Banner Day for the 1st Amendment

Aside from Leakgate, the other big legal news from the Supreme Court yesterday was its unanimous ruling that the City of Boston exercised impermissible discrimination against religious freedom with its refusal to fly a Christian flag over city hall while allowing flags from some 200 other organizations. Justice Stephen Breyer wrote the opinion, saying “When the government encourages diverse expression — say, by creating a forum for debate — the First Amendment prevents it from discriminating against speakers based on their viewpoint.” (Just a hunch, but I’ll bet his confirmed replacement doesn’t believe this.)

But a related opinion from the federal 11th Circuit Court of Appeals released yesterday to little media attention may be more significant. Speech First v. Cartwright dealt with a challenge to the University of Central Florida’s “bias incident response” policy, and the 3 – 0 opinion is a savage beatdown of current campus orthodoxy.

UCF had imposed an “anti-discrimination” policy that included this vague definition of harassment:

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 further states that “[i]n evaluating whether a hostile environment exists, the university will consider the totality of known circumstances, including, but not limited to” several factors, which UCF admitted in court were hard to define clearly and were subjective in many cases.

But UCF didn’t let it stand with just a declaration. It established a “bias incidents reponse” process that set loose something called the “Just Knights Response Team” (JKRT), which UCF describes as follows:

The purpose of the Just Knights Response Team (JKRT) is to act as a clearinghouse for any bias-related incidents that may occur on UCF campuses. In this role, the JKRT will receive, monitor, refer, and, as necessary, coordinate university resources to these incidents that impact the university community. 

The team, made up of UCF faculty, staff, and stu-dents, provides a safe space for students, who are wit-nesses to or targets of bias, to communicate experi-ences, to ensure comprehensive responses, and pro-actively address issues of civility and respect. 

You don’t need to be well-versed in Orwell to figure out the practical meaning of this. The opinion describes specific students at UCF who feared running afoul of the policy:

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-in-cidents policy, or both. Two other UCF students—identified as “Student B” and “Student C”—have expressed similar desires and fears. 

Much of the opinion has to deal with the usual problems of standing and then the legal threshold for likely success in claiming injury on the merits back in district court once standing is granted. But after clearing away those procedural matters, the judges come down very hard on UCF. Judge Kevin Newsom wrote that the UCF policy “objectively chills speech because its operation would cause a reasonable student to fear expressing potentially unpopular beliefs.” More:

The discriminatory-harassment policy’s imprecision exacerbates its chilling effect. To take just one example, what does it mean for one student’s speech to “unreasonably . . . alter[]” an-other student’s educational experience? Both terms—“unreasonably” and “alter[]”—are pretty amorphous, their application would likely vary from one student to another, and the University’s totality-of-known-circumstances approach to determining whether particular speech crosses the line only makes matters worse. To be clear, these concerns aren’t speculative. At oral argument, we asked the University’s lawyer a series of questions about whether particular statements would violate the discriminatory-harassment policy: (1) “abortion is immoral”; (2) “unbridled open immigration is a danger to America on a variety of levels”; and (3) “the Palestinian movement is antisemitic.” To his considerable credit—but to the policy’s considerable discredit—he candidly acknowledged that while “it d[id] not sound to [him]” like the speech would be proscribed under the policy, he couldn’t say for sure because “the University will consider all the facts and circumstances there” and because he couldn’t “prejudge everything.”  If UCF’s own attorney—as one intimately familiar with the University’s speech policies—can’t tell whether a particular statement would violate the policy, it seems eminently fair to conclude that the school’s students can’t either.  

Hence the court’s conclusion: “The discriminatory-harassment policy is almost certainly unconstitutionally overbroad. . . The University’s policy isn’t just overbroad, it’s also an impermissible content- and viewpoint-based speech restriction—or, at the very least, likely so. . . the discriminatory-harassment policy likely goes beyond content-discrimination to discriminate on the basis of viewpoint.”

The reason for the tentative-sounding language is purely procedural, as the case will be remanded back to the district court, though this kind of language is to instruct the district court on how it should rule.

Even more blunt is the concurrence from Judge Stanley Marcus, who was appointed to he appeals bench by President Clinton:

I write separately to underscore the grave peril posed by a policy that effectively polices adherence to intellectual dogma. History provides us with ample warning of those times and places when colleges and universities have stopped pursuing truth and have instead turned themselves into cathedrals for the worship of certain dogma. By depriving itself of academic institutions that pursue truth over any other concern, a society risks falling into the abyss of ignorance. Humans are not smart enough to have ideas that lie beyond challenge and debate. A discriminatory-harassment policy that assumes the most popular idea or the idea that least “interferes with, limits, deprives, or alters the terms or conditions of education” is the correct one is plainly at odds with the First Amendment and our notion of free speech. . .

A university that has placed its highest premium on the protection of feelings or safe intellectual space has abandoned its core mission. The protection of feelings or the creation of safe space rightly might be the foremost goal in some settings, like at a family dinner, but it is not right for a university.

A university that turns itself into an asylum from controversy has ceased to be a university; it has just become an asylum.

I herewith propose everyone begin referring to UCF (and similar institutions) as the “Asylum of Central Florida.”