‘Stand Up For Speech’ Litigation Update: University of South Carolina

Last month I had the opportunity to attend an oral argument in our Stand Up For Speech Litigation Project case against the University of South Carolina (USC) with FIRE’s Director of Litigation, Marieke Tuthill Beck-Coon. For those unfamiliar with this case, the plaintiffs are the USC chapters of Young Americans for Liberty and College Libertarians, and Ross Abbott, a student organizer and the former president of USC’s College Libertarians.

The case began after the plaintiffs held an outdoor free speech event in November 2015, which was designed to draw attention to the threats to free speech on campus. At the event, the plaintiffs displayed posters containing examples of censorship from across the country, including provocative language and imagery. After the event, three USC students complained that some of the posters were “triggering” and “offensive.” USC served Abbott with a “Notice of Charge” threatening punishment, and investigated him under its discrimination and harassment policy. While the charges against Abbott were dropped several weeks later, he and the two student groups filed suit to ensure their school would not attempt to punish protected speech in the future.

On January 19, the United States District Court for the District of South Carolina held an oral argument on both parties’ motions for summary judgment. In its motion for summary judgment, USC argued that its officials were entitled to qualified immunity, that the investigation did not violate the First Amendment, that the plaintiffs did not have standing, and that some of the claims in the plaintiffs’ case were moot because USC had amended several of the policies at issue during the pendency of the case. In response, the plaintiffs’ lawyers, led by Robert (Bob) Corn-Revere of the law firm Davis Wright Tremaine, argued that USC officials were not entitled to qualified immunity, that the investigation of Abbott violated the First Amendment, that the plaintiffs have standing, and that USC’s amendments to its policies did not moot the case.

One of the many interesting questions that the judge asked Bob was how a school could both protect free speech and respond to allegations of harassment based on speech. In response, Bob argued that these are not conflicting responsibilities: A school can investigate harassment without infringing on protected speech. For example, before launching its investigation, USC could have reviewed the complaints and recognized that they were based on protected speech, containing no suggestion of conduct rising to the level of harassment. At that point, USC should have dropped the matter or asked complainants for additional information. But rather than do this, USC sent Abbott a charge letter threatening punishment and summoning him to a meeting to explain his event and its message, chilling his speech.

Attending an argument on the First Amendment is always interesting, but this argument was more than interesting—it was inspiring. What made it inspiring was realizing the courage that it took for the plaintiffs to file suit. Deciding to sue your school isn’t always an easy decision. However, without students brave enough to stand up and take action when their rights are violated, even more student speech would be chilled.

My hope is that this argument was the first of many opportunities for our Stand Up For Speech Litigation Project to fight for free speech rights in court this year.  FIRE will update you once the motions are decided.