Speech First, Inc. v. Alexander Cartwright ( 2022 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12583
____________________
SPEECH FIRST, INC.,
Plaintiff-Appellant,
versus
ALEXANDER CARTWRIGHT,
in his individual capacity and his official capacity
as President of the University of Central Florida,
Defendant-Appellee,
DANA JUNTENEN,
in her official capacity as Director of the
University of Central Florida Office of Student
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2 Opinion of the Court 21-12583
Rights and Responsibilities and Assistant
Dean of Students, et al.,
Defendants.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:21-cv-00313-GAP-GJK
____________________
Before NEWSOM and MARCUS, Circuit Judges, and STORY,∗ District
Judge.
NEWSOM, Circuit Judge:
The Court sua sponte VACATES its prior opinion, pub-
lished at __ F.4th ___, 2022 WL 1192438 (11th Cir. Apr. 21, 2022),
and substitutes the following in its place.
* * *
In this appeal from the denial of a request for a preliminary
injunction, we are asked to decide whether two speech-related
∗ Honorable Richard W. Story, United States District Judge for the Northern
District of Georgia, sitting by designation.
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21-12583 Opinion of the Court 3
policies promulgated by the University of Central Florida—one
that prohibits multiple forms of expression that are deemed to con-
stitute “discriminatory harassment” and another that aims to ad-
dress so-called “bias-related incidents”—likely violate the First
Amendment. We must also decide, as a threshold matter, whether
the plaintiff—an organization called Speech First, Inc.—has stand-
ing to challenge the policies’ constitutionality.
We hold (1) that Speech First has standing to sue because
the challenged policies chill its members’ speech and (2) that the
discriminatory-harassment policy likely violates the First Amend-
ment on the grounds that it is an overbroad and content- and view-
point-based regulation of constitutionally protected expression.
Because the district court never considered the bias-related-inci-
dents policy’s constitutionality on the merits—having erroneously
concluded that Speech First lacked standing to challenge it—we re-
mand for a determination of that issue.
I
A
Speech First, Inc. is a voluntary member organization dedi-
cated to protecting students’ free-speech rights. It represents stu-
dents who attend universities across the country, including the
University of Central Florida. Several of Speech First’s UCF-based
members have attested that they desire to express their beliefs and
opinions about a range of topics but are inhibited from doing so by
two University policies, which we’ll call the “discriminatory-
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4 Opinion of the Court 21-12583
harassment” and “bias-related-incidents” policies, respectively, and
which we’ll describe in detail below.
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.
B
Before we go any further, we should describe the challenged
policies in some detail. Rather than characterize them—and in the
interest of providing the fullest possible context—we will lay out
their relevant provisions in full.
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21-12583 Opinion of the Court 5
1
First, the discriminatory-harassment policy. As its name in-
dicates, the policy prohibits “discriminatory harassment,” which it
defines in the following terms:
Discriminatory harassment consists of verbal, physi-
cal, electronic or other conduct based upon an indi-
vidual’s race, color, ethnicity, national origin, reli-
gion, non-religion, age, genetic information, sex (in-
cluding pregnancy and parental status, gender iden-
tity or expression, or sexual orientation), marital sta-
tus, physical or mental disability (including learning
disabilities, intellectual disabilities, and past or pre-
sent history of mental illness), political affiliations,
veteran’s status (as protected under the Vietnam Era
Veterans’ Readjustment Assistan[ce] Act), or mem-
bership in other protected classes set forth in state or
federal law that interferes with that individual’s edu-
cational or employment opportunities, participation
in a university program or activity, or receipt of legit-
imately-requested services meeting the description of
either Hostile Environment Harassment or Quid Pro
Quo Harassment, as defined [below].
Discriminatory harassment may take many forms, in-
cluding 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 physi-
cally threatening.
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6 Opinion of the Court 21-12583
The policy, in turn, defines “Hostile Environment Harass-
ment” as follows:
Discriminatory harassment that is so severe or perva-
sive that it unreasonably interferes with, limits, de-
prives, or alters the terms or conditions of education
(e.g., admission, academic standing, grades, assign-
ment); employment (e.g., hiring, advancement, as-
signment); or participation in a university program or
activity (e.g., campus housing), when viewed from
both a subjective and objective perspective.
