Constitutional Law Recent Case

Recent Case: Speech First v. Schlissel

Campus speech wars have been flaring up over the issue of offensive speech and the appropriateness of schools’ responses to it. Recently, the Sixth Circuit weighed in on the First Amendment implications of the matter. The specific battle had already ended by the time the court found itself in the speech wars’ trenches. But the court decided to crown the winner—conservative activists—anyway, leaving the standing and mootness doctrines as casualties in its wake. Its lax view of standing in First Amendment facial challenges — the court seemingly dispensed with the requirement that a plaintiff show actual injury—will leave school officials practically powerless to respond to allegations of hate speech.

The case arose when Speech First, “a freedom-of-speech advocacy organization,” filed a complaint challenging the University of Michigan’s anti-bullying and harassment policy. Merriam-Webster’s dictionary provided fuel for the controversy. The University’s statement prohibiting harassment and bullying had included, among state law and university guidelines, dictionary definitions of those terms. Speech First argued that those definitions were overbroad and infringed upon students’ First Amendment rights. The plaintiff also challenged the University’s Bias Response Team, which responds to complaints of harassment. The Team had the power to request, but not compel, a meeting with alleged violators, as well as refer incidents up the chain of command or to the police. After the lawsuit was filed, the University struck out the dictionary and University policy definitions of bullying and harassment, affirmed that they would not be reinstated, and refrained from defending their constitutionality.

Speech First then moved for a preliminary injunction seeking to prevent the University from taking any action regarding harassment allegations. The district court found that all the relevant factors weighed against issuing an injunction. It noted that Speech First was unlikely to succeed on the merits because it lacked standing and its claim was mooted by the University’s subsequent change to its policy. But upon reviewing the likelihood of success on the merits factor, the Sixth Circuit, in an opinion authored by Judge McKeague, found that the plaintiff did have standing to sue. It further found that the case wasn’t mooted by the University’s corrective action, remanding the case for reconsideration of the likelihood of success factor.

The plaintiffs alleged that the University’s policies and the threat of punishment from the Bias Response Team had chilled their speech. The Sixth Circuit found that, though the body had no actual punitive capacity, its power to refer the complaint onward and to invite students to meet with them had “objectively” chilled speech. In addressing the concrete harm requirement of standing, the court distinguished this case from as-applied challenges, which contest only the particular application of the law to the plaintiffs and do require that they show resulting harm. Because Speech First’s challenge to the University policy was facial—its claim was that the policy was always unconstitutional, not just in its particular application to the plaintiffs—it was of no significance to the court that the University had not actually enforced the dictionary definitions of harassment and bullying against the complaining students.

As it lowered the standing bar for Speech First, the court raised the mootness bar for the University. While acknowledging that the government is afforded a presumption of good faith when it mends its ways, the Sixth Circuit reasoned that the University and Merriam-Webster’s divorce wasn’t procedurally formal enough and could potentially be reversed. Ergo, there was still a case to be addressed in the court’s eyes.

Judge White authored a dissent. She took issue with the court’s placement of the burden on the defendant to prove that its policies had not worked mischief, and with its doing away with the concrete harm requirement of standing. She further argued that, given the district court’s finding that all the other relevant factors weighed against granting an injunction, there was “ample reason to affirm the district court’s discretionary determination even assuming that its standing and mootness determinations were erroneous.”

The Sixth Circuit seemed eager to find a “case or controversy” even though there was no evidence that the plaintiff’s free speech rights had actually been abridged. Underlying its decision was a view of college campuses as a minefield for holders of unpopular views—a potentially overblown notion, criticized for relying on “a handful of sensationalist incidents.” Rather than wait for a plaintiff to suffer an actual injury from a public university’s policing of speech, the Sixth Circuit chose to enter the battlefield anyway in order to stake out the boundaries of free speech on campus.

The court’s remand may make little difference to the litigants, given that all the other factors weighed in favor of denying the preliminary injunction, and the University had long since abandoned the dictionary definitions. But the decision will severely constrain school officials as they seek to fulfill the difficult task of addressing hate speech while preserving free speech. The evidence in the case showed that, in practice, the University’s policy was innocuous and its Bias Response Team was toothless. If that scheme couldn’t pass constitutional muster, given the court’s unfounded speculations as to its possible chilling effect on speech, then it’s hard to imagine what school action against bullying would be acceptable.

Doctrinally, there seems to be an incongruity in the court’s view of standing. The majority thought plaintiffs have to show that a defendant has caused concrete harm only in as-applied challenges, while the dissent argued that such a showing is also needed for facial challenges. The Sixth Circuit thus effectively set up a lower bar to strike out a law in its application to everyone than in its application to a single litigant. If a plaintiff were to argue that a law violates her First Amendment rights, she would need to prove that the law has actually worked harm to herself. But a more ambitious plaintiff, seeking to invalidate the entire law, wouldn’t need to prove that there’s been tangible harm to anyone.

The court didn’t directly address this apparently strange logic, but the dissent’s view probably makes for a better rule. If a law is indeed facially unconstitutional, it shouldn’t be hard to find someone who has been injured by it, with no need to relax standing requirements. In its application of First Amendment overbreadth doctrine, the Sixth Circuit overreached. As a consequence, school officials will be left with little space to address the problem of bias-motivated bullying and harassment on campus.