There is a major victory for free speech out of the United States Court of Appeals for the Eleventh Circuit this week. An appellate panel ruled that the discriminatory-harassment and bias response team policies at the University of Central Florida (UCF) likely violate the First Amendment. The policies have many of the common ambiguous terms discussed on this blog from other schools as chilling free speech. The decision in Speech First v. Cartwright also contains an unenviable reliance on UCF’s own counsel for proving that his client is curtailing free speech.
Speech First filed the lawsuit last year and the case was heard by Senior U.S. District Judge Gregory Presnell who rejected Speech First’s arguments on the discriminatory-harassment policy. He also ruled the group did not have legal standing to challenge the bias-related incidents policy.
The appeals court overturned Presnell’s rejection of a preliminary injunction against UCF’s harassment policy and ordered the district court to consider the constitutionality of UCF’s bias response team.
In the 38-page opinion, Judge Kevin Newsom wrote that the UCF policy “objectively chills speech because its operation would cause a reasonable student to fear expressing potentially unpopular beliefs.” Newsom added (with agreement from Judges Stanley Marcus and Richard Story) that “Given the discriminatory-harassment policy’s astonishing breadth — and slipperiness — we think it clear that a reasonable student could fear that his speech would get him crossways with the university, and that he’d be better off just keeping his mouth shut.”
The court noted that terms used in the policies defy clear meaning as triggers for violations:
“No reasonable college student wants to run the risk of being accused of ‘offensive,’ ‘hostile,’ ‘negative,’ or ‘harmful’ conduct — let alone hate or bias. Nor would the average college student want to run the risk that the university will ‘track’ her, ‘monitor’ her, or mount a ‘comprehensive response’ against her.”
However, it was the court’s reliance on appellate counsel that was so notable in this case. What was notable was that it was defense counsel being cited by the court:
“To take just one example, what does it mean for one student’s speech to ‘unreasonably . . . alter’ another student’s educational experience? Both terms—’unreasonably’ and ‘alter’—are pretty amorphous, their application would likely vary from one student to another, and the University’s totality-of-known-circumstances approach to determining whether particular speech crosses the line only makes matters worse. To be clear, these concerns aren’t speculative. At oral argument, we asked the University’s lawyer a series of questions about whether particular statements would violate the discriminatory-harassment policy: (1) ‘abortion is immoral’; (2) ‘unbridled open immigration is a danger to America on a variety of levels’; and (3) ‘the Palestinian movement is antisemitic.’ To his considerable credit—but to the policy’s considerable discredit—he candidly acknowledged that while ‘it d[id] not sound to [him]’ like the speech would be proscribed under the policy, he couldn’t say for sure because ‘the university will consider all the facts and circumstances there’ and because he couldn’t ‘prejudge everything.’ Oral Arg. at 28:43–33:55. If UCF’s own attorney—as one intimately familiar with the University’s speech policies—can’t tell whether a particular statement would violate the policy, it seems eminently fair to conclude that the school’s students can’t either.”
Here is the decision: Speech First v. Cartwright
20 thoughts on ““Better Off Just Keeping His Mouth Shut”: University of Central Florida Hit With Major Free Speech Ruling”
I guess it’s really depends on full circumstances, so the “particular statement would violate the policy, it seems eminently fair to conclude that the school’s students can’t either.” part is pretty fair. Hope students can express their opinion freely. As aprofessional research paper writer, I often meet complaints on the “not right opinion” in tasks that are creaed to express one. Freedom of speech is important. But it still can not be an imposition of one’s opinion.
“Better Off Just Keeping -YOUR- Mouth Shut”
DHS Creating ‘Disinformation Governance Board’ Ahead Of Midterms
1. Freedom of Speech – The University of Central Florida is a public university and must strictly adhere to the Constitution and Bill of Rights, including the 1st Amendment freedom of speech, in so far as related speech is not disruptive or injurious.
