March 4, 2020
By Matt Miller
This week, the Fifth
Circuit Court of Appeals heard oral
argument in Speech First v. Fenves, which involves a challenge to a
set of speech-chilling rules at the University of Texas at Austin. Speech First
is a nonprofit organization with an institutional mission of promoting free
speech on college campuses by challenging unconstitutional restrictions on that
speech.
In this case, that
primarily meant challenging the University’s creation of so-called “campus
climate response teams,” the purpose of which is to investigate allegations of
“incivility,” “harassment,” and “rudeness” on campus. Those investigations are
launched by student complaints, which have few restrictions on how or when they
can be filed. This thereby creates a system under which students can constantly
police one another’s speech by filing complaints. And the investigations
launched by those complaints can result in punishments ranging from censure to
criminal charges. This creates an environment in which students must live in
fear that someone will file a complaint that will eventually ruin their lives—all
because someone disagreed with something they said.
The district court
ruled dismissed Speech
First’s challenge to these rules by declaring that the group lacked
standing to bring its case. According to the district court, Speech First had
identified “only broad categories of speech in which [the student plaintiffs]
wish to engage,” rather than “specific statements they wish to make.” It also
noted that University President Gregory Fenves had submitted a declaration that
the University had “no … history of punish[ing]” students for protected
speech. Speech First appealed and, after briefing both by the parties and many
amici curiae, the Fifth Circuit held oral argument earlier this week. (The
Goldwater Institute filed
an amicus brief in the case.)
It is always risky to
try and read the tea leaves of appellate oral argument, but things seemed to go
well for Speech First. The panel seemed to agree with the group’s primary
contention that one does not need to wait for his or her free speech rights to
be violated before they can bring suit under the First Amendment. The
University argued otherwise, claiming that the harm must be “certainly
impending” before a group like Speech First could challenge a policy. Judge
Edith Jones seemed to reject this argument. “It cannot be the case,” she said,
“that you can only protect your First Amendment rights once your First
Amendment rights have been deliberately interfered with.”
The disagreement
between Judge Jones and the University highlights an important issue that
exists in many modern First Amendment cases: If the government enacts a policy
that opens you up to ideological harassment and intimidation, how much harm
must you suffer before you can sue to defend your constitutional rights?
In addition to campus
speech cases like this one, the issue comes up in cases involving disclosure of
nonprofit donors. (The Goldwater Institute is currently litigating donor
disclosure cases in Santa
Fe, New Mexico, and Denver,
Colorado.) In donor disclosure cases, the issue is whether the government can
force nonprofit groups to disclose their donors when those groups speak about
ballot measures and other legislation. Nonprofits argue that requiring such
disclosure opens nonprofit donors up to harassment and intimidation from their
ideological opponents since the government literally publishes donor names on a
list on the internet. This forces nonprofits to make an unconstitutional
choice: Speak, and expose your donors; or remain silent. The government, on the
other hand, usually argues that groups lack standing to sue unless they have
endured actual harassment. In other words, according to the government, you
have to wait until your donors have their cars keyed, houses egged, or safety
threatened before you can sue to defend your First Amendment rights.
Judge Jones is correct:
This cannot be the constitutional rule and, indeed, it is not. The government
cannot dream up ways to chill your speech, then make you wait until you have
been harmed, as a result of your speech, before you can defend your rights.
Matt Miller
is a Senior Attorney at the Goldwater Institute.
