The Volokh Conspiracy
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Students for Justice in Palestine at Univ. of Florida Denied Preliminary Injunction,
given that the University rejected the Chancellor of the Board of Governors' call for the SJP chapter to be deactivated.
From today's opinion by Chief Judge Mark Walker (N.D. Fla.) in Students for Justice in Palestine at Univ. of Florida v. Rodrigues (see this Oct. 27, 2023 post for more on the background First Amendment issues):
On October 24, 2023, less than three weeks after Hamas's horrific attack on Israel and a spike in antisemitic hate crimes throughout the United States, the Chancellor of the Board of Governors sent a memorandum to each university president in the State University System, including Defendant Ben Sasse, President of the University of Florida. The memorandum described Hamas's attack and linked Hamas's actions to an organization called the National Students for Justice in Palestine, based on statements that the national organization made in response to events in Israel.
The Chancellor cited Florida's criminal law against providing material support to designated foreign terrorist organizations and implied that the national organization violated that statute based on its statements. The Chancellor then identified two student chapters of Students for Justice in Palestine that exist as registered student organizations at two of Florida's state universities. One of those chapters is Plaintiff, Students for Justice in Palestine at the University of Florida. The Chancellor incorrectly described these student chapters as "active National SJP Chapters" that "exist under the headship of the National Students for Justice in Palestine." In bold, the Chancellor stated: "Based on the National SJP's support of terrorism, in consultation with Governor DeSantis, the student chapters must be deactivated."
A week after the Chancellor sent his memorandum, he addressed the matter again at a Board of Governors (BOG) meeting on November 9, 2023. At the meeting, the Chancellor indicated that the student chapters of the Students for Justice in Palestine, including Plaintiff, have constitutions that clearly state that their organizations are not subservient to or under the control of the national organization, as he had suggested in his memorandum. He also indicated that officials at the University of Florida had sought their own legal opinion about deactivating Plaintiff and the opinion raised concerns that officials at the University of Florida could be exposed to personal liability if they deactivated the student organization consistent with Defendant Rodrigues's memorandum.
Plaintiff filed suit about a week after this BOG meeting. Without dispute, the University of Florida has not deactivated Plaintiff as a registered student organization. But Plaintiff asks this Court to decide whether this memorandum and the threat of deactivation that this memorandum arguably represents violates Plaintiff's First Amendment rights to free speech and association.
The court held that plaintiff lacked standing, because it hadn't adequately alleged that its speech was actually abridged by the Chancellor's memorandum (given the University of Florida's decision not to deactivate the group) or chilled:
[To show that] standing exists …, a plaintiff must show (1) that they have suffered an injury-in-fact that is (2) traceable to the defendant and that (3) can likely be redressed by a favorable ruling….
To start, this Court recognizes that it is limited to the record before it in ruling on Plaintiff's motion. And the parties were free to develop this record ahead of the hearing. Indeed, this Court adopted the parties' proposed briefing schedule, accommodated requests to exceed word limits, and did not limit either side in calling live witnesses at the hearing. This Court notes this up top to emphasize it is Plaintiff's burden to demonstrate standing and, as the case law teaches, establishing standing is dependent on the unique facts and context of each case….
Both sides agree that, ultimately, the UF Board of Trustees (BOT) is the entity responsible for directly regulating registered student organizations. Neither the Governor, nor the Chancellor, nor the BOG have the formal power to punish student organizations. The BOG has delegated such regulatory authority to the Boards of Trustees of its constituent universities, and the record is devoid of any evidence that the BOG has taken steps to officially wrest back control. And as for the BOT, this Court finds, based on the record, that at the time of filing, the University of Florida had taken no steps to deactivate Plaintiff following advice from outside counsel suggesting that deactivation would risk opening the BOT members to personal liability.
This Court's finding is based on the fact that nobody introduced any evidence of additional actions the University took in furtherance of the memorandum before Plaintiff filed its complaint. In addition, based on the recording of the November 9th BOG meeting, this Court can reasonably infer that following the transmission of the Chancellor's memorandum, officials at the University of Florida communicated to the Chancellor that his facts were wrong—the University had investigated and learned that Plaintiff is fully autonomous from the national SJP organization—and that the BOT had "liability concerns" with respect to deactivation. In short, this Court finds that the University does not intend to deactivate Plaintiff consistent with the Chancellor's memorandum.
