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Fifth Circuit Delivers a Win for Free Speech

October 30, 2020

October 30, 2020
By Timothy Sandefur

Across the nation, public universities are imposing ever-more disturbing limits on the freedom of students to express their ideas, often under the guise of anti-“harassment” policies. These restrictions often take the form not of outright prohibitions on expression, but of amorphous rules against being “offensive” or “demeaning.” What such rules mean is often in the eye of the beholder—which is just what’s dangerous about them. Vagueness increases the power of enforcement officials—who can decide unpredictably what does and doesn’t violate the rules—and frightens people into staying silent, since they can’t know where the lines are.

Lawyers call this self-censorship a “chilling effect,” and a ruling this week from the Fifth Circuit Court of Appeals sends a warning to the University of Texas that the First Amendment will not allow government officials to “chill” speech by students and professors.

The lawsuit, brought by a pro-freedom group called Speech First, challenges a group of university policies that prohibit “offensive,” “biased,” “rude,” or “uncivil” speech, as well as speech that “create[s] an objectively hostile environment that interferes with or diminishes the victim’s ability to participate in or benefit from the services, activities, or privileges provided by the University.” These terms are all so vague that Speech First—whose members include people who hold generally conservative political and social views—could not know what was and wasn’t prohibited, which is precisely the “chilling effect” that the First Amendment is concerned with.

But when Speech First sued, a trial judge dismissed the lawsuit, on the grounds that there wasn’t enough evidence that the University had punished people for their speech. And the University insisted that the policy was really intended to protect speech by preventing “bias” and “hostility.”

Speech First appealed, and the Goldwater Institute, along with our friends at the Cato Institute and the Texas Public Policy Foundation, filed a friend of the court brief in support. We pointed out that campus officials nationwide regularly penalize conservative and libertarian students—punishing them, forcing them to apologize, or revoking funding for student clubs—due to the content of their speech. In 2017, a conservative student at Rollins College in Florida was suspended for objecting to a Muslim student’s statement endorsing the beheading of homosexuals. Months before that, a student at the University of Houston was threatened with suspension for posting on Facebook “Forget #BlackLivesMatter: More like AllLivesMatter.” A student at Orange Coast College in California was suspended for video-recording a professor who went on a classroom tirade denouncing President Trump and was forced to apologize. In these and many other cases, students have been punished or threatened with official sanctions for expressing their beliefs in ways public school administrators don’t approve.

This week, the Fifth Circuit Court of Appeals overturned the trial judge’s ruling and allowed the case to proceed. There was plenty of evidence, the judges said, that students were being penalized for speech under the University of Texas’s policy. In fact, “the University’s public log of bias incidents [shows] that the Hate and Bias Incidents Policy has been resorted to countless times regarding hundreds of events since 2012. Significantly, the largest numbers of reported complaints have related to Israel and affirmative action, two topics on which Speech First member[s]…intend[] to speak.”

And no wonder: The rules are so ambiguous. “The Institutional Rules’ definition of verbal harassment consumes nearly a full page of small type,” wrote the court.

This alone might raise questions about vagueness, but the uncertainty is magnified by the University’s caveat that: “Verbal harassment has been interpreted very narrowly by the federal courts. Policies on verbal harassment or hate speech at many universities have been held unconstitutional….  This policy should be interpreted as narrowly as need be to preserve its constitutionality….” [W]hat does this mean? Surely it reasonably implies that the University will protect and enforce its verbal harassment policy as far as possible, but the distance to that horizon is unknown by the University and unknowable to those regulated by it.

The decision is a welcome reminder that government restrictions on free speech aren’t just a threat to those who are clearly targeted, but also to those who might feel intimidated into remaining silent just when their voices should most be heard. That, in fact, is just the goal of those who advocate for censorship—and it is imperative for the survival of liberty that government respect the freedom of speech.

Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.



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