The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From Speech First, Inc. v. Sands, decided Tuesday by Chief District Judge Michael Urbanski (W.D. Va.):
The [Virginia Tech] computer policy's prohibition on "intimidation, harassment, and unwarranted annoyance" is clearly vague and overbroad. It fails to define or otherwise cabin the application of any of these terms. Its vague prohibition on "unwarranted annoyance" is particularly troubling, asking students to guess what kinds of annoyance may be warranted or not. Given its text and active—albeit rare—enforcement, there is "a realistic danger that the [policy] itself will significantly compromise recognized First Amendment protections…." … [A] student of ordinary intelligence "reading the policy would have no way of knowing whether his or her conduct was proscribed, and the policy creates a strong risk that it could sweep in conduct that is protected under the First Amendment." Speech First is likely to succeed on the merits of its challenge to this provision of the computer policy….
The court denied a preliminary injunction against
- the university's Bias Response Team, on the grounds that it "lacks any authority to discipline or otherwise punish students for anything" and thus doesn't have sufficient coercive power to trigger the First Amendment,
- the university's policy restricting "harassing" speech, on the grounds that the challengers' planned speech wouldn't fall within that policy in any event, and
- the policy require groups to reserve space before leafletting or gathering petition signatures, on the grounds that "whether Virginia Tech's time, place, and manner restrictions are reasonable as a matter of law" "is a fact-intensive inquiry that requires a more developed record, perhaps including information about the demands on reservable spaces by RSOs and the availability of alternatives for students who are not members of RSOs."
On items 1 and 2, the court largely agreed with Judge Helene White's dissent as to a similar policy in Speech First, Inc. v. Schlissel (6th Cir. 2019).