Speech First, Inc. v. Cartwright

32 F.4th 1110

SPEECH FIRST, INC., Plaintiff-Appellant,

v.Alexander CARTWRIGHT, in his individual capacity and his official capacity as President of the University of Central Florida, Defendant-Appellee,Dana Juntenen, in her official capacity as Director of the University of Central Florida Office of Student Rights and Responsibilities and Assistant Dean of Students, et al., Defendants.

No. 21-12583

United States Court of Appeals, Eleventh Circuit.

Filed: May 2, 2022

Cameron Thomas Norris, John Michael Connolly, James F. Hasson, Daniel Joseph Shapiro, Consovoy McCarthy, PLLC, Arlington, VA, for Plaintiff-Appellant.

Alexander R. Bilus, Joshua W. B. Richards, Counsel, Tricia Marie Kazinetz, Saul Ewing Arnstein & Lehr, LLP, Philadelphia, PA, Steven Myer Appelbaum, Saul Ewing Arnstein & Lehr, LLP, Miami, FL, for Defendant-Appellee.

Michael Lee Francisco, McGuireWoods, LLP, Washington, DC, Mathew Hoffmann, Alliance Defending Freedom, Lansdowne, VA, for Amicus Curiae Alliance Defending Freedom.

Ilya Shapiro, Cato Institute, Washington, DC, for Amicus Curiae Cato Institute.

Ronald London, Foundation for Individual Rights in Education, Faculty Legal Defense Fund, Washington, DC, for Amicus Curiae Foundation for Individual Rights in Education.

Erik S. Jaffe, Schaerr Jaffe, LLP, Washington, DC, for Amicus Curiae Independent Women's Law Center & American Council of Trustees and Alumni.

Jeffrey Jennings, Liberty Justice Center, Chicago, IL, for Amicus Curiae Liberty Justice Center.

Kimberly Stewart Hermann, Southeastern Legal Foundation, Inc., Roswell, GA, Celia Howard O'Leary, Southeastern Legal Foundation, Roswell, GA, for Amicus Curiae Southeastern Legal Foundation.

Before Newsom and Marcus, Circuit Judges, and Story,^* District Judge.

Newsom, Circuit Judge:

The Court sua sponte VACATES its prior opinion, published at 2022 WL 1192438 (11th Cir. Apr. 21, 2022), and substitutes the following in its place.

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In this appeal from the denial of a request for a preliminary injunction, we are asked to decide whether two speech-related policies promulgated by the University of Central Florida—one that prohibits multiple forms of expression that are deemed to constitute "discriminatory harassment" and another that aims to address so-called "bias-related incidents"—likely violate the First Amendment. We must also decide, as a threshold matter, whether the plaintiff—an organization called Speech First, Inc.—has standing to challenge the policies’ constitutionality.

We hold (1) that Speech First has standing to sue because the challenged policies chill its members’ speech and (2) that the discriminatory-harassment policy likely violates the First Amendment on the grounds that it is an overbroad and content- and viewpoint-based regulation of constitutionally-protected expression. Because the district court never considered the bias-related-incidents policy's constitutionality on the merits—having erroneously concluded that Speech First lacked standing to challenge it—we remand for a determination of that issue.

I

A

Speech First, Inc. is a voluntary member organization dedicated to protecting students’ free-speech rights. It represents students who attend universities across the country, including the University of Central Florida. Several of Speech First's UCF-based members have attested that they desire to express their beliefs and opinions about a range of topics but are inhibited from doing so by two University policies, which we'll call the "discriminatory-harassment" and "bias-related-incidents" policies, respectively, and which we'll describe in detail below.

One student, for instance—identified as "Student A" in Speech First's complaint—says that he wishes to express his views that "abortion is immoral," that the government "should not be able to force religious organizations to recognize marriages with which they disagree," that "affirmative action is deeply unfair," that "a man cannot become a woman because he ‘feels’ like one," and that "illegal immigration is dangerous." He asserts that he desires to "speak passionately" about those (and other) topics, that he wishes to "engage in open and robust intellectual debate" about them, and that he hopes to "encourage [other students] to change their minds or, at a minimum, to understand his views." Finally, he says that he "does not fully express himself or talk about certain issues because he fears" that sharing his beliefs may subject him to the University's discriminatory-harassment policy, bias-related-incidents policy, or both. Two other UCF students—identified as "Student B" and "Student C"—have expressed similar desires and fears.