The policy states that “[i]n evaluating whether a hostile en-
vironment exists, the university will consider the totality of known
circumstances, including, but not limited to” the following factors:
• The frequency, nature and severity of the conduct;
• Whether the conduct was physically threatening;
• The effect of the conduct on the complainant’s men-
tal or emotional state;
• Whether the conduct was directed at more than one
person;
• Whether the conduct arose in the context of other
discriminatory conduct or other misconduct;
• Whether the conduct unreasonably interfered with
the complainant’s educational or work performance
and/or university programs or activities; and
• Whether the conduct implicates concerns related to
academic freedom or protected speech.
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21-12583 Opinion of the Court 7
The policy’s definition of “Hostile Environment Harass-
ment” goes on to state (1) that “[a] hostile environment can be cre-
ated by pervasive conduct or by a single or isolated incident, if suf-
ficiently severe,” (2) that “[t]he more severe the conduct, the less
need there is to show a repetitive series of incidents to prove a hos-
tile environment, particularly if the conduct is physical,” and
(3) that “an isolated incident, unless sufficiently serious, does not
amount to Hostile Environment Harassment.”
There is one last piece of the discriminatory-harassment
puzzle. Referencing the discriminatory-harassment policy, UCF’s
Student Handbook states that “[s]tudents are prohibited” not only
from engaging in the prohibited conduct themselves, but also from
“[c]ondoning or encouraging acts of harmful behavior as defined
[in the discriminatory-harassment policy] or failing to intervene
during an act of harmful behavior while it is occurring.”
* * *
So, in sum: The discriminatory-harassment policy prohibits
“verbal, physical, electronic, or other conduct” based on a long list
of characteristics including, among others, “religion [or] non-reli-
gion,” “genetic information,” and “political affiliation[].” The pol-
icy applies to any conduct that, for instance, “unreasonably . . . al-
ters” another student’s “participation in a university program or
activity.” It specifies that discriminatory harassment “may take
many forms”—including, broadly, “verbal acts, name-calling,
graphic or written statements . . . or other conduct that may be hu-
miliating”—and it utilizes a “totality of known circumstances” ap-
proach, based on a non-exhaustive list of factors, to determine
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8 Opinion of the Court 21-12583
whether a speaker’s expression satisfies the “unreasonabl[e] . . . al-
ter[ation]” standard. Lastly, the policy prohibits students not only
from committing the specified acts, but also from “[c]ondoning,”
“encouraging,” or even “failing to intervene” to stop them.
2
Separate from the discriminatory-harassment policy—but
seemingly aimed at addressing similar issues—UCF maintains a
policy which seeks to prevent and redress what it calls “bias-related
incidents.” The “Bias-Related Incidents” policy has several parts.
First, it defines the key term—“bias-related incident”—as follows:
A bias-related incident is any behavior or action di-
rected towards an individual or group based upon ac-
tual or perceived identity characteristics or back-
ground. This bias motivates an individual to act in an
offensive manner towards an individual or group in-
cluding but not limited to: race, sex (including gender
identity/expression), color, religion, ancestry, na-
tional origin, age, disability, veteran status, military
status, or sexual orientation. Such acts may result in
creating a hostile environment and may have a nega-
tive psychological, emotional, or physical impact on
an individual, group, and/or community.
Second, the policy provides that “[b]ias-related incidents oc-
cur without regard to whether the act is legal, illegal, intentional,
or unintentional,” and that such an incident need “not necessarily
rise to the level of a crime, a violation of state law, university
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21-12583 Opinion of the Court 9
policy, or the student code of conduct.” Rather, a “bias act” is one
that “may contribute to creating an unsafe, negative, unwelcoming
environment [for] the victim, or anyone who shares the same so-
cial identity as the victim, and/or community members at the uni-
versity.”
Third, the bias-related-incidents policy states that “[i]nci-
dents which occur on campus that are not covered by formal poli-
cies and procedures but have the effect of harming individuals or
groups may be addressed by the Just Knights Response Team
(JKRT) protocol”—of which more below. That “protocol may be
initiated in cases when it is clear that the incidents have harmful
effects on persons or groups based upon their race, sex (including
gender identity/expression), color, religion, ancestry, national
origin, age, disability, veteran status, military status, or sexual ori-
entation.”
Finally, the policy provides a non-exhaustive list of “types of
bias-related incidents.” They “may include (but are not limited to)”
any of 13 behaviors, ranging from “physical injury” and “stalking,”
on one end of the spectrum, to “graffiti [and] signs,” “confronta-
tion,” and “gestures,” on the other end.
