By Adam Wolkoff, Assistant Director, SUNY Student Conduct Institute
In Speech First, Inc. v. Schlissel, No. 18-1917, 2019 WL 4582834 (6th Cir. Sept. 23, 2019), a 2-1 panel of the Sixth Circuit Court of Appeals vacated a district court’s denial of a motion for a preliminary injunction brought by a “freedom-of-speech advocacy organization” whose members included students attending the University of Michigan.
This case may have significant implications for campus efforts to educate students on bias-related conduct and prevent the escalation of bias-related incidents through Bias Response Teams or similar non-disciplinary interventions. Even if the response simply collects and refers data on bias-related incidents, and even if the response team never actually contacts a student accused of a bias-related incident, the Sixth Circuit holds that the implicit authority behind these interventions will “objectively chill” that accused student’s speech in violation of the First Amendment.
Readers will note that the Sixth Circuit only binds institutions located in Kentucky, Michigan, Ohio, and Tennessee. No similar decisions bind institutions outside this Circuit. Nevertheless, we are alerting our members to this decision to encourage regular training of members of Bias Response Teams on the First Amendment and its implications for offensive, yet still Constitutionally-protected, speech.
An advocacy group with student members, Speech First, sued the University of Michigan on First Amendment grounds. The group wanted to block (1) the enforcement of a university policy prohibiting harassing and bullying behavior and (2) the use of a Bias Response Team that allegedly would “investigate, threaten, or punish students (including informal punishments such as ‘restorative justice’ or ‘individual education’) for ‘bias incidents.’”
As to the first challenge, Speech First argued that the University’s policies were overbroad and vague. The code of conduct itself did not define harassing or bullying behavior, yet the University’s conduct office defined these violations on its website. Those website definitions, in turn, referenced three sources: the Merriam-Webster Dictionary, University policies, and Michigan state law. Speech First only challenged the facial constitutionality of the definitions derived from the dictionary, which could potentially prohibit any speech that would “annoy persistently,” “frighten,” or create an “unpleasant” situation for another person.
The University conceded this point early in the litigation: it removed any reference to the admittedly broad dictionary definitions, and left only the definitions from state law. Speech First did not contend those state law definitions were unconstitutional, yet still, the Sixth Circuit did not find the challenge moot; the court was unconvinced that the University would not “reenact the challenged definitions.”
This level of distrust of the University is surprising, but Speech First’s second challenge is the heart of this litigation, and the one most likely to impact campus efforts to address bias-related incidents. The University stood by its Bias Response Team, which, like similar programs at other campuses, acted as a resource for students who feel they have experienced bias within the campus community. This Team had no power to determine whether reported conduct was a bias incident, or to take disciplinary action against people accused of bias. Instead, it responded to incidents by contacting the reporting individual, discussing the incident, and offering support and assistance. The Team also offered the reporting individual an opportunity to request that the person alleged to be responsible for the bias incident meet with a Team member, but these meetings could not be compelled. The Team compiled reported incidents into a log posted on its website, but all events were anonymized, and the Team had “no direct punitive authority.”
Speech First did not allege that any of its student members had ever interacted with the Bias Response Team, or that the Team could actually impose a punishment on these students for engaging in bias-related activities. The University contended that the point of the Team was not punishment, but education on how to promote respect and understanding among students. In fact, the evidence showed that no student had ever been sanctioned by the conduct office for harassing or bullying behavior for expressing protected political speech on issues raised by the anonymous Speech First student plaintiffs like “gun rights, illegal immigration, abortion, welfare, affirmative action, gender identity, or gender equity.” The policies had never been enforced solely against protected speech, and were generally connected to cases of violence or threats of violence. As a result, the district court denied their effort to block the use of the Team, because Speech First had not shown any threat of a “concrete harm” from its operation.
A divided panel of the Sixth Circuit disagreed, vacating the denial of the injunction and directing the district court to consider the merits of First Speech’s case on First Amendment grounds. So this is not a final judgment, and could proceed to discovery and proceedings on the preliminary injunction.
If it becomes final and is adopted by other courts, this decision could directly impact a public university’s authority to create non-disciplinary mechanisms for educating students on the nature of bias-related incidents, monitoring those incidents, and making referrals to disciplinary authorities. The court’s position is that Bias Response Teams are, by their nature, injurious to student First Amendment rights; even if they have no actual punitive authority, their very existence will “objectively chill speech.”
The key issue at this stage of the case was standing: whether those policies actually interfered with the plaintiffs’ own constitutionally-protected activities. The Sixth Circuit determined that the district court erred in finding that Speech First did not have standing to challenge the University policies and Bias Response Team.
Unsurprisingly, the court held that because University students were members of Speech First, that group had associational standing to represent its members. Less predictable was the court’s holding that those members suffered an “injury-in-fact” allowing them to sue, because they suffered a “concrete and objective threat of harm” to their First Amendment rights from the policies.
In assessing whether the challenged policies were overbroad in their chilling effect on speech, the Sixth Circuit distinguished between policies that produced direct injuries (“objective chill”) and those where the injury was speculative (“subjective chill”). Citing U.S. Supreme Court and Sixth Circuit precedent, it held that, as a general matter, the government’s “investigative and data-gathering activity” on an individual does not objectively chill speech: there has to be some knowledge that these activities could lead to a future action that could harm the individual. In this panel’s view, an “implicit” threat of punishment would be enough to objectively chill speech.
