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