As just noted, the bias-related-incidents policy is imple-
mented by the JKRT, which is made up of UCF students, faculty,
and staff. University staff members who serve on the JKRT include
representatives from the offices of Student Development and En-
rollment Services, Housing and Residence Life, Social Justice and
Advocacy, Faculty Relations, and the UCF Police Department.
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10 Opinion of the Court 21-12583
UCF’s website describes the JKRT as follows:
The JKRT . . . is here to provide assistance in the un-
fortunate event that you have experienced or wit-
nessed a hate or bias related incident. This site is de-
signed to allow the reporting of bias incidents to the
JKRT team to ensure the most appropriate university
response.
UCF is also committed to tracking patterns of bias
and other incidents at the University that might pre-
vent the community from thriving. It is our goal, as
a team, to effect positive change in our campus com-
munity by providing a platform for individuals to re-
port hurtful actions that have occurred. In return, we
will create an open and transparent university com-
munity response to the handling of these incidents.
JKRT is intended to be a resource for anyone who
wants to examine issues of bias, discrimination, or
hate. Whatever your reasons are for visiting this site,
please be assured that UCF holds as one of its goals to
create a more inclusive and diverse campus. We are
also committed to providing a safe and welcoming
living and learning community for all our students.
The website goes on to explain the JKRT’s “Purpose State-
ment” in the following terms:
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
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21-12583 Opinion of the Court 11
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.
And it describes the JKRT’s “Policy” as follows:
The Just Knights Response Team (JKRT) is an inter-
divisional team that assesses bias inciden[ts] in order
to coordinate university resources for the creation of
effective interventions and future incident prevention
programming. The JKRT creates timely interven-
tions to incidents that are sensitive to the rights of all
parties involved. It is intended that any JKRT pro-
gramming or intervention will be educational at its
core. It will involve a variety of activities including
discussion, mediation, training, counseling and con-
sensus building. Through the voluntary participation
of the persons involved in and impacted by bias inci-
den[ts], the JKRT’s interventions and prevention pro-
gramming will foster a sense of civility and campus
community encompassing respect and understanding
that supports a multicultural and diverse campus en-
vironment.
A student who feels that he has been the victim of a bias-
related incident can report it anonymously through a complaint
form on the JKRT’s website. The complainant is directed to
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12 Opinion of the Court 21-12583
describe the incident (date, location, etc.), to “list the individuals
involved,” and to specify his or her “desired outcome.” The JKRT’s
website warns that the information provided by a complainant
“may be shared with the Office of Student Conduct,” the “Office of
Student Rights and Responsibility,” or the “UCF Police Depart-
ment.”1
1 When a UCF student is reported to have engaged in a bias-related incident,
the JKRT sends that student the following email:
Greetings,
My name is {INSERT NAME}. The University of Cen-
tral Florida is committed to tracking patterns of bias and other
incidents at the university that might prevent the community
from thriving. I am a university employee who serves on the
Just Knights Response Team (JKRT).
The Just Knights Response Team (JKRT) is an inter-
divisional team that assesses bias incidences in order to coordi-
nate university resources for the creation of effective interven-
tions and future incident prevention programming. The JKRT
creates timely interventions for incidents that are sensitive to
the rights of all parties involved. It is intended that any JKRT
programming or intervention will be educational at its core.
Interventions involve a variety of activities including discus-
sion, mediation, training, counseling, and consensus-building.
Through the voluntary participation of the persons involved
in and impacted by bias incidences, the JKRT’s interventions
and prevention programming will foster a sense of civility and
campus community encompassing respect and understanding
that supports a multicultural and diverse campus environ-
ment.
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21-12583 Opinion of the Court 13
* * *
So again, to sum up: The bias-related-incidents policy cre-
ates a mechanism by which a UCF student can be anonymously
accused of an act of “hate or bias”—i.e., an “offensive” act, even if
“legal” and “unintentional,” that is directed toward another based
on any of a number of characteristics that echo (but do not
Please note, JKRT is not an extension of UCF Human
Resources nor the Office of Student Rights and Responsibili-
ties. We have no authority to dispense punitive measures. We
value anonymity and privacy, however, at times there is cer-
tain information that we must disclose to other university of-
ficers (ex. Title IX violations, criminal activity and/or immi-
nent threats).
We have received a report of an incident you may have
been involved in or reported. I would like the opportunity to
speak with you regarding this matter. Your participation is
voluntary.