The University argued, and the dissenting Circuit Judge agreed, that the Bias Response Team imposed no actual or potential threat to the members’ free speech rights. The plaintiffs could not point to a single incident where the Team had criticized the speech of anyone, and even if it had, the Team could, at most, refer that incident to police or conduct officials if it constituted a potential violation of the code of conduct. This referral authority was equivalent to the power of any member of the university community to bring a complaint of violation to appropriate authorities.
Nevertheless, the Sixth Circuit majority held that the Team’s “referral power” and its ability to invite students to meet about alleged bias incidents would “objectively chill speech.” Why? First, even if the referral was not a punishment, it could lead to disciplinary consequences: it was (potentially) the first step in the “formal investigative process.” Second, the court found “an implicit threat of consequence” should a student accused of a bias incident decline to meet with the Team. It considered the possibility that a student would believe that if they did not meet with the Team, they would face a disciplinary referral, thereby making the whole process involuntary. Third, the court theorized that the harm could have already accrued: even if the Team had never taken action to criticize student speech, this “could just as well indicate that speech has already been chilled.” On these grounds, the court held that Speech First had suffered a concrete and objective threat of harm giving them standing to sue.
While it has drawn national attention and raised much discussion about campus free speech, this decision suffers from a number of logical challenges and is based on fairly aggressive speculation and a significant extension of imagination as to the effects of these policies. No similar precedent binds institutions within the Second Circuit or other Circuits, and the Constitutional reasoning underlying this decision may have little weight as other courts analyze similar fact patterns.
For one thing, the analysis appears wholly novel. The Speech First court’s First Amendment jurisprudence seems to be cut from whole cloth, creating a new category of prohibited government activity: information gathering on what students say or do. This is not a case where a student has actually been ordered to leave campus or speak in a designated location. The students have suffered no adverse action except for what the court perceives to be a chilling effect on their expression following the Team’s collecting of bias-related reports.
The court does not offer any authority justifying this leap, and precedent within its own Circuit points to an opposite result. It distinguishes a Sixth Circuit case that seemingly supports the University’s position, Morrison v. Bd. of Educ. of Boyd Cty., 521 F.3d 602 (6th Cir. 2008), on procedural grounds (that Morrison was an “as-applied” challenge, while the instant case was “facial”). Yet the Morrison court found no concrete risk of harm in a high school student’s fear that he would be disciplined for violating a policy prohibiting a student from making stigmatizing or insulting comments about another student’s sexual orientation, where the student believed that homosexuality was a sin. Similar logic would seem to bind the Speech First panel: that, absent a concrete act by the university, a student’s subjective fear of punishment for speaking would not justify a “preenforcement” challenge to the policy.
The Sixth Circuit appears to rely on a U.S. Supreme Court decision from 1963, Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963), where the court found unconstitutional a state “morality” commission with the duty to “educate” the public on books that could harm youth. In practice, this education involved sending notices to distributors that the materials were inappropriate for sale to youth, “invariably followed up by police visitations.” These tactics, with their “thinly veiled threats” of criminal enforcement, led to the censorship of this material. Comparing police suppression of indecent materials with a Bias Response Team, which has no punitive authority, veiled or otherwise, is quite a stretch.
The Speech First court also cites two Second Circuit decisions as authority, neither of which lend much support to its position. Okwedy v. Molinari, 333 F.3d 339, 344 (2d Cir. 2003); Levin v. Harleston, 966 F.2d 85, 88-89 (2d Cir. 1992). While both cases suggest that an “implicit” threat of retaliation or discipline could objectively chill of speech, this case law makes clear that “[w]hether an implicit threat is sufficient to create a chill is substantially a fact-based inquiry.” Levin, supra, 966 F.2d at 88-89. In other words, it lies within the realm of fact, not speculation. And in both cases, the district court identified clear consequences for engaging in protected speech: political payback; Okwedy, supra, 333 F.3d at 344; and disciplinary charges. Levin, supra, 966 F.2d at 89. A similar nexus between speech and sanction seems missing here.
Not only does judicial precedent elsewhere disfavor the court’s reasoning, but the facts do not support the result. Bias Response Teams, such as the one at the University of Michigan, do not engage in threats of discipline or retaliation, implicitly or explicitly. They do not use their information-gathering authority to silence speech. They do not coerce students to participate in meetings at pain of disciplinary referral. They are a resource for students who believe they have been the victim of a bias-related incident, and serve the university’s larger educational mission of fostering a respectful and understanding climate for speech. As long as campus policies make clear that the Bias Response Team cannot and will not punish a student for engaging in protected speech, there should be no finding of harm to a Constitutionally-protected interest.
Whatever these flaws, this decision should make clear the need for clear and consistent definitions within our codes of conduct of “harassment,” “bullying,” and other violations that implicate protected speech. It is notable that the plaintiffs ultimately have not challenged the constitutionality of state law definitions governing these violations. It is also important to relay that campuses should not rely on overbroad definitions, drawn from the dictionary, when defining their scope.
Concurrently, members of such teams should receive regular training on the First Amendment and, specifically, what protections exist for speech that may be offensive, but is protected under the Constitution.