Speech Code Hokey Pokey: How Campus Speech Codes Could Rebound

This article appeared in The Volokh Conspiracy.

Yesterday, we showed how speech codes are consistently struck down by courts. Today, we look at two ongoing cases that threaten to curb that trend by expanding the doctrine of mootness while narrowing what qualifies to establish standing.

In May, the U.S. District Court for the Northern District of Georgia dismissed Uzuegbunam v. Preczewski, a First Amendment lawsuit filed by a student (represented by the Alliance Defending Freedom) against Georgia Gwinnett College. Uzuegbunam was stopped from distributing religious literature on campus because he didn't have a permit to do so outside of two small free speech zones. The district court found that Uzuegbunam's claims for injunctive and declaratory relief were moot — in part because the school had modified its policy, and in part because Uzuegbunam had graduated before the case had come to trial.

The court went on to dismiss plaintiffs' claims for nominal damages, all other claims being moot:

In this particular case, where Plaintiffs' constitutional challenges to the governmental policies are now moot, where the Court can grant Plaintiffs no practical relief in the form of an injunction or a declaratory judgment, and where Plaintiffs did not plead for compensatory damages, the lone remaining claim of nominal damages is insufficient to save this otherwise moot case.

(Slip op. at 22.) The case is being appealed, and FIRE has filed an amicus curiae brief in support of the plaintiffs. If it is allowed to stand, however, the district court's ruling that nominal damages cannot sustain an action where injunctive and declaratory claims are mooted because of graduation or voluntary policy change will make it very difficult for a student to challenge a speech code.

It's important to understand that nominal damages are frequently sought by plaintiffs in First Amendment cases. As we summarized in our brief:

Nominal damages compensate plaintiffs for violations of their constitutional rights absent "proof of actual injury." As the Supreme Court of the United States recognized in Carey [v. Piphus], it is through nominal damages that "the law recognizes the importance to organized society that those [absolute] rights be scrupulously observed." … Nominal damages do more than vindicate a plaintiff's constitutional right; indeed, "a plaintiff who wins nominal damages is a prevailing party [for purposes of recovering attorney's fees] under § 1988."

(Citations omitted.)

Most students at four-year nonprofit colleges graduate within four years. Meanwhile, the median time it took a federal district court to complete a trial in 2015 was 25.2 months. If graduation moots both injunctive and nominal damages claims against a school, as the Uzuegbunam court ruled, a community college student would almost never keep standing long enough to complain about First Amendment violations. And that's just the trial court decision. Adding in the time it takes for an appeal, even a student with the questionable "good luck" to have his rights violated on the first day of classes is unlikely to maintain his student status through an appellate review.

What about the modification of the policy? Since day one, nearly every time FIRE contacts a school about a restrictive speech code, the college says it was already "under review." (Apparently, that's the kind of review that involves doing nothing until someone notices.) But more importantly, dismissing a case because a school voluntarily withdraws a bad policy (but does not admit it was unconstitutional) rewards what Adam likens to the Speech Code Hokey Pokey: When the complaint appears, you pull your bad policy in. When the case is moot, you put your bad policy out. Then you take the civil rights of the students and you shake them all about. (This way, you'll never have to turn your censorship around — that's what it's all about.)

And colleges have a history of not-quite-abandoning a bad policy, or moving from one bad idea to another. Pennsylvania's Shippensburg University settled a lawsuit in 2004, only to reinstate some of those codes that led to a second lawsuit, settled in 2008. California's Peralta Community College District settled a 2010 lawsuit about interfering with student prayer, then immediately considered a restrictive restrictive "free speech zone" policy calculated to achieve the same end. In 2003, FIRE coordinated a lawsuit against California's Citrus College over its free speech zones, which its board resolved by rescinding the policies; in 2013, FIRE would sue them again for the same type of restrictive policy, a case they settled.

But mootness is only one of two procedural hurdles that seem to be rising to prevent students from meeting them. The other is standing, and the case demonstrating that threat to civil rights is the Fourth Circuit's recent decision in Abbott v. Pastides. (This case is part of FIRE's Stand Up for Speech Litigation Project.)

