Colleges and universities all across the country have been cracking down on what they call “offensive speech” to keep students in line.
That’s keeping University of Illinois graduate Nicole Neily and her organization — Speech First — much busier than she anticipated.
Niely joked that she once expected to “work myself out of a job,” but that “there are free-speech problems all over the place” on campuses these days.
On the heels of setback in First Speech’s lawsuit challenging UI speech enforcement policies, her organization recently picked up a big win when the 5th U.S. Circuit Court of Appeals reinstated the organization’s lawsuit against the University of Texas.
But the unanimous three-judge panel did more than reinstate a lawsuit dismissed on spurious grounds by a trial judge. It delivered a lengthy opinion that challenged the whole idea of universities adopting vague rules regulating speech, encouraging students to file anonymous complaints against each other and enforcing speech-code violations with Campus Climate Response Teams.
Writing for the court, Justice Edith Jones was openly skeptical of Texas’ claim that it would never punish students for making “rude,” “uncivil” and “offensive” statements on controversial issues.
“If there is no history of inappropriate or unconstitutional past enforcement, and no intention to pursue discipline against students under these policies for speech that is protected by the First Amendment, then why maintain the policies at all?” Jones wrote in a 32-page decision.
Campus speech codes, generally, have not fared well in the courts, mostly because they seek to regulate speech with unconstitutionally vague rules that lay the groundwork for barring any speech on a contentious campus issue.
Jones’ opinion noted that the most common subject of speech complaints on the Texas campus involves issues related to Israel and affirmative action. Those two hot-button topics generate heated emotions on all sides of the arguments, making them fertile ground for complaints about language used and arguments made.
The university tried to evade the federal court’s reach, arguing that Speech First members who are students have no legal standing to challenge campus speech codes. The university also argued that the lawsuit was moot because it modified some of the disputed language in its multiple sets of rules.
U.S. Judge Lee Yeakel bought the university’s argument on standing, but the appeals court said his conclusion was simply “mistaken.”
“The chilling effect of allegedly vague regulations, coupled with a range of potential penalties for violating the regulations was, as other courts have held, sufficient injury to ensure that Speech First has a personal stake in the outcome of the controversy,” she wrote.
Ironically, the UI won on the standing issue before the 7th Circuit Court of Appeals after U.S. Judge Colin Bruce dismissed the lawsuit. Neily said Speech First is considering whether to ask the U.S. Supreme Court to review the dismissal.
Given conflicting rulings in different federal circuits, the normally long odds against the high court deciding to hear the case are not quite as long.
Both the Universities of Michigan and Illinois have tried to evade a courtroom showdowns on their speech codes.
After Michigan lost on the standing issue, it reached an out-of-court settlement with Speech First in which it agreed to dismantle and never reinstate its campus Bias Response Team.
Regarding the issue of mootness, the appeals court justices were skeptical that Texas would not reinstate more restrictive speech rules if the justices accepted its argument that the lawsuit was moot.
Noting that Texas described its disciplinary speech rules as “bedrock standards to which all university community members must adhere,” the appeals court said it found the timing of the university’s adoption of more specific language to be “suspicious.”
Jim Dey, a member of The News-Gazette staff, can be reached at firstname.lastname@example.org or 217-351-5369.