If you are interested in speaking with me, please reply
back with a preferred contact number. I will call you to sched-
ule a time for us to meet or speak via the phone. If I do not
receive a reply within two weeks, I will assume you do not
have an interest in speaking with me and will close out this
JKRT case.
I look forward to hearing from you.
{INSERT NAME}
University of Central Florida
jkrt@ucf.edu
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14 Opinion of the Court 21-12583
precisely mirror) those listed in the discriminatory-harassment pol-
icy. The JKRT “monitor[s]” and “track[s]” bias-related incidents,
“coordinate[s] university resources,” marshals a “comprehensive
response[],” and, where necessary, coordinates “interventions”
among affected parties.
C
Speech First brought suit in the Middle District of Florida,
contending (as relevant here) that the discriminatory-harassment
and bias-related-incidents policies violate the First Amendment. In
particular, Speech First alleged that both policies are unconstitu-
tionally overbroad and that the discriminatory-harassment policy
also impermissibly restricts speech based on content and view-
point.
Shortly after filing suit, Speech First sought a preliminary in-
junction, which the district court refused. As an initial matter, the
court held that Speech First lacked Article III standing to challenge
the bias-related-incidents policy. The court reasoned that because
the JKRT, which implements the policy, “has no authority to disci-
pline students and cannot compel students to engage with it,” its
conduct cannot (absent evidence to the contrary) “objectively
chill” student expression. Accordingly, the court concluded that
Speech First had “failed to show that the JKRT creates a reasonable
fear of prosecution” and, therefore, had failed to “establish its
[m]embers’ standing to challenge the JKRT at the preliminary in-
junction stage.” The district court held that Speech First had stand-
ing to challenge the discriminatory-harassment policy because
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21-12583 Opinion of the Court 15
“UCF can discipline students for violating” it, but it rejected Speech
First’s arguments on the merits. In particular, the court held that
the policy could “only be read to reach unprotected conduct” and,
accordingly, that Speech First’s members “cannot reasonably be-
lieve that they would be punished for simply expressing unpopular
viewpoints.”2
II
We begin, as we must, by determining whether Speech First
has the requisite standing to challenge UCF’s policies. An associa-
tion like Speech First “has standing to bring suit on behalf of its
members when its members would otherwise have standing to sue
in their own right, the interests at stake are germane to the organ-
ization’s purpose, and neither the claim asserted nor the relief re-
quested requires the participation of individual members in the
lawsuit.” Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC),
Inc., 528 U.S. 167, 181 (2000). Here, all seem to agree that the
2 “We review standing determinations de novo.” BBX Cap. v. Fed. Deposit
Ins. Corp., 956 F.3d 1304, 1312 (11th Cir. 2020) (per curiam). We review “the
district court’s decision to deny a preliminary injunction for abuse of discre-
tion, though we review and correct errors of law without deference to the
district court.” Brown v. Sec’y, U.S. Dep’t of Health & Hum. Servs., 4 F.4th
1220, 1224 (11th Cir. 2021) (quotation marks omitted). “A district court abuses
its discretion when its factual findings are clearly erroneous, when it follows
improper procedures, when it applies the incorrect legal standard, or when it
applies the law in an unreasonable or incorrect manner.” Wreal, LLC v. Am-
azon.com, Inc., 840 F.3d 1244, 1247 (11th Cir. 2016).
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16 Opinion of the Court 21-12583
standing question turns on whether Speech First’s members would
have standing to sue on their own.
A
The tripartite test for Article III standing, as articulated by
the Supreme Court, is well known:
First, the plaintiff must have suffered an injury in
fact—an invasion of a legally protected interest which
is (a) concrete and particularized, and (b) actual or im-
minent, not conjectural or hypothetical. Second,
there must be a causal connection between the injury
and the conduct complained of—the injury has to be
fairly traceable to the challenged action of the defend-
ant, and not the result of the independent action of
some third party not before the court. Third, it must
be likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision.
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992) (cleaned up);
see also Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016); TransUn-
ion LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021). “[E]ach element
must be supported in the same way as any other matter on which
the plaintiff bears the burden of proof, i.e., with the manner and
degree of evidence required at the successive stages of the litiga-
tion.” Lujan, 504 U.S. at 561. Because this case hasn’t progressed
past the pleading stage, “general factual allegations of injury” may
suffice so long as they “plausibly and clearly allege a concrete
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21-12583 Opinion of the Court 17
injury.” Muransky v. Godiva Chocolatier, Inc., 979 F.3d 917, 924
(11th Cir. 2020) (en banc) (quotation omitted).
