March 4, 2020
By Matt Miller

This week, the Fifth Circuit Court of Appeals heard oral argument in Speech First v. Fenves, which involves a challenge to a set of speech-chilling rules at the University of Texas at Austin. Speech First is a nonprofit organization with an institutional mission of promoting free speech on college campuses by challenging unconstitutional restrictions on that speech.

In this case, that primarily meant challenging the University’s creation of so-called “campus climate response teams,” the purpose of which is to investigate allegations of “incivility,” “harassment,” and “rudeness” on campus. Those investigations are launched by student complaints, which have few restrictions on how or when they can be filed. This thereby creates a system under which students can constantly police one another’s speech by filing complaints. And the investigations launched by those complaints can result in punishments ranging from censure to criminal charges. This creates an environment in which students must live in fear that someone will file a complaint that will eventually ruin their lives—all because someone disagreed with something they said.

The district court ruled dismissed Speech First’s challenge to these rules by declaring that the group lacked standing to bring its case. According to the district court, Speech First had identified “only broad categories of speech in which [the student plaintiffs] wish to engage,” rather than “specific statements they wish to make.” It also noted that University President Gregory Fenves had submitted a declaration that the University had “no … history of punish[ing]” students for protected speech. Speech First appealed and, after briefing both by the parties and many amici curiae, the Fifth Circuit held oral argument earlier this week. (The Goldwater Institute filed an amicus brief in the case.) 

It is always risky to try and read the tea leaves of appellate oral argument, but things seemed to go well for Speech First. The panel seemed to agree with the group’s primary contention that one does not need to wait for his or her free speech rights to be violated before they can bring suit under the First Amendment. The University argued otherwise, claiming that the harm must be “certainly impending” before a group like Speech First could challenge a policy. Judge Edith Jones seemed to reject this argument. “It cannot be the case,” she said, “that you can only protect your First Amendment rights once your First Amendment rights have been deliberately interfered with.”

The disagreement between Judge Jones and the University highlights an important issue that exists in many modern First Amendment cases: If the government enacts a policy that opens you up to ideological harassment and intimidation, how much harm must you suffer before you can sue to defend your constitutional rights? 

In addition to campus speech cases like this one, the issue comes up in cases involving disclosure of nonprofit donors. (The Goldwater Institute is currently litigating donor disclosure cases in Santa Fe, New Mexico, and Denver, Colorado.) In donor disclosure cases, the issue is whether the government can force nonprofit groups to disclose their donors when those groups speak about ballot measures and other legislation. Nonprofits argue that requiring such disclosure opens nonprofit donors up to harassment and intimidation from their ideological opponents since the government literally publishes donor names on a list on the internet. This forces nonprofits to make an unconstitutional choice: Speak, and expose your donors; or remain silent. The government, on the other hand, usually argues that groups lack standing to sue unless they have endured actual harassment. In other words, according to the government, you have to wait until your donors have their cars keyed, houses egged, or safety threatened before you can sue to defend your First Amendment rights.

Judge Jones is correct: This cannot be the constitutional rule and, indeed, it is not. The government cannot dream up ways to chill your speech, then make you wait until you have been harmed, as a result of your speech, before you can defend your rights.

Matt Miller is a Senior Attorney at the Goldwater Institute.

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