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‘A public official who appears to have punitive authority’ can silence speech

A federal court that refused to halt the University of Michigan’s bias response team and speech-related policies has been ordered to reconsider the merits of a First Amendment lawsuit against the school.

Speech First will get another bite at the judicial apple thanks to the 6th U.S. Circuit Court of Appeals, though not the preliminary injunction it wanted.

The First Amendment nonprofit is representing unnamed conservative UMich students who claim their speech was chilled by vague and overbroad policies on bullying and harassment. They also object to the “elaborate investigatory and disciplinary apparatus” in the university’s bias response team.

In a majority opinion written by Judge David McKeague and joined by Judge Deborah Cook, the 6th Circuit said the trial judge was wrong to see no “implicit threat” to speech from the bias response team, which does not itself have enforcement authority.

“Even if an official lacks actual power to punish, the threat of punishment from a public official who appears to have punitive authority can be enough to produce an objective chill,” the opinion said.

The majority rejected the taxpayer-funded university’s argument that it has never punished a student for protected speech: “This misses the point. The lack of discipline against students could just as well indicate that speech has already been chilled.”

MORE: Trump voters at risk from UMich bias response team

Judge Helene White issued a strong dissent claiming that her colleagues on the panel had no evidence to make such sweeping conclusions about the university’s policies and practices.

“Rather than rely on speculation and fault the University for the absence of evidence—even though Speech First bears the burden on this question—the district court appropriately examined the evidence in the record and correctly concluded that Speech First failed to meet its burden,” White wrote.

The case will now return to U.S. District Judge Linda Parker to reconsider Speech First’s motion for a preliminary injunction against the speech-related policies and team.

“We are gratified” by the ruling, Speech First President Nicole Neily told The College Fix in an email. “We continue to believe that the University’s policies, including the ones it tried to abandon after we filed suit, are blatant violations of the First Amendment. We look forward to vindicating our members’ rights as this litigation progresses.”

A spokesperson for the university told The Fix it was “studying the opinion” but did not answer whether it might seek rehearing by the full appeals court, given the strong dissent by Judge White.

Refusing ‘invitation’ could carry ‘implicit threat of consequence’

The university tried to get the lawsuit dismissed on multiple fronts.

Shortly after being sued by Speech First, a membership association that specifically targets universities with bias response teams, UMich revised the two policies targeted in the lawsuit, which now simply reflect state law. (The Trump administration sided with Speech First the same day.)

That quick change meant the lawsuit was moot, according to UMich, and Judge Parker credited the move as evidence the university cares about free speech. UMich also argued that Speech First doesn’t have “associational standing” to represent the unnamed students.

The 6th Circuit majority largely disagreed, citing the university’s continued defense of its original policies and suspicious timing when revising them. It suggests the university might reimpose its old policies if the lawsuit is dismissed as moot, the opinion said.

It upheld the standing of Speech First to challenge the bias response team, saying its student members face an “objective chill” to their speech.

MORE: UMich won’t punish speech with ‘legitimate purpose’ in response to suit

They have demonstrated more than “the mere existence … of a governmental investigative and gathering activity,” the opinion continued, citing the team’s ability to refer alleged bias incidents to the Office of Student Conflict Resolution or even campus police. Those entities have the power to punish students, and this referral power “objectively chills speech.”

Specifically rejecting Judge Parker’s claims, the majority said declining an “invitation” to meet with the team “could carry an implicit threat of consequence.” A student who knows her alleged bias could be referred to OSCR or the policy might view the invitation as compulsory.

Speech First can also challenge the two original policies, which were based on dictionary definitions of “bullying” and “harassment,” the opinion said. The fear of punishment is credible because the university punished 16 students for bullying or harassment from 2016 to 2018, showing a “concrete and objective threat of harm” to the unnamed students.

The majority got technical here, explaining that Speech First is making a “facial” challenge to the policies and not an “as-applied” challenge. That means the policies are unconstitutional however they are applied, rather than how they were applied to Speech First members. The standing requirement is lower for the former challenge, the opinion said.

Was the policy revision ‘genuine’ or convenient for the moment?

The 6th Circuit said the university’s mootness argument depends on whether it could resurrect the policies it changed after Speech First sued. There must be “no reasonable expectation that the alleged violation will recur.”

But UMich has done nothing that it can’t quickly reverse, such as “enacting new legislation or repealing the challenged legislation.” It hasn’t even shown that it would have to go through “a formal process to change the definitions” of bullying and harassment again.

The university claims it’s enough that Vice President for Student Affairs Royster Harper testified that the new definitions alone “will govern” disciplinary proceedings. But there’s no evidence that Harper or any successor even has control over policy development, the opinion said: “[I]t is difficult to understand why that statement should be construed to have any binding or controlling effect as far as mootness goes.”

And by revising the policies after the suit was filed, the university may have increased its burden to prove that the change was “genuine,” according to the majority. While UMich claimed that the suit only accelerated an earlier “review” of the bullying and harassment policies, it has not shown that it was even considering a change.

The opinion mocked the administration’s claim that it was not defending the constitutionality of the original policies, but simply arguing against Speech First’s motion to suspend them. “If those arguments do not constitute a defense of its practices, we would be hard pressed to come up with anything that would.”

Only one student known to have accepted ‘invitation’ to meet with bias team

Judge White scolded her colleagues on the three-judge panel for making an argument that Speech First did not “fully develop” in arguing for standing.

It’s not clear on the record whether the bias response team makes referrals to the OSCR or campus police, and a bias response team member testified that the team itself does not make an “independent determination” whether a rule violation occurred.

There’s also nothing stopping a member of the university community from filing complaints without involving the bias response team, White wrote in her dissent. Therefore, the team “poses no threat of a concrete harm.”

This case is nothing like the one the majority cited to support its conclusion: a Rhode Island “morality commission” that sent de facto “orders” to a distributor to stop selling publications that were “inappropriate for minors.” The notices were “invariably followed up by police visitations,” White wrote.

There’s only one documented instance of the target of a bias complaint even agreeing to meet with the team, “strongly supporting an inference that students do not feel compelled to meet,” the judge said.

MORE: Judge doesn’t see ‘implicit threat’ from UMich bias team

White disagreed with her colleagues about the relevance of the “facial” as opposed to “as-applied” challenge.

The 6th Circuit precedent the majority ignored, but White finds useful, is known as Morrison. It involved a student who claimed his stated opposition to homosexuality would be punishable under his high school’s policy against “stigmatizing” gay students.

The appeals court found that he chilled himself with no objective basis, and hence lacked standing. The student had made an as-applied challenge – he didn’t question the constitutionality of the policy on its face.

White took the word of university officials that they had never even threatened “disciplinary action” against students with views similar to those of Speech First’s members. The university’s written policies also pass muster with the judge.

“Speech First submitted no contradictory evidence,” and most of the 16 cases brought under the harassment or bullying policies “involved violence or threats of violence,” not protected speech, the judge wrote.

Neither Speech First not the 6th Circuit in Morrison made the distinction between facial and as-applied challenges, White continued. “[W]e have cited Morrison and applied the standard from Morrison in determining whether a plaintiff has standing to assert a facial challenge, including to a university’s policy.”

MORE: Trump admin denounces UMich bias team as unconstitutional

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