The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

Eleventh Circuit Strikes Down Univ. of Central Florida's "Discriminatory Harassment" Speech Code


An excerpt from today's Eleventh Circuit decision in Speech First, Inc. v. Cartwright (written by Judge Kevin Newsom and joined by Judge Stanley Marcus and District Judge Richard Story), which generally strikes me as quite right:

[In] determining the propriety of preliminary injunctive relief[, we consider, among other things, whether plaintiff has shown a] substantial likelihood of success on the merits ….

The discriminatory-harassment policy is almost certainly unconstitutionally overbroad…. [T]he policy (1) prohibits a wide range of "verbal, physical, electronic, and other" expression concerning any of (depending on how you count) some 25 or so characteristics; (2) states that prohibited speech "may take many forms, including verbal acts, name-calling, graphic or written statements" and even "other conduct that may be humiliating"; (3) employs a gestaltish "totality of known circumstances" approach to determine whether particular speech, for instance, "unreasonably alters" another student's educational experience; and (4) reaches not only a student's own speech, but also her conduct "encouraging," "condoning," or "failing to intervene" to stop another student's speech.

The policy, in short, is staggeringly broad, and any number of statements—some of which are undoubtedly protected by the First Amendment—could qualify for prohibition under its sweeping standards. To take a few obvious examples, the policy targets "verbal, physical, electronic or other conduct" based on "race," "ethnicity," "religion [or] non-religion," "sex," and "political affiliation." Among the views that Speech First's members have said they want to advocate are that "abortion is immoral," that the government "should not be able to force religious organizations to recognize marriages with which they disagree," that "affirmative action is deeply unfair," that "a man cannot become a woman because he 'feels' like one," that "illegal immigration is dangerous," and that "the Palestinian movement is anti-Semitic."

Whatever the merits or demerits of those sorts of statements, they seem to us to constitute "core political speech," with respect to which "First Amendment protection is 'at its zenith.'" Because the discriminatory-harassment policy restricts political advocacy and covers substantially more speech than the First Amendment permits, it is fatally overbroad….

The University's policy isn't just overbroad, it's also an impermissible content- and viewpoint-based speech restriction—or, at the very least, likely so…. It is content-based because the University must "examine the content of the message that is conveyed to determine whether" it harasses another student "based upon" any of a long list of characteristics—e.g., race, sex, political affiliation, etc. Because the policy is a content-based restriction, it must satisfy strict scrutiny, and we doubt it can.

Although the University may have a compelling interest in preventing students from disrupting its educational environment, its policy doesn't seem to us to be narrowly tailored to that end. As already explained, the policy covers speech that pertains to any of a number of characteristics, can take any of a variety of forms (including "verbal acts" and "written statements," and "other conduct that may be humiliating"), and that is deemed, by reference to a non-exhaustive seven-factor test, to "unreasonably … alter" another student's educational experience—and, indeed, to the acts of "condoning or encouraging," or even "failing to intervene" to stop another from speaking. That, with respect, is the opposite of narrow tailoring.

In any event, the discriminatory-harassment policy likely goes beyond content-discrimination to discriminate on the basis of viewpoint. Even within the category of harassing speech, UCF prohibits only speech that is "discriminatory." To borrow the Supreme Court's recent observation about similarly loaded terms in one of the Lanham Act's trademark registration provisions, which it found impermissibly viewpoint-based, "[t]he meaning[] of" the word "discriminatory" is "not mysterious"—it connotes speech that denigrates rather than validates certain characteristics. Here, as there, "resort to [the] dictionaries," confirms that commonsense conclusion. See, e.g., Discriminatory, Oxford English Dictionary (online ed.) ("That treats a person or group in an unjust or prejudicial manner."). In prohibiting only one perspective, UCF targets "particular views taken by" students, and thereby chooses winners and losers in the marketplace of ideas—which it may not do.

{The University seeks the benefit of the more deferential First Amendment standard articulated in Tinker v. Des Moines Independent Community School District (1969), and its progeny. In particular, the University asserts that its discriminatory-harassment policy complies with Tinker because it prevents campus disruption. The district court likewise relied heavily on Tinker's indulgent framework.

There are three problems. First, it's not at all clear that Tinker's more lenient standard applies in the university—as opposed to the elementary- and secondary-school—setting. The caselaw sends mixed signals. On the one hand, this Court applied Tinker to speech regulations in a college setting where a student claimed that the college's anti-stalking policy was "unconstitutionally overbroad and vague." Doe v. Valencia Coll. (11th Cir. 2018). And the Supreme Court once cited Tinker for the proposition that state universities have an "undoubted prerogative to enforce reasonable rules governing student conduct"—even while reaffirming that "state colleges and universities are not enclaves immune from the sweep of the First Amendment." Papish v. Bd. of Curators of Univ. of Missouri (1973). On the other hand, the Supreme Court has emphasized that its "precedents … leave no room for the view that, because of the acknowledged need for order [in state educational institutions,] First Amendment protections should apply with less force on college campuses than in the community at large," Healy v. James (1972), and further, that academic freedom in a university setting is "a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom," and that universities are "peculiarly the marketplace of ideas." In the same way, we have emphasized "that the dangers of viewpoint discrimination are heightened in the university setting." Gay Lesbian Bisexual All. v. Pryor (11th Cir. 1997).