B

Before we go any further, we should describe the challenged policies in some detail. Rather than characterize them—and in the interest of providing the fullest possible context—we will lay out their relevant provisions in full.

First, the discriminatory-harassment policy. As its name indicates, the policy prohibits "discriminatory harassment," which it defines in the following terms:

Discriminatory harassment consists of verbal, physical, electronic or other conduct based upon an individual's race, color, ethnicity, national origin, religion, non-religion, age, genetic information, sex (including pregnancy and parental status, gender identity or expression, or sexual orientation), marital status, physical or mental disability (including learning disabilities, intellectual disabilities, and past or present history of mental illness), political affiliations, veteran's status (as protected under the Vietnam Era Veterans’ Readjustment Assistan[ce] Act), or membership in other protected classes set forth in state or federal law that interferes with that individual's educational or employment opportunities, participation in a university program or activity, or receipt of legitimately-requested services meeting the description of either Hostile Environment Harassment or Quid Pro Quo Harassment , as defined [below].

Discriminatory harassment may take many forms, including verbal acts, name-calling, graphic or written statements (via the use of cell phones or the Internet), or other conduct that may be humiliating or physically threatening.

The policy, in turn, defines "Hostile Environment Harassment" as follows:

Discriminatory harassment that is so severe or pervasive that it unreasonably interferes with, limits, deprives, or alters the terms or conditions of education (e.g., admission, academic standing, grades, assignment); employment (e.g., hiring, advancement, assignment); or participation in a university program or activity (e.g., campus housing), when viewed from both a subjective and objective perspective.

The policy states that "[i]n evaluating whether a hostile environment exists, the university will consider the totality of known circumstances, including, but not limited to" the following factors:

• The frequency, nature and severity of the conduct;

• Whether the conduct was physically threatening;

• The effect of the conduct on the complainant's mental or emotional state;

• Whether the conduct was directed at more than one person;

• Whether the conduct arose in the context of other discriminatory conduct or other misconduct;

• Whether the conduct unreasonably interfered with the complainant's educational or work performance and/or university programs or activities; and

• Whether the conduct implicates concerns related to academic freedom or protected speech.

The policy's definition of "Hostile Environment Harassment" goes on to state (1) that "[a] hostile environment can be created by pervasive conduct or by a single or isolated incident, if sufficiently severe," (2) that "[t]he more severe the conduct, the less need there is to show a repetitive series of incidents to prove a hostile environment, particularly if the conduct is physical," and (3) that "an isolated incident, unless sufficiently serious, does not amount to Hostile Environment Harassment."

There is one last piece of the discriminatory-harassment puzzle. Referencing the discriminatory-harassment policy, UCF's Student Handbook states that "[s]tudents are prohibited" not only from engaging in the prohibited conduct themselves, but also from "[c]ondoning or encouraging acts of harmful behavior as defined [in the discriminatory-harassment policy] or failing to intervene during an act of harmful behavior while it is occurring."

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So, in sum: The discriminatory-harassment policy prohibits "verbal, physical, electronic, or other conduct" based on a long list of characteristics including, among others, "religion [or] non-religion," "genetic information," and "political affiliation[ ]." The policy applies to any conduct that, for instance, "unreasonably ... alters" another student's "participation in a university program or activity." It specifies that discriminatory harassment "may take many forms"—including, broadly, "verbal acts, name-calling, graphic or written statements ... or other conduct that may be humiliating"—and it utilizes a "totality of known circumstances" approach, based on a non-exhaustive list of factors, to determine whether a speaker's expression satisfies the "unreasonabl[e] ... alter[ation]" standard. Lastly, the policy prohibits students not only from committing the specified acts, but also from "[c]ondoning," "encouraging," or even "failing to intervene" to stop them.

Separate from the discriminatory-harassment policy—but seemingly aimed at addressing similar issues—UCF maintains a policy which seeks to prevent and redress what it calls "bias-related incidents." The "Bias-Related Incidents" policy has several parts. First, it defines the key term—"bias-related incident"—as follows:

A bias-related incident is any behavior or action directed towards an individual or group based upon actual or perceived identity characteristics or background. This bias motivates an individual to act in an offensive manner towards an individual or group including but not limited to: race, sex (including

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