Spectrum WT v. Wendler

693 F.Supp.3d 689

SPECTRUM WT, et al., Plaintiffs, v. Walter WENDLER, et al., Defendants.

2:23-CV-048-Z

United States District Court, N.D. Texas, Amarillo Division

Signed September 21, 2023

JT Morris, Foundation for Individual Rights and Expression, Washingon, DC, Adam Steinbaugh, Pro Hac Vice, Conor T. Fitzpatrick, Pro Hac Vice, Jeffrey Daniel Zeman, Pro Hac Vice, Foundation for Individual Rights and Expression, Philadelphia, PA, for Plaintiffs.

Charles K. Eldred, Attorney General of Texas, Administrative Law Division, Austin, TX, Aaron Francis Reitz, Office of the Attorney General of Texas Deputy Attorney General for Legal Strategy, Austin, TX, Leif A. Olson, Office of the Attorney General of Iowa, Des Moines, IA, for Defendant Walter Wendler.

Heather Lee Dyer, Office of the Attorney General, General Litigation Division, Austin, TX, Amy S. Hilton, Christopher D. Hilton, Texas Attorney General's Office, Austin, TX, Drew Anne Beglau, Office of the Attorney General of Texas, Law Enforcement Defense Division, Austin, TX, for Defendants Dr. Christopher Thomas, John Sharp, Robert L. Albritton, James R. Brooks, Jay Graham, Tim Leach, Bill Mahomes, Elaine Mendoza, Michael J. Plank, Cliff Thomas, Demetrius L. Harrell, Jr., Michael A. Hernandez, III.

MEMORANDUM OPINION AND ORDER

MATTHEW J. KACSMARYK, UNITED STATES DISTRICT JUDGE

Before the Court are Defendant Wendler's Motion to Dismiss Under Rules 12(b)(1) and 12(b)(6) ("Wendler's Motion") (ECF No. 34), Defendants' Motion to Dismiss ("Defendants' Motion") (ECF No. 38), and Plaintiffs' Amended Motion for Preliminary Injunction ("Amended Motion") (ECF No. 30). Having considered the motions, briefing, and relevant law, the Court GRANTS IN PART Wendler's Motion and Defendants' Motion, and DENIES Plaintiffs' Amended Motion.

BACKGROUND

Plaintiffs are a recognized student organization ("Spectrum WT") at West Texas A&M University ("WT") and two of Spectrum WT's officers. ECF No. 28 at 5-6. Plaintiff Spectrum WT strives to "provide a safe space for LGBT+ students and allies to come together," to "raise awareness of the LGBT+ community," and to "promote diversity, support, and acceptance on campus and in the surrounding community." Id. at 4. In furtherance of that mission, Spectrum WT hosts events such as "Lavender Prom, Queer History Night, and Queer Movie Night." Id. at 5. Plaintiffs also planned a March 2023 fundraiser at a WT "campus event hall" to raise funds for LGBT+ suicide prevention. Id. at 1. In papers filed with this Court, Plaintiffs describe the proposed event as a "drag show" open to children accompanied by a parent or guardian. Id. at 18.

The proposed event was tentatively scheduled for April 1 and branded "A Fool's Drag Race." Id. at 15. Due to a scheduling conflict, Spectrum WT agreed to hold the show one day earlier. Id. But before WT confirmed the event, Defendant Walter Wendler ("President Wendler") stated his opposition in a letter dated March 21, 2023: "[WT] will not host a drag show on campus." ECF No. 28-1 at 2-3. In the letter, President Wendler analogized to another type of "theatrical performance" — "blackface" minstrelsy¹ — to explain his opposition to any event exaggerating, stereotyping, mocking, or objectifying a person "based on appearance, bias or predisposition":

As a performance exaggerating aspects of womanhood (sexuality, femininity, gender), drag shows stereotype women in cartoon-like extremes for the amusement of others and discriminate against womanhood. Any event which diminishes an individual or group through such representation is wrong . . . . Should I let rest misogynistic behavior portraying women as objects?

* * *

Drag shows are derisive, divisive and demoralizing misogyny, no matter the stated intent. Such conduct runs counter to the purpose of WT. A person or group should not attempt to elevate itself or a cause by mocking another person or group.

As a university president, I would not support "blackface" performances on our campus, even if told the performance is a form of free speech or intended as humor. It is wrong. I do not support any show, performance or artistic expression which denigrates others — in this case, women — for any reason . . . . Mocking or objectifying in any way members of any group based on appearance, bias or predisposition is unacceptable . . . . No one should claim a right to contribute to women's suffering via a slapstick sideshow that erodes the worth of women. When humor becomes harassment, it has gone too far.

Id.