Second, and separately, the Supreme Court recently limited Tinker's application, even in the high-school setting. It held that "courts must be more skeptical of a school's efforts to regulate off-campus speech" and that "[w]hen it comes to political or religious speech that occurs outside school or a school program or activity, the school will have a heavy burden to justify intervention." Mahanoy Area Sch. Dist. v. B.L. (2021). Accordingly, even if the Tinker framework applied here as a general matter, UCF's policy, which reaches beyond the classroom, may well fall (at least in part) outside of it.

Finally, by its own terms, Tinker's deferential standard doesn't apply to viewpoint-based restrictions like the one we confront here. The Court said there that "[i]n order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint." The Supreme Court has consistently held that the government may not regulate on the basis of viewpoint even within a category of otherwise proscribable speech. So even if UCF could (per Tinker) restrict harassing speech that disrupts the school's functions, it couldn't do so, as it has here, based on the viewpoint of that speech. Put simply, the University can't pick and choose which types of disruptive speech to prohibit.}

Nowhere is free speech more important than in our leading institutions of higher learning. Colleges and universities serve as the founts of—and the testing grounds for—new ideas. Their chief mission is to equip students to examine arguments critically and, perhaps even more importantly, to prepare young citizens to participate in the civic and political life of our democratic republic. It's hardly surprising, then, that the Supreme Court has "long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition." Accordingly, it is imperative that colleges and universities toe the constitutional line when monitoring, supervising, and regulating student expression. Despite what we presume to be the very best of intentions, it seems to us substantially likely that the University of Central Florida crossed that line here….

Here's more detail on the policy:

[The policy] prohibits "discriminatory harassment," which it defines in the following terms:

Discriminatory harassment consists of verbal, physical, electronic or other conduct based upon an individual's race, color, ethnicity, national origin, religion, non-religion, age, genetic information, sex (including pregnancy and parental status, gender identity or expression, or sexual orientation), marital status, physical or mental disability (including learning disabilities, intellectual disabilities, and past or present history of mental illness), political affiliations, veteran's status (as protected under the Vietnam Era Veterans' Readjustment Assistant Act), or membership in other protected classes set forth in state or federal law that interferes with that individual's educational or employment opportunities, participation in a university program or activity, or receipt of legitimately-requested services meeting the description of either Hostile Environment Harassment or Quid Pro Quo Harassment, as defined [below].

Discriminatory harassment may take many forms, including verbal acts, name-calling, graphic or written statements (via the use of cell phones or the Internet), or other conduct that may be humiliating or physically threatening.

The policy, in turn, defines "Hostile Environment Harassment" as follows:

Discriminatory harassment that is so severe or pervasive that it unreasonably interferes with, limits, deprives, or alters the terms or conditions of education (e.g., admission, academic standing, grades, assignment); employment (e.g., hiring, advancement, assignment); or participation in a university program or activity (e.g., campus housing), when viewed from both a subjective and objective perspective.

The policy states that "[i]n evaluating whether a hostile environment exists, the university will consider the totality of known circumstances, including, but not limited to" the following factors:

  • The frequency, nature and severity of the conduct;
  • Whether the conduct was physically threatening;
  • The effect of the conduct on the complainant's mental or emotional state;
  • Whether the conduct was directed at more than one person;
  • Whether the conduct arose in the context of other discriminatory conduct or other misconduct;
  • Whether the conduct unreasonably interfered with the complainant's educational or work performance and/or university programs or activities; and
  • Whether the conduct implicates concerns related to academic freedom or protected speech.

The policy's definition of "Hostile Environment Harassment" goes on to state (1) that "[a] hostile environment can be created by pervasive conduct or by a single or isolated incident, if sufficiently severe," (2) that "[t]he more severe the conduct, the less need there is to show a repetitive series of incidents to prove a hostile environment, particularly if the conduct is physical," and (3) that "an isolated incident, unless sufficiently serious, does not amount to Hostile Environment Harassment."

There is one last piece of the discriminatory-harassment puzzle. Referencing the discriminatory-harassment policy, UCF's Student Handbook states that "[s]tudents are prohibited" not only from engaging in the prohibited conduct themselves, but also from "[c]ondoning or encouraging acts of harmful behavior as defined [in the discriminatory-harassment policy] or failing to intervene during an act of harmful behavior while it is occurring." …

There are other issues in the case as well, but I hope to write about them separately. Congratulations to Cameron Thomas Norris, John Michael Connolly, James F. Hasson, and Daniel Joseph Shapiro of Consovoy McCarthy, PLLC on their victory.