Friday, August 17, 2018
The United States Court of Appeals for the Fourth Circuit affirmed a decision that campus free speech rights were not violated by the University of South Carolina
In 2015, two student groups at the University of South Carolina sought approval for a “Free Speech Event” to highlight perceived threats to free expression on college campuses. According to the groups, the event they were planning would include visual displays of material that had provoked free-speech controversies at other schools, including a swastika. The University approved, and the Free Speech Event took place on campus without interference.
The event did, however, generate complaints from other students, who objected to the displays and accused its sponsors of making sexist and racist statements at the scene. A University official met with Ross Abbott, one of the event’s student sponsors, to review the complaints and determine whether an investigation was warranted. A few weeks later, he notified Abbott that there was no cause for investigation and that the matter had been dropped.
The result was a First Amendment action against the University, filed by Abbott and the two student groups behind the Free Speech Event. According to Abbott and the other plaintiffs, University officials violated their First Amendment rights when they required Abbott to attend a meeting to discuss complaints about their event. The plaintiffs also mounted a facial challenge to the University’s general policy on harassment, arguing that it is unconstitutionally vague and overly broad. The district court rejected both claims and entered summary judgment for the University defendants.
We agree with the district court and affirm on both counts. The University neither prevented the plaintiffs from holding their Free Speech Event nor sanctioned them after the fact. Its prompt and minimally intrusive resolution of subsequent student complaints does not rise to the level of a First Amendment violation. And because the plaintiffs cannot show a credible threat that the University will enforce its harassment policy against their speech in the future, they lack standing to pursue their facial attack on the policy.
The complaint had alleged a section 1983 violation
This is an unusual First Amendment claim. University officials approved the plaintiffs’ Free Speech Event, knowing that it would include displays of a swastika and other controversial material; allowed the plaintiffs to hold their Event in the precise campus location they requested; did nothing to interfere with the Event as it transpired; and imposed no sanction on the plaintiffs after the fact, notwithstanding student complaints...As a result, the plaintiffs are left to argue that the very fact of a University inquiry into those complaints – and, in particular, the requirement that Abbott meet with Wells to discuss the complaints and the Event – violated their First Amendment rights.
The court rejected the claim that the University "chilled" free speech rights.
What is clear,,,is that a threatened administrative inquiry will not be treated as an ongoing First Amendment injury sufficient to confer standing unless the administrative process itself imposes some significant burden, independent of any ultimate sanction.
...we have a University that approved and encouraged a speech event intended to be controversial, with the knowledge that it would cause “[d]iscomfort.” J.A. 156. And in the face of student complaints, the University made no effort to sanction that speech after the fact. The plaintiffs suggest that a ruling against them will make it impossible for any student to mount a successful challenge to an overly broad campus harassment policy, but we must disagree. Our decision today is limited to the facts before us, and the courthouse door remains open to the claims of students who experience cognizable restrictions on their right to free expression.
Circuit Judge Harris authored the opinion. (Mike Frisch)