Speech First, Inc. v. Fenves, CAUSE NO. 1:18-CV-1078-LY

• Decision Date: 04 June 2019
• Docket Number: CAUSE NO. 1:18-CV-1078-LY
• Citation: 384 F.Supp.3d 732
• Parties: SPEECH FIRST, INC., Plaintiff, v. Gregory L. FENVES, Defendant.
• Court: U.S. District Court — Western District of Texas

384 F.Supp.3d 732

SPEECH FIRST, INC., Plaintiff,

v.Gregory L. FENVES, Defendant.

CAUSE NO. 1:18-CV-1078-LY

United States District Court, W.D. Texas, Austin Division.

Signed June 4, 2019

William S. Consovoy, Pro Hac Vice, Cameron T. Norris, Jeffrey M. Harris, Consovoy McCarthy Park PLLC, Arlington, VA, for Plaintiff.

Adam W. Aston, Sean D. Jordan, Jackson Walker L.L.P., Austin, TX, Charles L. Babcock, Joel R. Glover, Jackson Walker LLP, Houston, TX, for Defendant.

MEMORANDUM OPINION AND ORDER ON MOTION FOR PRELIMINARY INJUNCTION

LEE YEAKEL, UNITED STATES DISTRICT JUDGE

Before the court in the above-styled and numbered cause are Plaintiff's Motion for Preliminary Injunction filed December 21, 2018 (Dkt. No. 8), Defendant Gregory L. Fenves' Response to Plaintiff's Motion for Preliminary Injunction filed January 28, 2019 (Dkt. No. 20), Plaintiff's Reply in Support of its Motion for Preliminary Injunction filed February 4, 2019 (Dkt. No. 25), Defendant Gregory L. Fenves' Objection to the Declaration of Nicole Neily Submitted by Plaintiff in Support of its Motion for Preliminary Injunction filed January 28, 2019 (Dkt. No. 22), Plaintiff's Response to, or in the Alternative Motion to Strike, Defendant's Objections to the Declaration of Nicole Neily filed February 4, 2019 (Dkt. No. 26), Defendant Gregory L. Fenves' Response to Plaintiff's Alternative Motion to Strike Defendant's Objections to the Declarations of Nicole Neily filed February 11, 2019 (Dkt. No. 27), and Plaintiff's Reply in Support of its Alternative Motion to Strike Defendant's Objections to the Declarations of Nicole Neily filed February 18, 2019 (Dkt. No. 28). On March 1, 2019, the court held a hearing on the motions at which all parties were represented by counsel. Having considered the motions, responses, replies, exhibits, applicable law, and the arguments of counsel, the court will deny the motion for the reasons to follow.

I. BACKGROUND

The University of Texas at Austin ("the University") has adopted a number of different policies concerning speech on its campus, some of which are housed in its Institutional Rules, the Residence Hall Manual, and an Acceptable Use Policy. In doing so, the University endeavors to strike a difficult balance between robust protections for its students' First Amendment rights and ensuring a learning environment free from discriminatory and harassing speech or conduct. Plaintiff Speech First, Inc., ("Speech First") is an organization that seeks to preserve the First Amendment rights of college students around the country. Speech First, presumably as part of its mission to preserve students' First Amendment rights, has solicited students in a rather unsavory manner. On its website, it advertised "for $ 5, this free-speech group will help you sue your university for censorship" by "[t]aking aim at schools ‘with a huge endowment and an army of lawyers.’ " It worked. Speech First filed this suit on behalf of three anonymous students at the University—Students A, B, and C—who wish to express unpopular viewpoints about pressing issues of the day, such as illegal immigration, affirmative action, the nuclear family, and the #MeToo Movement. Speech First contends that expressing these unpopular views could be deemed "offensive," "harassing," "uncivil," or "rude" under the University's policies, "thus risking investigation and formal or informal punishment" by the University. Speech First also says that expressing unpopular views "could result in an accusation of a ‘bias incident’ or ‘campus climate incident,’ triggering an investigation by the Campus Climate Response Team and potential formal or informal punishment." Speech First argues that these University policies chill its members' speech and facially challenges these policies under the First Amendment as overbroad and vague.