There is no doubt—or dispute—that the members’ claimed
injury is “concrete and particularized” within the meaning of what
we’ll call Lujan’s prong (1a) because they have alleged a depriva-
tion of their First Amendment right to free speech. See Pedro v.
Equifax, Inc., 868 F.3d 1275, 1279 (11th Cir. 2017) (“[V]iolation of
the right to free speech . . . can be concrete.”); Otto v. City of Boca
Raton, 981 F.3d 854, 870 (11th Cir. 2020) (same); see also Spokeo,
578 U.S. at 340 (citing Pleasant Grove City v. Summum, 555 U.S.
460 (2009) for the proposition that free-speech violations are con-
crete injuries); TransUnion, 141 S. Ct. at 2204 (same). Nor is there
any real dispute that the members’ injury is “traceable” to UCF’s
policies within the meaning of Lujan’s prong (2) or that it is “re-
dress[able]” within the meaning of prong (3).
The standing question here thus turns on whether the mem-
bers’ injury is “imminent, not conjectural or hypothetical,” within
the meaning of Lujan’s prong (1b). In answering that question, we
must first acknowledge a bit of dissonance in the doctrine. In Susan
B. Anthony List v. Driehaus, the Supreme Court enumerated three
criteria that, as a general matter, govern a plaintiff’s standing to
bring the sort of pre-enforcement challenge that Speech First has
brought here: The plaintiff must show (1) that he has “an intention
to engage in a course of conduct arguably affected with a constitu-
tional interest,” (2) that his conduct is “arguably proscribed,” and
(3) that he is subject to “a credible threat of enforcement.” 573 U.S.
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18 Opinion of the Court 21-12583
149, 159, 162 (2014) (cleaned up). The district court here held that
Speech First’s standing turned on the third, credible-threat-of-en-
forcement requirement: Because “UCF can discipline students for
violating” the discriminatory-harassment policy, it reasoned that
Speech First had standing to challenge it; but because “the JKRT
does not have the independent authority to discipline students,” it
concluded that Speech First lacked standing to challenge the bias-
related-incidents policy.
Before addressing the district court’s conclusions, we pause
to clarify our own pre-enforcement-challenge doctrine, at least as
it applies in First Amendment cases. We have long emphasized
that “[t]he injury requirement is most loosely applied—particularly
in terms of how directly the injury must result from the challenged
governmental action—where [F]irst [A]mendment rights are in-
volved, because of the fear that free speech will be chilled even be-
fore the law, regulation, or policy is enforced.” Hallandale Pro.
Fire Fighters Loc. 2238 v. City of Hallandale, 922 F.2d 756, 760
(11th Cir. 1991). More recently—and specifically—we held 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.” Dana’s R.R.
Supply v. Att’y Gen., Fla., 807 F.3d 1235, 1241 (11th Cir. 2015).
Therefore—and most recently—we stressed that “[w]here the al-
leged danger of legislation is one of self-censorship, harm can be
realized even without an actual prosecution.” Wollschlaeger v.
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21-12583 Opinion of the Court 19
Governor, Fla., 848 F.3d 1293, 1305 (11th Cir. 2017) (en banc) (quo-
tation marks omitted).
Accordingly, to determine whether a First Amendment
plaintiff has standing, we simply ask whether the “operation or en-
forcement,” Georgia Latino All. for Hum. Rts. v. Governor of Ga.,
691 F.3d 1250, 1257 (11th Cir. 2012) (cleaned up), of the govern-
ment policy would cause a reasonable would-be speaker to “self-
censor[],” Wollschlaeger, 848 F.3d at 1305—even where the policy
“fall[s] short of a direct prohibition against the exercise of First
Amendment rights,” Laird v. Tatum, 408 U.S. 1, 11 (1972). In mak-
ing that assessment, the threat of formal discipline or punishment
is relevant to the inquiry, but it is not decisive. The fundamental
question under our precedent—as well as under the precedent of
other courts that have decided similar “speech code” cases—is
whether the challenged policy “objectively chills” protected ex-
pression. See, e.g., Speech First, Inc. v. Fenves, 979 F.3d 319, 330–
35 (5th Cir. 2020) (holding, in campus-speech case, that fear of the
investigative process is sufficient to create an “objective chill” that
gives rise to standing); Speech First, Inc. v. Schlissel, 939 F.3d 756,
764 (6th Cir. 2019) (same); Speech First, Inc. v. Killeen, 968 F.3d
628, 639 n.1 (7th Cir. 2020) (acknowledging, in campus-speech case,
that there is “some degree of overlap” between the “credible
threat” and “objective chill” inquiries).
