Speech First, Inc. v. Sands

SPEECH FIRST, INC., Plaintiff, v. TIMOTHY SANDS, in his individual capacity and official capacity as President of Virginia Polytechnic Institute and State University, Defendant.

No. 7:21-cv-00203

United States District Court, W.D. Virginia, Roanoke Division

September 21, 2021

MEMORANDUM OPINION

Michael F. Urbanski Chief United States District Judge

This matter is before the court on the plaintiff's-Speech First, Inc. (“Speech First” or “the plaintiff”)-motion for a preliminary injunction, ECF No. 4. Speech First seeks to enjoin defendant Timothy Sands (“Sands” or “the defendant”), in his individual capacity and his official capacity as President of Virginia Polytechnic Institute and State University (“Virginia Tech” or “the university”), ^[1] from enforcing four policies governing student conduct at Virginia Tech. Id. Speech First alleges that these policies violate the First Amendment rights of its members in the following ways:

• Virginia Tech's bias-related incidents policy, as revised in February 2016, is an overbroad, vague, and viewpoint-discriminatory restriction on speech;

• Virginia Tech's discriminatory harassment policy (Policy 1025), as revised in August 2020, is an overbroad vague, and viewpoint-discriminatory restriction on speech;

• Virginia Tech's computer policy (Policy 7000), as revised in October 2020, is an overbroad and vague restriction on speech, and the computer policy's associated acceptable use standard is a content-based restriction on speech; and

• Virginia Tech's informational activities policy (Policy 5215), as revised in August 2020, is an unconstitutional prior restraint and speaker-based regulation of protected activities.

See Compl., ECF No. 1.

In opposing injunctive relief, Sands argues that (1) Speech First's challenge to the computer policy is moot given a recent revision to the policy; (2) Speech First lacks standing to bring a pre-enforcement challenge to Virginia Tech's policies; and (3) Speech First is not entitled to a preliminary injunction because none of Speech First's claims are likely to succeed on the merits, it has failed to establish irreparable harm on this record, and the balance of equities and public interest weigh against a preliminary injunction. See generally Mem. in Opp'n, ECF No 15. Speech First counters each of these arguments in reply. See Reply in Support of Mot. for Prelim. Inj (“Reply”), ECF No. 17. The court heard oral argument on July 9, 2021.

This case is the sixth and latest^[2] challenge brought by Speech First, a national organization that “works to restore the freedom of speech on college campuses, ” against certain bias response, anti-harassment, and other speech-related policies at public universities. Mot., ECF No. 4, at 1. In this case, Speech First brings its claims on behalf of three of its members who were or are students at Virginia Tech. The students hold conservative views that they describe as “unpopular, controversial, and in the minority on campus, ” and they fear will be punished for expressing these views under the university's various speech-related policies. While the preliminary injunction motion paints Virginia Tech's policies with a broad brush, the court is required to evaluate the language of each policy and its claimed impact on the students' First Amendment rights. As explained further herein, the court will GRANT IN PART Speech First's motion for a preliminary injunction to the extent it seeks to enjoin the computer policy's prohibition on “intimidation, harassment, and unwarranted annoyance, ” and DENY IN PART the motion in all other respects.

I. BACKGROUND

A. The Parties

Speech First is “a nationwide membership organization of students, alumni, and other concerned citizens” that is “dedicated to preserving civil rights secured by law, including the freedom of speech guaranteed by the First Amendment.” Compl., ECF No. 1, at ¶ 10. Speech First asserts that it has members who are current students at Virginia Tech, including Students A, B, and C, who filed anonymous declarations in support of Speech First's motion for a preliminary injunction. See Student A Decl., ECF No. 4-4; Student B Decl., ECF No. 4-5; Student C Decl., ECF No. 4-6. Student B was a senior at the time the complaint was filed in April and graduated in May 2021. See Reply, ECF No. 17, at 20. In its complaint, Speech First says that it “has members who attend the University, including Students A, B, and C.” Compl., ECF No. 1, at ¶ 10 (emphasis added). Speech First's complaint and motion for a preliminary injunction are centered on the concerns of current students. Neither mention possible harm to or requested relief for alumni. In acknowledging Student B's graduation, Speech First does not represent that its standing is premised on any potential harms to Virginia Tech alumni, nor that it intends to amend its complaint or motion accordingly. The court thus has not included Student B's declaration in its analysis. In any event, Student B's views, fears, and intentions are represented-often word for word-in the declarations of Students A and C.

