Abbott v. Pastides

900 F.3d 160

Ross ABBOTT ; College Libertarians at the University of South Carolina; Young Americans for Liberty at the University of South Carolina, Plaintiffs – Appellants,

v.Harris PASTIDES; Dennis Pruitt ; Bobby Gist ; Carl R. Wells, Defendants – Appellees.

Students for Life of America ; ACLU of South Carolina; DKT Liberty Project ; Individual Rights Foundation ; National Coalition Against Censorship; Reason Foundation; Student Press Law Center, Amici Supporting Appellants.

No. 17-1853

United States Court of Appeals, Fourth Circuit.

Argued: March 22, 2018

Decided: August 16, 2018

ARGUED: Robert Corn-Revere, DAVIS WRIGHT TREMAINE LLP, Washington, D.C., for Appellants. Carl Frederick Muller, CARL F. MULLER, ATTORNEY AT LAW, PA, Greenville, South Carolina, for Appellees. ON BRIEF: Edward T. Fenno, FENNO LAW FIRM, LLC, Charleston, South Carolina; Ronald G. London, Lisa B. Zycherman, DAVIS WRIGHT TREMAINE LLP, Washington, D.C., for Appellants. William H. Davidson, II, Kenneth P. Woodington, DAVIDSON & LINDEMANN, P.A., Columbia, South Carolina, for Appellees. John C. Eastman, Anthony T. Caso, Center for Constitutional Jurisprudence, CHAPMAN UNIVERSITY FOWLER SCHOOL OF LAW, Orange, California, for Amicus Students for Life of America. Ryan W. Marth, Minneapolis, Minnesota, David B. Shemano, ROBINS KAPLAN LLP, Los Angeles, California, for Amici ACLU of South Carolina, DKT Liberty Project, Individual Rights Foundation, National Coalition Against Censorship, Reason Foundation, and Student Press Law Center.

Before MOTZ, DUNCAN, and HARRIS, Circuit Judges.

Affirmed by published opinion. Judge Harris wrote the opinion, in which Judge Motz and Judge Duncan joined.

PAMELA HARRIS, Circuit Judge:

In 2015, two student groups at the University of South Carolina sought approval for a "Free Speech Event" to highlight perceived threats to free expression on college campuses. According to the groups, the event they were planning would include visual displays of material that had provoked free-speech controversies at other schools, including a swastika. The University approved, and the Free Speech Event took place on campus without interference.

The event did, however, generate complaints from other students, who objected to the displays and accused its sponsors of making sexist and racist statements at the scene. A University official met with Ross Abbott, one of the event’s student sponsors, to review the complaints and determine whether an investigation was warranted. A few weeks later, he notified Abbott that there was no cause for investigation and that the matter had been dropped.

The result was a First Amendment action against the University, filed by Abbott and the two student groups behind the Free Speech Event. According to Abbott and the other plaintiffs, University officials violated their First Amendment rights when they required Abbott to attend a meeting to discuss complaints about their event. The plaintiffs also mounted a facial challenge to the University’s general policy on harassment, arguing that it is unconstitutionally vague and overly broad. The district court rejected both claims and entered summary judgment for the University defendants.

We agree with the district court and affirm on both counts. The University neither prevented the plaintiffs from holding their Free Speech Event nor sanctioned them after the fact. Its prompt and minimally intrusive resolution of subsequent student complaints does not rise to the level of a First Amendment violation. And because the plaintiffs cannot show a credible threat that the University will enforce its harassment policy against their speech in the future, they lack standing to pursue their facial attack on the policy.

I.

A.

In 2009, the United States Department of Justice ("DOJ") opened an investigation into allegations of racial discrimination at the University of South Carolina ("USC" or "University"). In response, the University hired outside counsel to draft a "Student Non-Discrimination and Non-Harassment Policy." Pursuant to an agreement between the University and DOJ, DOJ reviewed and approved the final language of the new harassment policy, which was formally adopted in 2013 as "STAF 6.24."

In its introduction, STAF 6.24 sets out the University’s dual commitments to preventing discrimination and harassment and to upholding "principles of academic freedom" and free expression. J.A. 90. The policy is designed to achieve both those ends by fostering "an academic, social and living environment that is free from discrimination and harassment" and encourages "the open exchange of ideas." Id. At the outset, STAF 6.24 clarifies that its strictures will extend only to "behavior and speech that is not constitutionally protected and which limits or denies the rights of students to participate or benefit in the educational program." Id.