B
As already noted, Speech First challenges two UCF policies.
For reasons we will explain, because the application of those
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20 Opinion of the Court 21-12583
policies objectively chills its members’ speech, Speech First has
standing to challenge both.
1
We begin with whether Speech First has standing to chal-
lenge the discriminatory-harassment policy. The district court held
that it did. We agree.
The discriminatory-harassment policy objectively chills
speech because its operation would cause a reasonable student to
fear expressing potentially unpopular beliefs. As already explained,
UCF’s discriminatory-harassment policy prohibits a broad swath of
expressive activity—both “verbal” and “electronic”—touching on
any of a number of characteristics, including “race,” “national
origin,” “religion [or] non-religion,” “genetic information,” “sex,”
and “political affiliation[].” The policy says that the prohibited
speech “may take many forms, including verbal acts, name-calling,
graphic or written statements,” or, even more broadly, “other con-
duct that may be humiliating.” And it uses a “totality of known
circumstances” approach, based on a long but non-exhaustive list
of factors, to determine whether speech “unreasonably . . . alters,”
among other things, a student’s “participation in a university pro-
gram.” Expanding its reach even further, the policy prohibits stu-
dents not only from engaging in prohibited speech themselves, but
also from “encouraging” or “condoning” other students’ speech, or
even “failing to intervene” to stop it. And further still, the student
code of conduct states that the rules contained therein—including
the discriminatory-harassment policy—“should be read broadly
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21-12583 Opinion of the Court 21
and are not designed to define prohibited conduct in exhaustive
terms.”
The discriminatory-harassment policy’s imprecision exacer-
bates 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—“unreasona-
bly” and “alter[]”—are pretty amorphous, their application would
likely vary from one student to another, and the University’s total-
ity-of-known-circumstances approach to determining whether par-
ticular 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 Palestin-
ian movement is antisemitic.” 3 To his considerable credit—but to
3 In full:
1. “Suppose I were to distribute pamphlets at a time that the university
allows me to, or suppose I were to be permitted to speak at a time and
a place the University allows me to speak, and I were to say that in my
view, abortion is immoral, it’s a sin against God, and it will yield eter-
nal damnation. Suppose I were to hold that view. It’s a religious view.
It’s a view that I’m expressing through speech at a time and a place
that the University allows me to speak. Would that run me afoul of
the harassment policy?” Oral Arg. at 29:10–29:57.
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22 Opinion of the Court 21-12583
the policy’s considerable discredit—he candidly acknowledged that
while “it d[id] not sound to [him]” like the speech would be pro-
scribed under the policy, he couldn’t say for sure because “the Uni-
versity will consider all the facts and circumstances there” and be-
cause he couldn’t “prejudge everything.” Oral Arg. at 28:43–33:55.
If UCF’s own attorney—as one intimately familiar with the Univer-
sity’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.
Although it arose in a different context, our decision in Har-
rell v. Florida Bar, 608 F.3d 1241 (11th Cir. 2010), supports Speech
First’s position. In that case, we held that a lawyer’s speech was
chilled—and that he therefore had standing to sue—where certain
Florida bar rules failed to provide a “person of ordinary intelligence
2. “Suppose I were to use my opportunity to speak as a student on cam-
pus and I were to say that the immigration laws of the United States
are deeply flawed, that unbridled open immigration is a danger to
America on a variety of levels. We ought to throw up a wall, etc., etc.,
etc. Would that speech be proscribed under the harassment policy?
Might not a student on campus who fell into the category of being a
‘dreamer’ take deep offense to that and say that that constituted har-
assment [within the meaning of the] policy? It was severe. It went to
his very right to be where he was, to learn on that campus.” Id. at
31:36–32:33.
3. “Suppose [a student] were to say, at a time that the University allows
her or him to speak, that the Palestinian movement is antisemitic, it’s
riddled with antisemitism from beginning to end. Would that speech
amount to harassment?” Id. at 41:39–42:00.
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21-12583 Opinion of the Court 23
a reasonable opportunity to know what is prohibited and fail[ed] to
provide explicit standards for those who apply them.” Id. at 1254(quotation omitted). Like the lawyer in Harrell, the students here
are indisputably subject to the discriminatory-harassment policy.