But even if the BOT has not taken any actions in furtherance of deactivation, Plaintiff asserts that the other Defendants need not have the formal power to punish registered student organizations for Plaintiff to have standing against them. As a general legal principle, Plaintiff is correct [at least if it can show that its expression was therefore chilled or that it's facing "a credible threat of prosecution" -EV]…. [But] the record is devoid of any evidence that Plaintiff's members or prospective members have self-censored. Instead, the only evidence before this Court regarding the effect that this threat of deactivation has had on Plaintiff is a declaration from one of its student members that demonstrates only that the organization's members and unidentified prospective members are "scared," "disheartened," and "disappoint[ed]," when it comes to the Chancellor's memorandum…. [T]he only evidence that Plaintiff has come forward with to demonstrate that its members' or prospective members' speech or association is chilled is the statement that "multiple current and potential members of UF SJP are afraid of being punished or investigated by the University or law enforcement because of their participation in our group." But evidence of subjective fear or anxiety, on its own, does not give rise to a cognizable constitutional injury.
This Court does not fault Plaintiff's members for feeling anxious about the fact that the Governor—arguably the most powerful man in Florida—has repeatedly disparaged Plaintiff's members as "terrorists" who support "jihad" and repeated the falsehood that their organization has been "deactivated." But this Court rejects counsel's suggestion that it should infer that because students are fearful, that means that they are going to self-censor or continue to speak under the threat of future punishment—this Court cannot rewrite Plaintiff's declarations to assist Plaintiff in meeting its burden. Plaintiff's suggestion that because someone, even someone cloaked with great power, makes coercive statements that cause college students to fear some hypothetical future harm means they must have standing stretches the injury-in-fact requirement beyond the boundaries that case law has established for standing in First Amendment pre-enforcement challenges. This Court is not free to exceed those boundaries.
In addition, to the extent Plaintiff asserts its board members remain determined to spread their message about the Palestinian people despite their fears of punishment or criminal investigation, the record demonstrates that their fears of punishment or criminal investigation are not reasonable. For starters, Plaintiff has proffered no evidence to raise a reasonable inference that any criminal investigation or prosecution is imminent. Instead, Plaintiff's evidence only demonstrates that the Chancellor's memorandum implied criminal liability based on Plaintiff's association with the national SJP organization, but despite this implication, Plaintiff's board members "are still determined to stand up for [their] morals and spread awareness in [the] community about the rights and cause of Palestinian people."
This might have been a different case had Plaintiff presented testimony from members demonstrating an unusually pronounced law enforcement presence at their meetings following the memorandum or requests for voluntary questioning concerning their organization's activities. Such evidence might demonstrate that authorities were indeed acting in furtherance of the coercive threats from the Governor or the Chancellor…. [Or i]f Plaintiff could point to evidence that the University was taking actions to circumvent its normal procedures for disciplining student organizations following the memorandum, this might also demonstrate that these administrators were cowed by the memorandum and its threat of adverse employment actions for failing to deactivate Plaintiff. But … those are not the facts before me.
In short, the record demonstrates that neither deactivation nor criminal investigation is imminent. Instead, this Court finds that no actions have been taken in pursuit of deactivation under the Chancellor's memorandum. And, as this Court has already found, the Defendants with legal authority to directly regulate registered student organizations do not intend to deactivate Plaintiff. The Chancellor has switched tactics from deactivation to other actions the University might take in lieu of deactivation—but Plaintiff has proffered no record evidence demonstrating that the University of Florida has taken any action based on the Chancellor's statements on November 9th. The Chancellor has also acknowledged that the premise upon which his memorandum is based—that Plaintiff is under the "headship" or control of the national SJP organization—is false, and thus, it is not clear whether the memorandum even continues to apply to Plaintiff.
Ultimately, the evidence before this Court demonstrates that "deactivation" remains simply an amorphous threat contingent upon either the BOT reevaluating its aversion to possibly incurring personal liability or the BOG taking some action to pass a new regulation to take back its delegation of authority over student organizations. Absent any evidence to suggest either of these future contingencies are imminent, the asserted injury of threatened deactivation remains merely speculative. For these reasons, this Court finds that Plaintiff has not met its burden to demonstrate a substantial likelihood of establishing standing for purposes of a preliminary injunction….
