The Volokh Conspiracy

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Free Speech

First Amendment Protects Sign at University Saying "God Created Male and Female and Artemis Langford Is a Male"

Langford had been in the news for joining a sorority, which has caused a good deal of controversy at the University of Wyoming.


From Schmidt v. Siedel, decided yesterday by Judge Nancy Freudenthal (D. Wyo.) (see also the coverage in Cowboy State Daily (Clair McFarland), and this post about a pseudonymity issue in a lawsuit stemming from the sorority controversy):

Schmidt is an elder at the Laramie Faith Community Church…. He has reserved a table in the UW Union breezeway on a regular basis for the past 17 years. The UW Union allows campus groups and various outside organizations to utilize breezeway tables to communicate with students. The breezeway tables provide access to a high degree of student pedestrian traffic. Schmidt uses his breezeway table to display various DVDs and books. He also places on his table a Velcro-backed sign with plastic lettering to display different messages.

According to UW Officials, they have over the years warned Schmidt to stay behind his breezeway table and not engage in a confrontational manner towards passersby. The University alleges it has received and documented complaints from students that Schmidt "got in people's faces" while trying to talk to them and chased after students who refused to speak with him. Schmidt states that he was not aware of any student complaints to University staff about him and received no warning from the University regarding student complaints.

In September of 2022, a UW student named Artemis Langford joined a UW sorority. Langford was born a biological male but identifies as female. In October, the UW university newspaper, the Branding Iron, ran a story about Langford joining the sorority, and included quotes from Langford. Other publications, including the Cowboy State Daily, Washington Examiner, and National Review, ran articles about Langford as the first openly transgender student in UW history to join a sorority.

Schmidt disagrees with the propriety of transgender students joining sororities, and on December 2, 2022, he placed a sign at his breezeway table in the Union stating, "God created male and female and Artemis Langford is a male." Various students gathered in front of his table in an attempt to block others, and Langford, from seeing Schmidt's sign. {Artemis Langford is both a UW student and an employee in the Wyoming Union.} These students engaged in tense debate with Schmidt.

UW Dean of Students Ryan O'Neil asked Schmidt to remove Langford's name from his sign because it violated Article II Section 2.B.4 of the UW Union policies {"Requests [for table space at the WY Union] may be denied for reasons which include, but may not be limited to, conflict with the mission of the University, conflict with the mission of the Wyoming Union, unfeasible setup/turnaround time, and historic negligence or abuse."}, and because it targeted an individual University student in a protected class. Schmidt initially refused to remove Langford's name; however after O'Neil responded that she would call University Police, he agreed to remove Langford's name. O'Neil left and Schmidt continued to speak with students from his table.

On December 5, 2022, UW President Edward Seidel sent out an email message to the UW community regarding the tabling incident. He stated that Schmidt had removed Langford's name from his sign when asked and that "while [Schmidt] engaged in heated exchanges with students and perhaps others throughout the afternoon, these interactions, were not in obvious violation of UW policies." Seidel went on to encourage community members to "engage regarding those with different perspectives with respect and integrity."

Various student groups felt disappointed with Seidel's response and on December 7, 2022, a UW alumni group sent a letter to Seidel disagreeing with his statement that Schmidt had not broken any UW policies. The letter recounted prior incidents in which Schmidt had allegedly yelled at and harassed students regarding their sexual identities. The letter asked Seidel to ban Schmidt from tabling in the UW Union. They stated that if he did not do so they would resign from alumni memberships, withhold donations to the University, and refuse to return to campus for future activities.

Later that day, Dean O'Neil sent Schmidt a letter suspending his ability to reserve a table in the UW breezeway until Spring 2024. She also reminded him to adhere to University policies or risk trespassing. She based this decision on a December 7th report from the University's Equal Opportunity Report and Response Office which stated that Schmidt had violated UW Regulation 4-2 (Discrimination and Harassment) and noted that his behavior was "on a trajectory which, if continued, is likely to also create a hostile environment." {UW Regulation 4-2 defines … ["harassment" as "Verbal or physical conduct that unreasonably interferes with an individual's work or academic performance or creates an intimidating or hostile work or educational environment.["]}

Dean O'Neil also cited the Wyoming Union Policies and Operating Procedures Article II Section 5.B.15 which prohibits discrimination or harassment and requires individuals tabling in the Union to bring views in a respectful and civil manner. Lastly, she referenced prior multiple verbal warnings to Schmidt for previous student complaints. Although Schmidt is unable to reserve a table in the breezeway until Spring 2024, he is not banned from campus, nor the Union building….

This likely violated Schmidt's First Amendment rights, the judge concluded, and therefore issued a preliminary injunction that "enjoins [university officials] from censoring Schmidt's views on the sexual identity of Artemis Langford and enjoins the application of the ban on tabling currently in effect."

