An Austin federal judge dismissed a free speech lawsuit that alleged The University of Texas at Austin chilled three students’ speech on controversial topics like the #MeToo movement, illegal immigration, gun rights, affirmative action and more.
The plaintiff, Speech First Inc., is a Washington, D.C.-based association of students, parents and alumni that files First Amendment litigation against universities. Aside from this case, the group has ongoing litigation against the University of Illinois at Urbana-Champaign in an Illinois federal trial court, and against the University of Michigan in the U.S. Court of Appeals for the Sixth Circuit.
In an opinion and order on Tuesday in the case, Speech First Inc. v. Fenves, Judge Lee Yeakel of the U.S. District Court for the Western District of Texas wrote that Speech First solicits plaintiffs in “a rather unsavory manner” by advertising on its website that it will help students sue universities for just $5.
Speech First plans to appeal the ruling that denied it a preliminary injunction, dismissed its case entirely and ordered it to pay the university’s court costs.
“Speech First continues to believe that the university’s policies chill protected expression in violation of the First Amendment,” said Speech First president and founder Nicole Neily in a statement. “We look forward to the next phase of the case before the U.S. Court of Appeals for the Fifth Circuit.”
The opinion said the university has rules to govern speech, expression and assembly on campus, and students can face discipline for violations. The rules prohibit verbal harassment like threats or personal attacks, but don’t pertain to speech that argues for or against a substantive idea. Other rules encourage students to be civil and maintain mutual respect, while still acknowledging free speech rights. The university has a “campus climate response team” that responds to and investigates student or faculty reports of “bias incidents.”
“Speech First argues that these university policies chill its members’ speech and facially challenges these policies under the First Amendment as overbroad and vague,” wrote Yeakel, noting the plaintiff sued UT President Greg Fenves to seek a preliminary injunction to stop the university from investigating, threatening or punishing students under the policies.
The university argued that Speech First had no standing to sue the university because the anonymous students faced no credible threats of disciplinary action. The policies at issue would not prohibit the speech listed in the complaint, and therefore, the students’ self-censorship was unfounded, claimed the university.
Yeakel explained in the opinion that Speech First is suing on behalf of its student members and it must have associational standing. To qualify, the three students must have standing by showing there’s a credible threat of a First Amendment violation, or that their self-censorship is objectively reasonable.
The opinion noted that the three students didn’t provide supporting affidavits about statements they wanted to make. There’s only a general affidavit by the group’s president saying the members feared the policies and couldn’t speak on controversial topics.
Yet the court ruled those policies don’t prohibit speech on the topics at issue. Also, the university has evidence that it’s never punished or investigated students based on their speech. Yeakel ruled the students and Speech First don’t have standing to sue because there’s no credible threat that the university’s policies will ever impact the students, and their self-censorship wasn’t based on a well-founded threat of punishment.
Jackson Walker partner Chip Babcock of Houston, who represented the university, said he was delighted with the result and declined further comment.
UT-Austin spokesman J.B. Bird wrote in a statement that the university agrees with the court’s ruling, as Speech First didn’t have evidence that any UT student was disciplined for speech.
“Free speech is essential for The University of Texas at Austin to carry out its mission as an institution of higher education, and the university is proud of its work protecting the free speech rights of all members of its community,” Bird said.
Read the opinion.