Speech First, Inc. v. Fenves

• Decision Date: 28 October 2020
• Docket Number: No. 19-50529,19-50529
• Citation: 979 F.3d 319
• Parties: SPEECH FIRST, INCORPORATED, Plaintiff - Appellant v. Gregory L. FENVES, In His Official Capacity as President of the University of Texas at Austin, Defendant - Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

979 F.3d 319

SPEECH FIRST, INCORPORATED, Plaintiff - Appellant

v.Gregory L. FENVES, In His Official Capacity as President of the University of Texas at Austin, Defendant - Appellee

No. 19-50529

United States Court of Appeals, Fifth Circuit.

FILED October 28, 2020

REVISED October 30, 2020

William S. Consovoy, Jeffrey Matthew Harris, Cameron Thomas Norris, Consovoy McCarthy P.L.L.C., Arlington, VA, for Plaintiff-Appellant.

Allyson Newton Ho, Russell Harris Falconer, Attorney, Gibson, Dunn & Crutcher, L.L.P., Dallas, TX, Adam Warren Aston, Jackson Walker, L.L.P., Austin, TX, Charles Lynde Babcock, Jackson Walker, L.L.P., Houston, TX, for Defendant-Appellee.

JT Morris, JT Morris Law, P.L.L.C., Austin, TX, for Amicus Curiae Foundation for Individual Rights in Education.

Kimberly S. Hermann, Southeastern Legal Foundation, Roswell, GA, for Amicus Curiae Southeastern Legal Foundation.

Timothy Mason Sandefur, Goldwater Institute, Phoenix, AZ, for Amicus Curiae Goldwater Institute.

Ilya Shapiro, Esq., Cato Institute, Washington, DC, for Amicus Curiae Cato Institute.

Robert E. Henneke, Texas Public Policy Foundation, Austin, TX, for Amicus Curiae Texas Public Policy Foundation.

Gordon D. Todd, Robin Wright Cleary, Attorneys, Sidley Austin, L.L.P., Washington, DC, for Amicus Curiae Alliance Defending Freedom.

Timothy R. Snowball, Attorney, Pacific Legal Foundation, Sacramento, CA, for Amicus Curiae Pacific Legal Foundation.

Erik Scott Jaffe, Esq., Schaerr Jaffe, L.L.P., Washington, DC, for Amici Curiae American Council of Trustees and Alumni, and Independent Women's Forum.

Before KING, JONES, and COSTA, Circuit Judges.¹

EDITH H. JONES, Circuit Judge:

On behalf of a group of students, Speech First, Inc., appeals the dismissal of its First and Fourteenth Amendment challenges to several policies that intend to regulate speech at the University of Texas at Austin. After Speech First sought a preliminary injunction against enforcement of these policies, and the University responded, the district court dismissed the case on the basis that Speech First lacked standing. This conclusion was 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,² sufficient "injury" to ensure that Speech First "has a ‘personal stake in the outcome of the controversy.’ " Susan B. Anthony List v. Driehaus , 573 U.S. 149, 158, 134 S. Ct. 2334, 2341, 189 L.Ed.2d 246 (2014) (quoting Warth v. Seldin , 422 U.S. 490, 498, 95 S. Ct. 2197, 2205, 45 L.Ed.2d 343 (1975) ).

BACKGROUND

Speech First, Inc., ("Speech First") is an organization of free-speech advocates that includes students at the University of Texas at Austin ("the University"). Speech First sued the Defendant-Appellee, Gregory L. Fenves, in his official capacity as president of the University, in December 2018. At that time, the University had promulgated four policies governing students’ speech: (1) the 2018-2019 General Information Catalog, Appendix C, Institutional Rules on Students Services and Activities; (2) the Acceptable Use Policy for University Students (last revised in 2015); (3) the 2018-2019 Residence Hall Manual; and (4) the Handbook of Operating Procedures (revised no later than March 2017). Here are the pertinent portions of the regulations.