The facts of Abbott arose at the University of South Carolina in the fall of 2015. Members of the campus chapters of Young Americans for Liberty and the College Libertarians, including Abbott, put up posters on campus with examples of censored speech from other campuses. Three students complained that the posters were "offensive" and "triggering." Administrators sent Abbott, one of the event's organizers, a "Notice of Charge" accusing him of discrimination under a policy that listed "objectionable epithets" as potentially harmful conduct. The University later wrote Abbott to say it was not planning to pursue the investigation further, but only after several weeks, and it did not address the possibility that the complaining students might choose to appeal. While the complaints were being reviewed, the students were told they could not discuss them with anyone.

Both the district court and the Fourth Circuit panel held, among other things, that Abbott lacked standing to mount a facial challenge against rules that led to the investigation because, in short, the court didn't believe that a weeks-long investigation into protected speech would create an "objectively reasonable" fear of enforcement. But wouldn't the investigation itself indicate there's a possibility of enforcement, you ask? No, said the Circuit panel:

It is true, as the plaintiffs argue, that [the school's] letter announcing that no action would be taken in response to the Free Speech Event did not go on to specify that no action would be taken in response to similar events in the future. But it is up to the plaintiffs to show some objective reason to believe the University would change its position, and this they have not done.

(Slip op. at 30.) The Fourth Circuit is wrong in a number of ways, the most obvious being that being "charged" with discrimination and subjected to an investigation that could result in expulsion would indeed create a "chilling effect" on a student of reasonable firmness. One would almost have to question the intelligence of a student who wasn't deterred by being subjected to a process that could end in expulsion. How many times would a student engage in protected-but-offensive speech knowing that each time would be another opportunity for the school to launch an investigation?

This represents a marked departure from the relaxed standing requirements used in prior freedom of speech cases, especially those involving speech codes. In 1989's Doe v. University of Michigan, the federal district court held that the speech code there at issue had been enforced "so broadly and indiscriminately" that Doe, a psychology student, had standing to challenge it because there was a "realistic and credible threat that Doe could be sanctioned were he to discuss certain biopsychological theories," even though Doe hadn't actually been threatened with enforcement of the policy. In UWM Post v. Board of Regents of U. of Wisconsin, the UWM Post was not a party to any of the nine times the University of Wisconsin-Madison speech code had reportedly been enforced, but still had standing to bring a facial challenge.

In denying a motion to dismiss in Bair v. Shippensburg University, a recently graduated student and a current student who claimed their speech had been chilled by a code prohibiting "inflammatory or harmful" speech had standing; the court quoted Justice Blackmun's majority opinion in Forsyth County v. Nationalist Movement, writing, "the very existence of some broadly written laws has the potential to chill the expressive activity of others not before the Court." In Roberts v. Haragan, the court noted a student-plaintiff at Texas Tech could not make an as-applied challenge to an earlier version of a speech code (because he'd voluntarily complied with a request to move his speech, then never showed up to make it); that student still had standing to make a facial challenge to the interim policy that replaced it, which prohibited "insulting" speech.

The student-plaintiffs' petition for en banc rehearing — which could be ruled on at any moment — summarizes the stakes:

This Court has stressed the "persistent and insidious threats" to the First Amendment posed by the heckler's veto, and held that complaints alleging discrimination must be resolved without burdening speakers' rights. The panel's acceptance of what it described as "incidental burdens" imposed by enforcement of [Univ. of South Carolina's policy] is inconsistent with the law as articulated by the Supreme Court, this Court, and other circuits, and must be corrected on rehearing.

(Citation omitted.) If the petition isn't granted, a cert petition seems likely, because student rights cannot tolerate this interpretation of standing.

Uzuegbunam and Abbott represent a trend that undermines student speech not by directly attacking First Amendment rights, but by limiting the people who can vindicate them, and the amount of time they have to do it. At some point, a civil liberty ceases to have meaning if courts won't review its violation.