Prohibited harassment is defined by STAF 6.24 as a "specific type of illegal discrimination" consisting of conduct – which may be "written," "oral," or "graphic," as well as "physical" – directed at students because of a protected characteristic such as race, religion, national origin, or sex. J.A. 91. Consistent with STAF 6.24’s introduction, the definition of harassment is limited to conduct that is "sufficiently severe, pervasive, or persistent so as to interfere with or limit the ability" of the targeted students to "participate in or benefit from the programs, services, and activities provided by the University." Id. ; cf. Davis v. Monroe Cty. Bd. of Educ. , 526 U.S. 629, 651, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999) (describing student-on-student sexual harassment actionable under Title IX as "severe, pervasive and objectively offensive" conduct that "undermines and detracts from the victims’ educational experience"). Examples of such "harmful conduct" may include "objectionable epithets" and "demeaning depictions or treatment," as well as "threatened or actual abuse or harm." J.A. 91. But STAF 6.24 also expressly excludes from the definition of harassment any use of materials or discussions "for academic purposes appropriate to the academic context."Id.

STAF 6.24 goes on to establish a complaint procedure for students. Any student may file a complaint with the University’s Office of Equal Opportunity Programs against another student "believed to have violated this policy or otherwise engaged in discriminatory or harassing behavior." J.A. 92. The Office then will designate a staff member to handle the complaint and "ensure that [it] is fairly and expeditiously investigated and if necessary, that appropriate sanctions are assessed." J.A. 93. Anonymous complaints will be handled by interviewing any identified witnesses and alleged offenders. Id.

B.

This case began when Ross Abbott, on behalf of two student groups – the College Libertarians and Young Americans for Liberty – sought approval to hold a "Free Speech Event" at the University of South Carolina. Abbott, then president of the College Libertarians, met with Kim McMahon, USC’s Director of Campus Life, and described an event intended to "draw attention to the various threats to free speech on campuses." J.A. 152. As part of that effort, Abbott explained, the groups planned to "create mock versions of several symbols and speeches that have been censored in the past," including an "Indian good luck symbol that resembles a swastika." J.A. 152. McMahon approved the Free Speech Event (the "Event") as described. In her email to Abbott, McMahon said that she saw "no controversy in educating [the] campus about what is happening in the world," and that she hoped the Event would be "a chance to learn and grow (and even be a bit uncomfortable), not further any intolerance, censorship or acts of incivility." J.A. 151.

The Event proceeded as planned on November 23, 2015, in front of USC’s Russell House Union Building, as the sponsoring students had requested. Posters at the Event included one depicting a large red swastika and another featuring the word "wetback" in outsized print. J.A. 69. Abbott and the other students distributed handouts referring to what they viewed as incidents of censorship at USC and on other campuses, and explaining their displays as examples of such incidents. The Event lasted for several hours, during which several complaints from faculty and other USC community members were forwarded to McMahon by email. McMahon’s response was to defend the Event: "This is free speech and ... if they are being respectful and trying to help learn and create dialogue then I am not sure how to help those who are uncomfortable[.]" J.A. 154. McMahon clarified, however, that because she was not at the scene, she could not "provide context" or confirm that the Event was being conducted in the manner she had approved. J.A. 156. The Event concluded without any intervention from University officials.

Almost immediately, the University’s Office of Equal Opportunity Programs ("EOP Office") received three written complaints from students about the Event, one of which named Ross Abbott as an "involved part[y]," J.A. 67, and two of which appear to have been submitted anonymously. The complaints objected to the display of "offensive symbols and racial slurs," id. – in particular, the swastika and the "wetback" sign. See J.A. 67–76. One student also complained about the sponsoring students’ behavior on the scene, alleging that they "engag[ed] rudely with USC students" and made "sexist and racist statements" to them. J.A. 72. According to the complaining students, the Event and the associated conduct constituted discrimination or harassment against protected groups.

The next day, on November 24, 2015, Carl Wells, USC’s Assistant Director of the EOP Office and Deputy Title IX Coordinator, sent Abbott a letter informing him of the complaints. "Please contact this office," the letter directed, "within the next five (5) working days ... to arrange an appointment to fully discuss the charges as alleged." J.A. 66. If the...