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Speech First v. Fenves: A Challenge to University Speech Policies

Reports First Amendment

Speech First, Inc. v. Fenves, No. 19-50529 (5th Cir. Oct. 28, 2020). Complaint hosted by

On October 28, 2020, the Fifth Circuit Court of Appeals issued its decision in Speech First v. Fenves. The Court held that Speech First, a national free speech advocacy organization, had standing to challenge the University of Texas’s (“UT”) speech codes on behalf of three UT students.

Speech First filed a complaint in the District Court for the Western District of Texas against UT, alleging that UT’s speech codes placed unconstitutionally “vague and overbroad prohibitions on student speech” in violation of the First and Fourteenth Amendments. Specifically, Speech First was troubled by speech policies restricting students from making verbal or written statements that could be considered “offensive,” “biased,” “rude,” “uncivil,” or “harassing” by other members of the UT community. In addition, Speech First expressed concerns about the Campus Climate Response Team (“CCRT”), an official university body that investigates bias incidents and can report conduct for university discipline or to the police. Speech First sought declaratory and injunctive relief, arguing the vagueness of UT’s speech codes and the threat posed by CCRT caused students’ injury by chilling free discourse on campus and deterring students from sharing potentially unpopular yet constitutionally protected perspectives.

The District Court dismissed the complaint, claiming Speech First lacked standing to challenge the speech codes. Standing requires that plaintiffs “(1) have suffered an injury in fact, (2) that is fairly traceable to the challenged action of the defendant, and (3) that will likely be redressed by a favorable decision.” Because UT’s administration had already announced it would not punish students for engaging in protected speech, the district court found that there was no “credible threat of enforcement.” Thus, the District Court determined that students’ self-censorship was not “objectively reasonable.”

The Fifth Circuit vacated this decision, holding that “[t]he chilling effect of allegedly vague regulations, coupled with a range of potential penalties... was… sufficient ‘injury’ to ensure that Speech First ‘has a personal stake in the outcome of the controversy.’” Further, the Fifth Circuit expressed its commitment in protecting “speech in the Constitution’s care.”

Several organizations filed amicus briefs in support of Speech First’s criticism of university speech codes. The Pacific Legal Foundation (“PLF”) wrote that, under UT’s speech codes, “students like Speech First’s members will face accusations of bias for engaging in controversial, but protected, speech.” Furthermore, PLF asserted UT could have employed alternative, less restrictive policies to ensure inclusion while protecting First Amendment rights. A jointly filed amicus brief by the Cato Institute, the Goldwater Institute, and the Texas Public Policy Foundation and a separate brief from the Foundation for Individual Rights in Education (“FIRE”) amplified Speech First’s criticism by noting that vague and overbroad speech policies adopted by UT and other institutions create a chilling effect on open discourse and can coerce students into self-censorship.

Advocates of campus speech policies would likely disagree with the critiques raised by the amici. Proponents support campus speech codes for fostering equitable and inclusive discourse for all students, regardless of their background. Many schools justify speech codes by pointing out that reducing offensive speech can enhance the educational process,teaching students to express their ideas with rationality and empathy while limiting the interruption and pain that hateful speech can cause. Notably, speech policies can promote safety for students from underrepresented backgrounds or underserved communities who “cannot claim fair and equal access to freedom of speech … when there is an imbalance of power between them and students in the majority.” Therefore, advocates of speech policies claim that the harm these “codes prevent is more important than the freedom they restrict.”

Finally, organizations like the American Civil Liberties Union (“ACLU”) recognize the issues raised by unabridged free speech on university campuses, but view campus speech restrictions as “quick fixes” to problematic speech instead of effective long-term solutions. The ACLU suggests schools should instead focus their efforts on addressing underlying issues by “recruit[ing] diverse faculty, students, and administrators; increas[ing] resources for student counseling; and rais[ing] awareness about bigotry and its history.” This approach has potential to strike a balance between maintaining free speech on campus and ensuring safety, equity, and inclusion for all while promoting dialogue across lines of difference.

The Fifth Circuit’s decision will give students like those represented by Speech First the opportunity to challenge university speech codes in court. Given the vocal opinions on both sides, only time will tell what impact this type of litigation will have on university speech codes.