President Wendler averred that "harassment" was inconsistent with WT's vision statement, the Texas Education Code, and federal workplace rules enforced by the U.S. Equal Employment Opportunity Commission, linking relevant websites. Id. at 3-4. Throughout the letter, President Wendler expressed support for the underlying mission and message of the proposed event — i.e., preventing suicide in the LGBT+ community by raising money for The Trevor Project. See id. at 4 ("Supporting the Trevor Project is a good idea."). In closing, President Wendler offered a simple recommendation: "[S]kip the show and send the dough." Id.

Plaintiffs filed and then withdrew their motion for a temporary restraining order after electing to host the event off campus. ECF No. 16. But Plaintiffs still seek injunctive and declaratory relief in addition to damages under 42 U.S.C. § 1983 because their future events are allegedly "in imminent peril due to President Wendler's edict." ECF No. 31 at 15. These include "Queer Movie Night," "Queer History Night," and a second drag show tentatively set for March 2024. ECF No. 28 at 26.

OVERVIEW

Free Speech jurisprudence only intermittently invokes the historical analysis applied to other Amendments and Clauses. See, e.g., N.Y. State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 2161, 213 L.Ed.2d 387 (2022) (applying a Second Amendment "text, history, and tradition" test); Am. Legion v. Am. Humanist Ass'n, 588 U.S. 29, 139 S. Ct. 2067, 2087, 204 L.Ed.2d 452 (2019) (explaining that Establishment Clause jurisprudence "looks to history for guidance"). Said historical analysis reveals a Free Speech ecosystem drastically different from the "expressive conduct" absolutism of Plaintiffs' briefing: (1) the Founders focused on "prior restraints" of publication — specifically, political pamphlets, (2) draft Free Speech Clauses focused on protecting the "right to speak, to write, or to publish their sentiments," (3) Blackstone treatises extolled "freedom of thought" and recognized a police power "to censure licentiousness," (4) the Comstock Act of 1873 prohibited the mailing of "obscene, lewd or lascivious" materials, and (5) Joseph Story's Commentaries defined the Free Speech Clause as protecting the "right to speak, write, and print . . . opinions upon any subject whatsoever, without any prior restraint," but not the right to "injure any other person in his rights, person, property, or reputation" or "to disturb the public peace."²

As written, ratified, and adjudicated for 150 years, the Free Speech Clause harmonized disparate and competing interests using "text, history, and tradition" as guideposts, sometimes a sliding scale: political speech versus commercial speech;³ pornography versus obscenity;⁴ viewpoint versus content;⁵ traditional versus designated versus limited public forums;⁶ thought versus speech versus conduct,⁷ etc. Many Free Speech categories were subject to "reasonable time, place, and manner" restrictions.⁸ Beginning in the late 20th Century, Free Speech jurisprudence absorbed "expressive individualism" as the new sine qua non of First Amendment analysis. See Jeffrey A. Kaplan, The Republic of Choice: Law, Authority, and Culture. 27 HARV. J. ON LEGIS. 613 (1990) ("Expressive individualism" emphasizes "self-expression, that is, cultivating the inner human being, expanding the self, developing the special qualities and uniqueness of each person.") (citations omitted); see also Carl R. Trueman, The Rise and Triumph of the Modern Self: Cultural Amnesia, Expressive Individualism, and the Road to Sexual Revolution 26-80 (2022).

But the newer cases retained older rules relevant to protests, forums, time, place, and manner — plus an important outer limit on "expressive conduct," especially sexualized "expressive conduct": When children are involved, the calculation changes.⁹ Here, Plaintiffs expressly contemplate and even advertise the involvement of children. ECF No. 28 at 18.

APPLICATION

Plaintiffs neither plead a "clearly established right" to host a sexualized drag show on campus, nor that President Wendler's response was "objectively unreasonable." And although Plaintiffs recite and repeat "expressive conduct" boilerplate from landmark cases, they elide the constitutional and statutory taxonomies necessary to decide a Free Speech campus case — at least at this MTD Phase. Specifically, Plaintiffs failed to plead adequate facts and arguments in four categories of First Amendment law necessary to overcome qualified immunity protections:

First, if the "fundraiser" features cross-dressing like other theatrical performances, but not an "overtly political" message, does it convey the "intentional and overwhelmingly apparent" message required in the "campus protest" cases applicable to school settings? See, e.g., Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 504, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); Texas v. Johnson, 491 U.S. 397, 406, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989); Spence v. State of Wash., 418 U.S. 405, 409, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974) (the Court must "determine whether his activity was sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments"). Notably, the landmark cases cited by Plaintiffs include a warning to this Court: "We cannot accept the view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends...