Free Speech and Due Process

The Eleventh Circuit United States Court of Appeals recently rendered an interesting 42-page opinion in Speech First, Inc. v. Alexander Cartwright and Dana Juntenen, No. 21-12583 (May 2, 2022). Mr. Cartwright is President of the University of Central Florida, Ms. Juntenen is Assistant Dean of Students, and Speech First is an interest group concerned with protection of First Amendment rights.

The opinion is enlightening and describes in some detail the challenges of balancing the rights of various groups and individuals. In a free society, there will be speech that is not to some individual's liking and how the law balances the obligations or desires to regulate against the protection of rights is of interest in that context. The opinion is also devoted largely to the concept of "standing," and provides insight to the legal process in terms of the role of trial and appellate courts.  

Standing is a legalism that refers to someone having a real interest in the outcome of litigation, that is that the litigation will affect them personally and actually instead of just generally or hypothetically. In teaching constitutional law, I often explain to students that they might be outraged if their neighbor's house is destroyed, but they likely lack standing to sue those who destroyed it. The neighbor, whose house it is, more clearly suffers the direct impact or damage to have standing to sue.

Standing is critical in workers' compensation. An employee has standing to seek benefits, granted by statute. The employer has standing to resist such a claim. Most of the Florida workers' compensation law imposes duties on the employer, which it may then convey to a carrier through contract (thus contractually involving the carrier in a meaningful way and creating standing). In various sections of the law there are also requirements directed specifically at carriers, and thus conveying statutory standing outside of the contractual realm. Standing may also be afforded to interest groups who have sufficient interest in the outcome, see It is Padgett Time (June 2015). 

Many forget that in society it is possible and often probable that the rights of one person may infringe on the rights of another. In Fundamental Rights (April 2019), I expounded upon these conflicts and the involvement of government with its powers, which we the people granted it. I got great feedback on that post including from one scholar who questioned what the law and the Constitution has to do with workers' compensation. That question in itself was intriguing. In case that is unclear, all of workers' compensation is based upon statutes and all statutes are subject to consistency with state and federal constitutions. 

Speech First involves the discussion of suppression of speech on American school campuses. There is a perception of some that free speech is threatened in our modern society. An interesting overview is provided by the American Association of University Professors. It notes belief that

“many of the most difficult issues surrounding free speech at present are about balancing unobstructed dialogue with the need to make all constituencies on campus feel included.”

There is, in the view of some, an inherent friction between someone speaking her/his mind and the feelings and sentiments of those who happen to hear. That article acknowledges a conclusion that the situation is perceived as worsening and that debate is subject to "balancing of competing demands." As an aside, I was exposed to a fair amount of unwanted and repulsive speech in my college tenure, and somehow I survived that. In fairness, little if any of it was directed at me, or was hateful and spiteful. My personal experience may not mirror that of others, and it is probable that we each have our own personal level of tolerance for any category or volume of offensive speech. 

A majority of Americans has expressed discontent with the First Amendment. The Daily Mail reported in 2019 that there is some belief that people speaking their minds is out of step with "cultural norms of today." Those norms, it seems, must be protected by suppressing the thoughts and ideas of those who hold different views, at least according to some schools of thought. Justice Brandies confronted such suppression sentiment in Whitney v. California, 274 U.S. 357 (1927). He explained the strength of the First Amendment in affording all the right to speak:

“If there be time to expose through discussion, the falsehoods and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”

This concurring opinion brilliance has come to be known as the "counterspeach doctrine," and recognizes that we may all dislike various ideas, not respect certain speakers, or be offended, disturbed, or even hurt by speech. This is perhaps in the vein of our kindergarten mantra of "sticks and stones may break my bones, but words will never hurt me." Even that mantra has been assailed more recently with some advocating instead that "sticks and stones may break my bones, but words can do permanent damage." Possibly. To whom? Which words? Who will judge? On what standard? So many questions come to mind. 

In some contexts, American courts have been sympathetic to the solutions of changing a channel or averting one's eyes from speech that is offensive or uncomfortable. That may be easier in an airport terminal or public street (averting eyes), or perhaps in your own vehicle (changing a radio channel, or in today's world skipping on Pandora or Spotify). The avoidance mechanisms may be more difficult in the education setting that is described in Speech First; in a classroom setting some students may be potentially compelled by attendance requirements or participation grading to remain exposed to uncomfortable, offensive, or even hateful speech. Thus, perhaps explaining the schools' perception of some need to legislate restraint on speech.  

Speech First sued over two policy decisions regarding the regulation of speech on that campus. Recognizing the inherent potential for ideas to conflict, for feelings to bruise, and for sentiments to differ, the university entered the speech fray by enacting constraints on speech on campus. Notably, you are each free to do the same in your home without fear of repercussion. However, when government (state universities are an arm of government) acts with its power in a manner that constrains the rights of we the people, then the conflict between rights and duties may become one for the courts. 

This University adopted "two speech-related policies." The first "prohibits multiple forms of expression that are deemed to constitute 'discriminatory harassment.'” The second is directed at “bias-related incidents.” The court's opinion is interesting reading, and is lengthy (42 pages). Much of the discussion is devoted to whether Speech First has "standing," that is the right to pursue relief. The Court concludes that it does, essentially because it is asserting rights that its members could assert in their own right. The analysis in this regard is exceptionally well explained and clear. 

The views that are front and center in this dispute are of a particular student who fears university retribution or consequence for expressing:

"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.'"

The student is concerned about university action regarding such expressions and asserts that he self-censors as a result, that he “does not fully express himself or talk about certain issues because he fears” the consequences of university policy.

The court outlines the UCF "discriminatory-harassment policy," which precludes "verbal, physical, electronic or other conduct based upon an individual’s race, color, ethnicity, national origin, religion . . ." and more, "that interferes with that individual’s educational or employment opportunities," school or activity participation or receipt of services. Included in this broad umbrella is "name calling" or "other conduct that may be humiliating or physically threatening."

In order to preclude such interference with a student, there are standards in the policy to evaluate whether activity or words render an environment on campus "hostile." This includes interpretation of the conduct or words, frequency, severity, whether it is threatening, the impact on the victim's emotional state, impact on the victims studies or activities, and the extent to which activity is protected by freedom of speech (First Amendment). Notably, these are perhaps somewhat, or even wholly, subjective.

The court referred to the policy as a "discriminatory-harassment puzzle," which not only precluded such action or words, but also prohibited students from “[c]ondoning or encouraging acts of harmful behavior," and/or "encouraging" and/or "failing to intervene during an act of harmful behavior." Thus, any student as a bystander is potentially at fault and subject to punishment for not intervening to prevent bullying or harassment, and what is or is not harassment, is or is not protected speech, is less than clear. Thus, the policy potentially implicates a great many people simply going about her/his daily business, and who are just as reluctant to become involved in people's speech as they would be to intervene in a fistfight (or what they might or might not personally perceive as a fist fight).

The second university policy is "seemingly aimed at addressing similar issues." This affords a process for addressing "bias-related incidents," which are "any behavior or action directed towards an individual or group based upon actual or perceived identity characteristics or background." This includes physical injury, signs, graffiti, gestures, stalking, and more, specifically acts that are "legal, illegal, intentional, or unintentional.” There is an official campus group empowered by this policy to address such incidents, called the "Just Knights Response Team (JKRT)" (made up of UCF students, faculty, and staff; the school mascot is the Knight).

The "bias-related incidents" process allows anonymous reporting of any such "bias-related incident" and empowers the "JKRT team to ensure the most appropriate university response." This is held out by the school as promoting a university (government) goal of "creat(ing) a more inclusive and diverse campus" as well as "providing a safe and welcoming living and learning community for all our students." The subjectivity of what is or is not biased is thus to be determined in retrospect by this panel of appointed experts, perhaps with each exercising her/his own subjective measure, perspective, or bias. 

The Court concluded that the Free Speech members suffered a “concrete and particularized” injury in that they allege "a deprivation of their First Amendment right to free speech," as a result of " UCF’s policies." Noting some lack of clarity in how courts have construed whether harm is “imminent, not conjectural or hypothetical,” the Court explained that “[l]itigants who are being ‘chilled from engaging in constitutional activity’ . . . suffer a discrete harm independent of enforcement, and that harm creates the basis for our jurisdiction.” The student need not be prosecuted or disciplined by the government (university) in order to challenge the regulation if the "policy 'objectively chills' protected expression."

The Court noted that "the University’s totality-of-known-circumstances approach to determining whether particular speech crosses the line only makes matters worse." In a shining example of both lawyer professionalism and appropriate judicial recognition, the court noted that during the oral argument of the case it had questioned the university's attorney about specific hypothetical statements. The Court said that "To his considerable credit," praising professionalism as courts should, "but to the policy’s considerable discredit," the lawyer was hard-pressed to predict if those speech examples would be protected or punishable under the challenged policy. Perhaps due to the subjectivity noted above. As an aside, adjudicators should always praise professionalism in attorneys.

The Court emphasized that if the school'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."

The Court described the policy as having "astonishing breadth—and slipperiness," such that a "reasonable student could fear that his speech would get him crossways with the University and that he’d be better off just keeping his mouth shut." This, the Court explained, is an “objective chill” on the exchange of ideas. Despite the JKRT's lack of punishing authority, the Court concluded that groups in such settings that are even perceived as being able to threaten proceedings are nonetheless capable of impairing free speech. In short, such a group may "exert an impermissible type or degree of pressure.”

The Court noted that the potential for chilling effect on speech might come from the mere chance that the JKRT would pursue a complaint, noting that 

"No reasonable college student wants to run the risk of being accused of 'offensive,'  'hostile,' 'negative,' or 'harmful' conduct—let alone 'hate or bias.'”

That such a JKRT referral might lead also to the University monitoring or tracking the speaker student would also potentially chill speech for fear of JKRT involvement, despite its lack of formal police powers. Who wants to be monitored or tracked?

The old saying is often engaged. "make a federal case out of it," and this is in fact a federal case. In a similar vein, the Court asked the plaintiff's lawyer (Free Speech) "why everyone shouldn’t just 'put on their big boy and big girl pants' and deal with some adversity." This question is suggestive of, essentially, questioning why the courts should be involved in disputes regarding such policies restricting free speech. The lawyer is said to have replied “The state is a really big boy.” That is, the "state can far more easily intimidate, and thereby objectively chill, college students than can those students’ peers." There is some merit in considering the great difference in stature between a person (student) and government (university). 

The Court concluded that "because the discriminatory harassment policy restricts political advocacy and covers substantially more speech than the First Amendment permits, it is fatally overbroad." Furthermore, it is a constraint based on the content of ideas and the perspectives or viewpoints of the speaker. As such, it is "presumptively unconstitutional." Therefore, the burden rests on the government (school) to prove that the policy is "narrowly tailored to serve compelling state interests.” 

Note, however, that the Court did not conclude that the school cannot prove this. The case was before the appellate court largely on procedural issues of standing. However, in addressing the request for an injunction the Court must assess the probability of the plaintiff prevailing. In that context, the Court noted those "narrowly tailored" and "compelling interest" hurdles and concluded that although the school might prove these, "we doubt it can." That is not to prejudge the issue, but in the broad context an indictment of the University procedure and policy. 

The Court added that "in prohibiting only one perspective, UCF targets 'particular views taken by' students, . . .  and thereby chooses winners and losers in the marketplace of ideas." This, it concluded is inappropriate. And, it noted the fact that the constraint is in an educational environment does not change that in this context (University), though more deference might be appropriate in elementary, middle, or high school environs. Instead of such deference perhaps necessary in primary/secondary schools, the Court concluded that "it is imperative that colleges and universities toe the constitutional line when monitoring, supervising, and regulating student expression."

A concurring opinion echoed the majority and added that "by depriving itself of academic institutions that pursue truth over any other concern, a society risks falling into the abyss of ignorance." The judge notes that overall, "humans are not smart enough to have ideas that lie beyond challenge and debate." Thus, there lies danger in assuming or adopting "the most popular idea." In effect, this wise jurist seems to be arguing in a similar vein to my periodic returns to  science over consensus. See Consensus in the Absence of Proof (January 2021), Tootsie Pops Make you Think (August 2021), and Long COVID Seminar (April 2022). If "fifty million people say a foolish thing, it is still a foolish thing," according to Anatole France. Consensus, popularity, and group think are no substitute for science and critical thinking. Likewise, discussion and debate are of great benefit no matter how little we like the thoughts and words of others. Back to Justice Brandies above, we have great tools at our disposal to combat bad speech. 

The concurring Judge in Speech First concluded with "a university that turns itself into an asylum from controversy has ceased to be a university; it has just become (merely) an asylum." And, perhaps, that is good advice for us all as we find ourselves confronted by what challenges or concerns us. Before we charge the stage with pugilism or other violence because of our differing opinions, may we perhaps instead return to the advice of Brandies and raise our voice in "counterspeech?" Before we legislate or mandate freedom from insult, embarrassment, or discomfort, might we instead strive to address and discuss ideas that are perhaps unpopular, or even offensive, hateful, or worse? I did not say we should agree with them, but might we simply discuss them?

Martin Luther King suggested, in his inimitable way, that "darkness cannot drive out darkness, only light can do that. Hate cannot drive out hate, only love can do that." Similarly, perhaps, censorship can not drive out bad speech, only good speech can do that. I am thankful to Justice Brandies for "the remedy to be applied is more speech," and not "enforced silence." There is much to learn from Speech First, Inc. v. Alexander Cartwright and Dana Juntenen, including the challenges of interpreting legislation, the need for professionalism in the bar, and the appropriateness of adjudicators expressing the admirability of such professionalism. Our community would be better if workers' compensation acknowledged and remembered the professionalism and the praise; could praising professionalism, as speech or "counterspeech," begin to drive out the unprofessional?