University of Central Florida hit by major free speech ruling – JONATHAN TURLEY
There is a major victory for free speech in the United States Court of Appeals for the Eleventh Circuit this week. An appeals panel ruled that the policies of the University of Central Florida’s (UCF) Discriminatory Harassment and Bias Response Team likely violated the First Amendment. Policies have many common ambiguous terms discussed on this blog from other schools like scary free speech. The decision in First speech against Cartwright also contains an unenviable reliance on UCF’s attorney to prove that his client restricts free speech.
Speech First filed a lawsuit last year and the case was heard by Senior US District Judge Gregory Presnell, who rejected Speech First’s arguments about the discriminatory harassment policy. It also ruled that the group did not have the legal standing to challenge the bias incident policy.
The appeals court overturned Presnell’s denial of a preliminary injunction against UCF’s harassment policy and ordered the district court to review the constitutionality of the UCF’s Bias Response Team.
In the 38-page opinion, Judge Kevin Newsom wrote that the UCF policy “objectively chills speech because its operation would cause a reasonable student to fear expressing potentially unpopular beliefs.” Newsom added (justices Stanley Marcus and Richard Story concurred) that “Given the startling breadth of the discriminatory harassment policy – and its slippery nature – we think it is clear that a reasonable student might worry that his speech will cross him with the university, and that he better shut up.
The court noted that the terms used in the policies defy clear meaning as triggers for violations:
“No reasonable student wants to risk being accused of ‘offensive’, ‘hostile’, ‘negative’ or ‘prejudicial’ conduct – let alone hate or bias. The average student would also not want to run the risk that the university will “track” her, “monitor” her, or mount a “comprehensive response” against her.
However, it was the court’s use of appellate counsel that was so notable in this case. What was remarkable was that it was the defense attorney who was quoted by the court:
“To take just one example, what does it mean for a student’s speech to ‘unreasonably. . . to modify’ another student’s educational experience? The two terms – “unreasonably” and “modify’-are quite amorphous, their application would likely vary from student to student, and approaching the totality of known University circumstances to determine whether a particular speech crosses the line only makes matters worse. To be clear, these concerns are not speculative. During oral argument, we asked the University’s attorney a series of questions about whether particular statements would violate the Discriminatory Harassment Policy: (1) “abortion is immoral”; (2) “open and unbridled immigration is a danger to America on many levels”; and (3) “the Palestinian movement is anti-Semitic”. To his considerable credit, but to the considerable discredit of politics, he candidly admitted that although ‘he d[id] not ring at [him]Since the speech would be prohibited under the policy, he couldn’t say for sure because “the university will consider all the facts and circumstances there” and because he couldn’t “prejudge everything.” Arg at 28:43–33:55 While UCF’s own attorney — as someone intimately familiar with the University’s speech policies — cannot say whether any particular statement would violate the policy, it seems quite fair to conclude that the students of the school can’t either.
Here is the decision: Speech First v. Cartwright