Speech First v. Fenves

On October 30, 2020, a three-judge panel of the Fifth Circuit held that university speech policies that arguably infringe on students’ First Amendment rights can be challenged by a student association even if the policy was subsequently revised and never enforced against members of the association.  In Speech First, Inc. v. Gregory L. Fenves, Case No. 19-50529 (Oct. 30, 2020), the court reversed the trial court’s dismissal of the case and ruled that a conservative student association had standing to challenge the University of Texas’ rules and policies governing speech on campus and remanded the case to the trial court for further consideration.  The case is indicative of how courts may handle the mounting court challenges by student associations to speech regulations on campuses around the country.

The Fifth Circuit first addressed the university’s argument that, because it had altered its policies to remove much of the challenged language after the plaintiff appealed to the Fifth Circuit, the appeal was now mooted.  The Court noted that at least one of the policies still contained language challenged by the plaintiff and, more fundamentally, held that it could still consider the substance of the appeal despite the changes to the policies.

The court then addressed the university’s argument that its rules don’t proscribe speech of the type Speech First’s members intended to partake.  The students alleged they hold conservative viewpoints that are not popular on campus and fear they will be reported in violation of campus policies if they air their beliefs.  The court noted the terms at issue in the policies made it impossible to find that the student’s intended speech is not likely covered by the policy.  “[T]he Institutional Rules qualify protected speech and fail to cabin the terms ‘harassment,’ ‘intimidation,’ ‘rude[eness],’ ‘incivility,’ and ‘bias.’”

Finally, the Court declined to accept the university’s argument that, because it had not in the past, and indicated it would not in the future, interpret the rules to infringe students’ free speech rights, the plaintiff had no standing.  The court found there was evidence the school still intended to enforce the policies at some level.  Coupled with the court’s finding that the policies were vague, the court held that there was a threat of future enforcement of the policies against a class of students who speech was arguably restricted by those policies.  The Fifth Circuit concluded its opinion by remanding the case with instructions to consider the merits of the injunctive relief sought, given that the trial court had dismissed the case for lack of standing without reaching the merits.

The University of Texas is not alone in its struggle to balance free speech rights with efforts to create a campus environment welcoming to students with varying viewpoints.  Since 2000, the University of Michigan, University of Illinois, Iowa State University, the University of Cincinnati, the University of Wisconsin-Madison, Temple University, University of Houston, San Francisco State University, Los Angeles Pierce College, and the University of the Virgin Islands, have had campus speech policies challenged on bases such as vagueness or unconstitutional breadth.  It is reasonable to expect, in a country filled with impassioned debate various political and social issues, we will continue to see legal challenges to university efforts to balance interests and rights.