2. Private Property – UCF is not private property, over which only the owner may “claim and exercise” dominion.
Public poles tell us that the American people are coming to a new realization, but rest assured the Totalitarian sex worshippers will not go down without a fight. Many dollars are yet to be laid at the feet of Aphrodite.
People asking how the lower court court have ruled against the plaintiff are forgetting that are three members of SCOTUS that would have voted the same way. These three leftists, I am including Jackson as a member of the Court rather than Breyer, will twist into a pretzel in order to make the end justify the means. Take a look at some of Sotomeyer’s decisions and reasoning and tell me that she is worthy of being on the Court.
I’m assuming you mean “NOT” worthy of being on the Court
To be fair, she did vote with all 7 others (Gorsuch wasn’t on the bench for the hearing) in Matal v. Tam that offensive speech is protected speech, and that the government cannot practice viewpoint discrimination.
“o his considerable credit—but to the policy’s considerable discredit—he candidly acknowledged that while ‘it d[id] not sound to [him]’ like the speech would be proscribed under the policy, he couldn’t say for sure because ‘the university will consider all the facts and circumstances there’ and because he couldn’t ‘prejudge everything.’ Oral Arg. at 28:43–33:55. If UCF’s own attorney—as one intimately familiar with the University’s speech policies—can’t tell whether a particular statement would violate the policy, it seems eminently fair to conclude that the school’s students can’t either.”
Ah, the perils of defending the stupid client! Kudos to this appellate lawyer for adhereing to his oath to the Constitution and, in those rare circumstances where the situation requires, defining “zealous representation” as pointing out that your client is a numbnut. Not good for business but damn good for society, truth and the law. We’re not your monkey’ we’re your advocate!
if the incoming Supreme Curt Justice, who will be compelled to decide cases involving sex (or gender) discrimination can’t even define what a woman is, why should UCF’s attorney be criticized for dancing around a much more complex question?
My concern is how could the lower court judge have been so off the mark. That judge, Presnell, was appointed by Clinton. The appeals panel that overruled him consists of Trump and Reagan appointees and a Clinton nominee.
We nned to know who, precisely, was responsible for this outrageous rule at UCF The bureaucrats, like faceless Nazi’s, make rules that impact the population and bear no responsibility.
Florida is fast becoming the Alamo for constitutional right’s.
Such incredible common sense and from an appeals court. And then we get to the Constitution. There is hope.
Only as long as judges exist with brain cells which actually work.
Thank God they still exist.
Agreed, but if our nations future rests on black robes, then it’ll take more than God’s help will come in the end of the republic..
It will require that citizens continue to stand up to the bullying and insanity that is being orchestrated in our schools and by the government. This is nothing less than an outright attack on our way of life and our civilization.
With all its warts and blemishes, the United States is unique and wonderful. At our foundation, it is the individual citizen that is to be empowered against despots and elites. Apparently, they don’t like it that way. It is they who should tip their hat at us when we meet in the street.
I can’t hear all the BS about climate change, political topics du jour or gender issues when the über rich jet around in personal aircraft using that dirty fossil fuel, eating steaks and visiting their numerous beachfront mansions and mountain retreats, what would Greta say? “How dare you!”
My father would say, “Engage your brain.”
“I could while away the hours
Conferrin’ with the flowers,
Consulting with the rain;
And my head I’d be a scratchin’
While my thoughts are busy hatchin’
If I only had a brain.”
With all its warts and blemishes, the United States is unique and wonderful. At our foundation, it is the individual citizen that is to be empowered against despots and elites.
I tried to explain England, Great Britain and their historical governing model to my 12 year old Grand daughter. It was a real eye opener to me about the unique power, ‘we the people’ have, as compared to the rest of the world.
Now if only we would teach that in school.
If you could explain it to your grand-daughter, then you can explain it to others. Maybe you could work with Prof. Turley or VIctor Davis Hanson (https://twitter.com/VDHanson) to come up with a textbook?
Is the momentum shifting?
Well reading this opinion sure provides one hope. I think I might be a little happier after reading this.