Speech First seeks a preliminary injunction to enjoin the University from (1) taking any action to investigate, threaten, or punish students for violations of the prohibitions on "verbal harassment," "incivility," "harassment," "intimidation," or "rudeness" found in the Institutional Rules, the Residence Hall Manual, and the Acceptable Use Policy; and (2) using the Campus Climate Response Team to investigate, log, threaten, or punish students for "bias incidents" or "campus climate incidents."

The University counters that Speech First lacks standing to sue because the anonymous students do not face any credible threat of disciplinary action. First, the University maintains that the type of speech at issue here is not prohibited by its policies. Second, the University argues that the students self-censorship is unfounded and their apprehension of disciplinary action illusory. Finally, the University argues that even if Speech First has standing, Speech First does not meet its burden in showing that it is likely to succeed on the merits.

A. The Institutional Rules ("the Rules")

Chapter 13 of the Rules governs all speech, expression, and assembly that takes place on campus, and students who violate the Rules may be subject to disciplinary action by the University. The chapter begins by broadly pronouncing: "[t]he freedoms of speech, expression, and assembly are fundamental rights of all persons and are central to the mission of the University." With this mission in mind, the Rules prohibit "any statement that constitutes verbal harassment of any other person." Verbal harassment is defined as hostile or offensive speech, oral, written, or symbolic, that:

(A) is not necessary to the expression of any idea described in subsection 13–204(b)(2);

(B) is sufficiently severe, pervasive, or persistent to create 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;

(C) and personally describes or is personally directed to one or more specific individuals.

The prohibition on verbal harassment provides a very important caveat. Verbal harassment does not include "an argument for or against the substance of any political, religious, philosophical, ideological, or academic idea is not verbal harassment, even if some listeners are offended by the argument or idea." The Rules also provide several examples: "verbal harassment may consist of threats, insults, epithets, ridicule, personal attacks" and may be based on "the victim's appearance, personal characteristics, or group membership, including but not limited to race, color, religion, national origin, gender, age, disability, citizenship, veteran status, sexual orientation, gender identity or gender expression, ideology, political views, or political affiliation." Finally, the Rules specify that the prohibition on verbal harassment "does not exhaust the category of speech that is unnecessary and inappropriate to vigorous debate in a diverse community of educated people," but that such categories are "community norms," which "cannot be enforced by disciplinary rules."

B. The Acceptable Use Policy

The University maintains Internet technology resources, including computer devices, applications, email addresses, and Internet access. The Acceptable Use Policy ("the Policy") governs how students must use these services, and all students using these services must agree to comply with the Policy. Should a student violate the Policy, the student may receive verbal warning, revocation of access privileges, disciplinary probation, suspension from the university, and criminal prosecution. The Policy encourages students to "be civil" and not send "rude or harassing correspondence." The Policy reasonably advises that "if someone asks you to stop communicating with him or her, you should. If you fail to do so, the person can file a complaint and you can be disciplined."

The Policy also contains several limitations on its request for civility. For example, in a section entitled "What are my First Amendment rights," the University makes clear that it "place[s] great value on freedom of thought and expression." Because "[t]he University community encompasses a wide array of opinions, views, approaches, and temperaments ... [w]e do not punish or prevent expression that may be offensive but that violates no specific law or university regulation." The Policy also puts students on notice of their free speech rights:

In general, expressions of opinion by members of the University community that do not otherwise violate state and federal laws or university rules are protected as ‘free speech.’ This is true even though the opinions expressed may be unpopular or offensive to some.... We encourage all those associated with the University to exercise their constitutional rights and freedoms responsibly. We do not, however, punish people who express views that may be unpopular or offensive, but who break no laws or University rules while doing so.

The Policy finally states that "[d]isagreements between people, even heated arguments, unless threatening or otherwise unlawful, are not considered violations .... [The University] does, however, strongly encourage all its users to be polite and courteous."

C. The Residence Hall Manual ("the Manual")

The Manual contains two policies governing "harassment" and "incivility." First, it states that "[m]embers of an educational community should adhere to standards of civility and good taste that reflect mutual respect." It also makes clear that "[i]t is the policy of the University to maintain an educational environment free from harassment and intimidation." As part of "an effort to foster an environment free from harassment and intimidation," the University explains that "Residence Life is committed to responding appropriately to acts of racism, sexism, heterosexism, cissexism, ageism, ableism, and any other force that seeks to suppress another individual or group of individuals." If such acts occur in a residence hall, "the Residence Life staff, in conjunction with the Residence...