This afternoon, my colleagues and I at the Alliance Defense Fund filed two simultaneous cert petitions to the Supreme Court. The issue: Can students challenge university speech codes in court when those codes chill their free-speech rights, or must they wait until the university formally and officially punishes their speech? Until two recent decisions by the Ninth and Fourth Circuits, the answer to this question had been clear. Students could challenge unconstitutional policies that “chilled” their speech — even if the policies had not been enforced against them. This was and is the position of the Third, Sixth, and Seventh Circuits, as well as multiple federal district courts.
The reason for the conventional and traditional “standing” rules is simple and compelling. We place such value on free speech that we don’t want citizens silencing themselves for fear of punishment. Most people are law-abiding, fewer still are constitutional scholars, and when they see policies that purport to ban “offensive” speech, they steer their words around the subjectively perceived sensibilities of their listeners. The effect on the marketplace of ideas — especially on campus — is profound. Virtually every campus has a very loud and vibrant victim/grievance community, and even the most tentative of dissenting statements can sometimes lead to extraordinarily punitive action.
Our Ninth Circuit case, Lopez v. Candaele, is a perfect example of this phenomenon. In Lopez (a case I’ve written about before), the plaintiff delivered an “informative speech” about Christianity in response to a speech class assignment. In the middle of the speech he mentioned — in passing — the dictionary definition of marriage as the union of a man and woman. His professor stopped the class, called Lopez a “fascist bastard,” denied him a grade on the assignment (he wrote “Ask God what your grade is” on the evaluation sheet), admonished him to comply with university policies, and then threatened him with expulsion when Lopez complained about his treatment. Since that incident, Lopez has been understandably reluctant to speak out on issues related to his faith.
The District Court enjoined the university’s speech code, but the Ninth Circuit reversed, holding that Lopez had not suffered sufficient “injury” to challenge the policy. To say this ruling conflicts with other circuits would be an understatement. The Third, Sixth, and Seventh Circuits follow conventional standing rules and allow students to mount “pre-enforcement” facial challenges to school policies — with the Third and Seventh Circuits extending this principle to high school — when the students demonstrate that those policies “chill” their speech.
It’s hard to imagine a greater “chill” than the chill from university speech codes. These policies (usually in the guise of anti-harassment or nondiscrimination rules) apply to literally every human interaction on (and sometimes off) campus. Any person can complain about any conversation, and no campus space or experience is excluded from their reach. And with speech codes at hundreds of universities, the stakes for free speech are very high indeed.