hundred years ago no one would have questioned if a university could expel a student for being a rude bore. Or for being a woman. Or for being a Baptist. Or for being Black. Or for being gay. And so-on, etc.

    The idea that the government has a place in telling universities “actually, no, you can’t do that” is relatively modern, only going back a few decades.

    We run into cases like this (and Bob Jones, back in the 80s) because of this conflict between centuries of universities having full rights to exclude anyone they want from the student body, and the more modern notion of students having rights that supersede the University’s right to determine (or as they’ve put it in some court cases, “curate”) their student body.

    At some point, we’re probably going to get to a new status quo in which universities no longer purport to be communities, but merely service providers for educational teaching†. But until we get to that point, and universities still think of themselves as communities, they will think they have the right to establish community standards. And when someone inevitably violates those standards, they’ll go to court to argue “they shouldn’t be able to do that”.

    For people that think fondly of college/university being a time of self-discovery, where “campus life” was a weird little transitional place between being a child and being a full adult, and so-on, etc., ad nauseum… this will be regrettable. I count myself among that crowd, as I liked college, and I liked it being different from what was before and after.

    But I also don’t see a way to solve the conflict between student rights and university rights, and I expect student rights to eventually win, and universities to either withdraw from all public funding so that they can curate and discipline as they want, or to shed all pretenses of being a community and fully embrace being a business.
    †excepting a few private schools that are actually private. Sorry Bob Jones and Brigham Young, you’re not private enough.

  9. Between them, Judges Jones and King (the latter of whom I had the privilege of clerking, in 1980-1981) usually have represented opposing ideological poles of the Fifth Circuit; for them to concur on a case like this one isn’t unheard of, but does raise a few eyebrows, mine included. This is litigation that I hope my alma mater, UT-Austin, loses on the merits.

    1. *”of clerking for,” I meant to write just above.

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