Discriminatory harassment at a university is primarily governed by Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972. "Hostile environment" harassment cases first originated in the workplace. To bring a Title VII action for sexual harassment in the workplace, the harassment must be "must be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." To determine if an environment is hostile the court examines the "frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance."

The Supreme Court extended these Title VII hostile environment cases to the Title IX context in Davis v. Monroe County Board of Education (1999), holding that "a plaintiff must show harassment that is so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims' educational experience, that the victims are effectively denied equal access to an institution's resources and opportunities."

In Bostock v. Clayton Cnty., Georgia, the Supreme Court ruled that Title VII extended to situations in which "an employer … intentionally treats a person worse because of sex—such as by firing the person for actions or attributes it would tolerate in an individual of another sex."

These cases thus focus primarily on conduct, rather than pure speech. See also R.A.V. v. City of St. Paul (1992) ("Where the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy.") "[N]on-expressive, physically harassing conduct is entirely outside the ambit of the free speech clause." Saxe v. State Coll. Area Sch. Dist. (3d Cir. 2001). However, where "pure expression is involved, anti-discrimination law steers into the territory of the first amendment." "'Harassing' or discriminatory speech, although evil and offensive, may be used to communicate ideas or emotions that nevertheless implicate First Amendment protections." There is no "categorical 'harassment exception' to the First Amendment's free speech clause." …

Here, the facts do not demonstrate harassment under the Davis standard, i.e., harassment so severe, pervasive, and objectively offense that it denies the victims' equal access to an institution's resources and opportunities. Schmidt engaged in tense debate with students regarding the propriety of a biological male joining a sorority. He did not engage directly with Artemis Langford. His sign was pure speech and not conduct. Furthermore, Schmidt's speech does not meet the University's own definition of discrimination of harassment. There is no evidence Langford suffered any adverse consequences or experienced interference with academic or work performance.

Nor does Schmidt's speech meet the lesser Tinker standard of "substantial disruption" or "invasion of the rights of others." The University puts forth no evidence of either. Various students were upset by Schmidt's speech, but the "'mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint' cannot justify the prohibition by school officials of a particular expression of opinion".

Schmidt's speech was expressive, with the intent to convey a particular message. Schmidt mentions Artemis Langford by name, but that is unavoidable, as the debate revolves around the propriety of a particular biological male participating in an activity— joining a sorority—traditionally reserved for biological females. Schmidt does not misgender Langford to denigrate her, but to debate a public issue. Normally, mentioning a student by name or ignoring a student's requested pronouns has low expressive value. Outside of a debate about gender, misgendering is of limited communicative value.

Here Schmidt's speech is part of an earnest debate about gender identity, a matter of public importance. "Gender identity … [is a] sensitive political topic[] and … undoubtedly matter[] of profound value and concern to the public…. Such speech occupies the highest rung of the hierarch of First Amendment values and merits special protection." "Speech on matters of public concern is at the heart of the First Amendment's protection.  [I]t is the essence of self-government." This is particularly true on college campuses because they are the "marketplace of ideas." While elementary and public schools prioritize the inculcation of social values, universities seek to encourage inquiry and the challenging of a priori assumptions.

Therefore, this Court finds that Schmidt's speech is protected free expression and not harassment or discriminatory conduct.

The court went on to conclude that the "because University breezeway tables are not open to the general public and a reservation is required for use, this Court finds that the breezeway tables are a limited public forum," where the government as property owner may impose reasonable and viewpoint-neutral restrictions. But it concluded that the restriction imposed by the university was likely viewpoint-based, and thus impermissible even in a limited public forum:

Here, Schmidt wishes to express his viewpoint that Artemis Langford is a male and to debate the propriety of Langford's participation in a sorority. This is a viewpoint. The University counters that it allowed Schmidt to keep the remainder of his sign that did not contain Langford's name. However, without Langford's name Schmidt is unable to fully express his views regarding Langford's sex specifically. Students approached Schmidt's table to debate his views on Langford's sex. Presumably some of these students have views opposed to those of Schmidt and believe that Langford is female and belongs in a sorority. There is no indication that those students were prohibited from debating Schmidt or speaking Langford's name. Therefore, the University appears to be favoring one viewpoint over another….

{The granting of Schmidt's preliminary injunction does not diminish the University's ability to sanction possible future misbehavior by Schmidt, such as continuing to engage with students who do not wish to speak with him.}

I think this is the correct result, though I am even more skeptical of attempts to recharacterize speech as "harassment" than the judge is (see here). Note that a policy categorically forbidding outside groups from mentioning students by name might be seen as permissibly viewpoint-neutral; but that wasn't the policy here: Saying that Langford is a woman and not a man wouldn't have been forbidden; likewise as to, for instance, condemning by name one of the students challenging Langford's admission to the sorority.

Schmidt is represented by Douglas J. Mason (Mason & Mason) and Nathan W Kellum (Center for Religious Expression).