Students A and C's views are, in their words, “unpopular, controversial, and in the minority on campus.” Student A Decl., ECF No. 4-4, at ¶ 4; Student C Decl., ECF No. 4-6, at ¶ 4. Student A identifies as “politically conservative” and Student C identifies as “politically conservative/libertarian.” Student A Decl., ECF No. 4-4, at ¶ 4; Student C Decl., ECF No. 46, at ¶ 4. In general, both students oppose the Black Lives Matter movement, abortion, the use of preferred pronouns, gay marriage, and illegal immigration, and both are strong supporters of gun rights. See Student A Decl., ECF No. 4-4, at ¶¶ 4-11; Student C Decl., ECF No. 4-6, at ¶¶ 4-10. Student A also opposes affirmative action. See Student A Decl., ECF No. 4-4, at ¶ 5.

While the students' beliefs are slightly different, their intentions and fears are identical. Students A and C both say they want to “engage in open and robust intellectual debate” with their fellow students and to “speak passionately and repeatedly” about these issues in class, online, and in the broader community. Student A Decl., ECF No. 4-4, at ¶ 13; Student C Decl., ECF No. 4-6, at ¶ 12. Both students allege that they do not fully express their beliefs, discuss certain topics, or otherwise engage in protected speech because they are aware of Virginia Tech's policies and do not want to face negative repercussions. Student A Decl., ECF No. 44 at ¶¶ 15-20; Student C Decl., ECF No. 4-6, at ¶¶ 14-19. They allege that their reluctance to speak is magnified by the fact that they believe they can be punished for being present during another student's misconduct and appearing to “condone, support, or encourage” it. Student A Decl., ECF No. 4-4, at ¶ 17; Student C Decl., ECF No. 4-6, at ¶ 16.

Speech First highlights that only 20 percent of Virginia Tech students who responded to a recent Gallup survey said they felt comfortable expressing ideas in class that “are probably only held by a minority of people, ” but this is on par with college students at large institutions. Virginia Tech Student Survey (Ex. Y to Norris Decl.), ECF No. 4-2, at 265.^[3] Speech First also notes that, after it filed this lawsuit, a Virginia Tech tenured professor publicly called Students A, B, and C “conservative s[***]bags” who were “suing the school because they're bigots.” Tweet by @prof_gabriele (Ex. V to Norris Decl.), ECF No. 4-2, at 224.

From the defendant's perspective, the Virginia Tech community is oriented around several fundamental principles, including mutual respect, the value of human diversity, and the right of every person to express thoughts and opinions freely. Mem. in Opp'n, ECF No. 15, at 1. Sands argues that Virginia Tech firmly believes that these principles can co-exist, even if Speech First thinks they cannot. Id. Sands notes that, at orientation, students are informed of the university's commitment to protecting a free and open exchange of ideas on campus. O'Rourke Decl., ECF No. 15-8, at ¶ 14. The Student Code of Conduct reaffirms and advises that “[s]tudents at Virginia Tech enjoy those rights guaranteed by the Constitutions of the United States and the Commonwealth of Virginia, ” including those “protected under the First Amendment.” McCrery Decl., ECF No. 15-2, at ¶ 5; Student Code of Conduct (Norris Decl. Ex. D), ECF No. 4-2, at 42. Virginia Tech also hosts a website highlighting the text of the First Amendment and notes that it “values the rights guaranteed by the First Amendment of the United States Constitution and does not intend to restrict the exercise of these rights.” O'Rourke Decl., ECF No. 15-8, at ¶ 9; 2020 Speech on Campus Annual Report (O'Rourke Decl. Ex. B), ECF No. 15-8, at 66-67. It provides information about the importance of freedom of speech in the campus community and has an online tool to report any alleged disruption of constitutionally protected speech. O'Rourke Decl., ECF No. 15-8, at ¶¶ 9-15; 2020 Speech on Campus Annual Report (Ex. B to O'Rourke Decl.), ECF No. 15-8, at 66-67. Sands personally stresses the importance of the First Amendment on campus in universitywide statements and public interviews. Wilkes Decl., ECF No. 15-7, at ¶ 11.

The defendant notes that Virginia Tech has about 750 student groups on campus every year of all shapes and sizes. Wagoner Decl., ECF No. 15-4, at ¶ 6. These organizations “cover[] a remarkable breadth of views, ” some of which are shared, at least in broad strokes, by Students A and C. Id. To start, Sands has shown that Virginia Tech is home to many conservative and libertarian registered student organizations (“RSOs”). See Wagoner Decl., ECF No. 15-4, at ¶ 6. Each of these organizations has between 32 and 100 members. Id. at ¶...