1. The Institutional Rules

Fenves describes the Institutional Rules as "bedrock standards to which all University community members must adhere." The Rules’ Chapter 13 is titled "Speech, Expression, and Assembly," and begins generally, declaring the "freedoms of speech, expression, and assembly" to be "fundamental rights of all persons." Section 13-101. This section pronounces students’ (and others’) freedom to "express their views ... on any topic ... subject only to rules necessary to preserve the equal rights of others and the other functions of the University." The section disclaims viewpoint discrimination "[e]xcept as expressly authorized by subchapter 13-200 [titled, "Prohibited Expression"]".

In the next subchapter, "Prohibited Expression" includes paragraphs covering obscenity, defamation, and incitement to imminent violations of law. By far the longest prohibition covers "Harassment," which is the "mak[ing], distribut[ing], or display[ing] on the campus any statement that constitutes verbal harassment of another." "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 the following subsection ["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"];

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; and

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

The Rules elaborate that "[v]erbal harassment may consist of threats, insults, epithets, ridicule, [and] personal attacks," and "is often 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."

Under the Rules, the Dean of Students has primary authority and responsibility for the administration of student discipline, but other University actors play various roles in responding to particular types of alleged violations. Disciplinary sanctions range from written warning to suspension, expulsion, and the denial of a degree.

2. Acceptable Use Policy

The Acceptable Use Policy outlines permitted and prohibited uses of the information technology devices and systems provided and maintained by the University. Under the Policy "[a]ll university students granted access to or use of university Information Resources must be aware of and agree to abide by [certain] acceptable use requirements." Among these "requirements" is:

5.6 Be civil. Do not send rude or harassing correspondence.

1. 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.

2. If you ever feel that you are being harassed, university staff members will assist you in filing a complaint. ...

"The authoritative source on [the Acceptable Use Policy] and responsibility for its implementation rests with the Office of the Associate Vice President and Chief Information Officer," although other offices may be involved in discipline relating to the requirements. The Policy provides a non-exhaustive list of "[p]unishment[s] for infractions of [the requirements]," ranging from "[v]erbal warnings" to "[s]uspension from the university" or "[c]riminal prosecution." The Policy notes that suspension from the University happens to "several people each semester."

On the other hand, the Policy notes, "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.’ " Also: "Disagreements between people, even heated arguments, unless threatening or otherwise unlawful, are not considered violations. UT Austin does, however, strongly encourage all its users to be polite and courteous."

3. Residence Hall Manual

The "Personal Responsibility and Student Conduct" section of the Residence Hall Manual includes sections on "Harassment" and "Incivility."

Under "Harassment," the University states a policy "to maintain an educational environment free from harassment and intimidation" and states a related "commit[ment] 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." "When acts of harassment or intimidation occur in the residence hall environment, the Residence Life staff, in conjunction with the Residence Hall Council, may lead a floor or hall meeting to discuss the incident and decide, as a community, appropriate steps that need to be taken to address the incident." More generally, "[r]esidents who are suspected to have engaged in harassment as defined in the Institutional Rules will be referred to the Dean of Students for possible disciplinary action."

Immediately following, under "Incivility," the University states:

Students are expected to behave in a civil manner that is respectful of their community and does not disrupt academic or residential activity. Uncivil behaviors and language that interfere with the privacy, health, welfare, individuality, or safety of other persons are not permitted.

At the end of the "Personal Responsibility and Student Conduct" section, there is a subsection on the "Conduct Process," which explains the process for "cases that remain in Housing for adjudication." This process may result in "Housing Sanctions," which are "educational measure[s] implemented by the Housing Conduct Board or Residence Hall Conduct Administrator designed to affect [sic] a change in behavior and to help the student understand how their behavior impacted others in the residence hall community." "Sanctions" might include "loss of privileges," "assign[ments]" such as "on-line educational modules, meetings with University staff members, educational/reflection papers, poster assignments, or presentations at hall meetings," or "administrative sanctions" such as a forced room change, fine, or bar on the student's record.

4. Hate and Bias Incidents Policy and CCRT

Finally, within the University's Handbook of operating procedures is the "Hate and Bias Incidents" policy. According to its "Policy...