Eleventh Circuit decision in Speech First, Inc. v. Cartwright: speech policies at the University of Central Florida likely violate the First Amendment.
[In] determining the propriety of preliminary injunctive relief[, we consider, among other things, whether plaintiff has shown a] substantial likelihood of success on the merits ….
The discriminatory-harassment policy is almost certainly unconstitutionally overbroad…. [T]he policy (1) prohibits a wide range of “verbal, physical, electronic, and other” expression concerning any of (depending on how you count) some 25 or so characteristics; (2) states that prohibited speech “may take many forms, including verbal acts, name-calling, graphic or written statements” and even “other conduct that may be humiliating”; (3) employs a gestaltish “totality of known circumstances” approach to determine whether particular speech, for instance, “unreasonably alters” another student’s educational experience; and (4) reaches not only a student’s own speech, but also her conduct “encouraging,” “condoning,” or “failing to intervene” to stop another student’s speech.
The policy, in short, is staggeringly broad, and any number of statements—some of which are undoubtedly protected by the First Amendment—could qualify for prohibition under its sweeping standards. To take a few obvious examples, the policy targets “verbal, physical, electronic or other conduct” based on “race,” “ethnicity,” “religion [or] non-religion,” “sex,” and “political affiliation.” Among the views that Speech First’s members have said they want to advocate are that “abortion is immoral,” that the government “should not be able to force religious organizations to recognize marriages with which they disagree,” that “affirmative action is deeply unfair,” that “a man cannot become a woman because he ‘feels’ like one,” that “illegal immigration is dangerous,” and that “the Palestinian movement is anti-Semitic.”
Whatever the merits or demerits of those sorts of statements, they seem to us to constitute “core political speech,” with respect to which “First Amendment protection is ‘at its zenith.'” Because the discriminatory-harassment policy restricts political advocacy and covers substantially more speech than the First Amendment permits, it is fatally overbroad….
The University’s policy isn’t just overbroad, it’s also an impermissible content- and viewpoint-based speech restriction—or, at the very least, likely so…. It is content-based because the University must “examine the content of the message that is conveyed to determine whether” it harasses another student “based upon” any of a long list of characteristics—e.g., race, sex, political affiliation, etc. Because the policy is a content-based restriction, it must satisfy strict scrutiny, and we doubt it can.
Although the University may have a compelling interest in preventing students from disrupting its educational environment, its policy doesn’t seem to us to be narrowly tailored to that end. As already explained, the policy covers speech that pertains to any of a number of characteristics, can take any of a variety of forms (including “verbal acts” and “written statements,” and “other conduct that may be humiliating”), and that is deemed, by reference to a non-exhaustive seven-factor test, to “unreasonably … alter” another student’s educational experience—and, indeed, to the acts of “condoning or encouraging,” or even “failing to intervene” to stop another from speaking. That, with respect, is the opposite of narrow tailoring.
In any event, the discriminatory-harassment policy likely goes beyond content-discrimination to discriminate on the basis of viewpoint. Even within the category of harassing speech, UCF prohibits only speech that is “discriminatory.” To borrow the Supreme Court’s recent observation about similarly loaded terms in one of the Lanham Act’s trademark registration provisions, which it found impermissibly viewpoint-based, “[t]he meaning of” the word “discriminatory” is “not mysterious”—it connotes speech that denigrates rather than validates certain characteristics. Here, as there, “resort to [the] dictionaries,” confirms that commonsense conclusion. See, e.g., Discriminatory, Oxford English Dictionary (online ed.) (“That treats a person or group in an unjust or prejudicial manner.”). In prohibiting only one perspective, UCF targets “particular views taken by” students, and thereby chooses winners and losers in the marketplace of ideas—which it may not do.
Nowhere is free speech more important than in our leading institutions of higher learning. Colleges and universities serve as the founts of—and the testing grounds for—new ideas. Their chief mission is to equip students to examine arguments critically and, perhaps even more importantly, to prepare young citizens to participate in the civic and political life of our democratic republic. It’s hardly surprising, then, that the Supreme Court has “long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition.” Accordingly, it is imperative that colleges and universities toe the constitutional line when monitoring, supervising, and regulating student expression. Despite what we presume to be the very best of intentions, it seems to us substantially likely that the University of Central Florida crossed that line here….