And like the regulations in Harrell, UCF’s policy fails to provide
students with specific enough information to determine whether
any particular statement is permitted or prohibited.
Given the discriminatory-harassment policy’s astonishing
breadth—and slipperiness—we think it clear that a reasonable stu-
dent could fear that his speech would get him crossways with the
University, and that he’d be better off just keeping his mouth shut.
That sort of “objective chill” suffices to give the affected students—
and thus Speech First—standing.
2
The district court held that Speech First lacked standing to
challenge the bias-related-incidents policy because, the court said,
the JKRT couldn’t punish students itself but, rather, could only re-
fer them to other university actors for discipline. We hold that the
district court erred in focusing so singularly on the JKRT’s power
to punish. The reason, already explained, is that a government ac-
tor can objectively chill speech—through its implementation of a
policy—even without formally sanctioning it. Punishment is no
doubt relevant to the objective-chill analysis, and may well be suf-
ficient to prove the requisite chill, but analogous precedent makes
clear that it is not decisive and, in any event, is not uniformly nec-
essary.
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24 Opinion of the Court 21-12583
The seminal case is Bantam Books, Inc. v. Sullivan, 372 U.S.
58 (1963). There, the Supreme Court considered the constitution-
ality of certain actions of the “Rhode Island Commission to En-
courage Morality in Youth,” whose charge it was to “educate the
public concerning any book, picture, pamphlet, ballad, printed pa-
per or other thing containing obscene, indecent or impure lan-
guage, or manifestly tending to the corruption of the youth.” Id.
at 59. The commission’s usual practice was to notify a bookseller
“on official . . . stationery that certain designated books or maga-
zines distributed by him had been reviewed by the Commission
and had been declared by a majority of its members to be objec-
tionable for sale,” to “thank[ him] in advance[] for his ‘coopera-
tion,’” to “remind[ him] of the Commission’s duty to recommend
to the Attorney General prosecution of purveyors of obscenity,”
and to inform him that “[c]opies of the lists of ‘objectionable’ pub-
lications were circulated to local police departments.” Id. at 61–63.
The state defended against the bookseller’s contention that
the challenged practices chilled his First Amendment rights on the
ground that the commission had no formal disciplinary authority:
“[I]t does not regulate or suppress obscenity but simply exhorts
booksellers and advises them of their legal rights.” Id. at 66. The
Court rejected as “untenable” the state’s argument, which was
“premised on the Commission’s want of power to apply formal le-
gal sanctions.” Id. The Court likewise rejected the state’s conten-
tion that the bookseller’s “compliance with the Commission’s di-
rectives” was in any meaningful sense “voluntary,” despite the fact
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21-12583 Opinion of the Court 25
that a bookseller was technically “‘free’ to ignore” that body’s no-
tices: “People do not,” the Court emphasized, “lightly disregard
public officers’ thinly veiled threats to institute criminal proceed-
ings against them if they do not come around.” Id. at 68. Rather,
the Court held that even “informal sanctions”—including “coer-
cion, persuasion, and intimidation”—can sufficiently inhibit ex-
pression as to violate the First Amendment, and to give a plaintiff
standing to sue. Id. at 64 n.6, 67. It is necessary, the Court held, to
“look through forms to the substance and recognize that informal
censorship may sufficiently inhibit”—i.e., chill—“the circulation of
publications to warrant injunctive relief.” Id. at 67.
The Second Circuit’s decision in Okwedy v. Molinari, 333
F.3d 339 (2d Cir. 2003) (per curiam), is similar. The plaintiffs in that
case hired a billboard company to display signs in Staten Island de-
nouncing homosexuality. Id. at 340. The Staten Island Borough
president sent a letter to the billboard company stating that the
signs were “unnecessarily confrontational and offensive” and “con-
vey[ed] an atmosphere of intolerance . . . [un]welcome in our Bor-
ough,” and he asked a representative of the company to contact the
“Chair of [his] Anti-Bias Task Force . . . to discuss further the issues
[he had] raised in th[e] letter.” Id. at 341–42. Capitulating, the bill-
board company removed the signs. Id. at 342.
When the plaintiffs sued, the district court dismissed their
action, “rel[ying] heavily on . . . the fact” that the borough presi-
dent “did not have direct regulatory or decisionmaking authority”
over the billboard company. Id. at 343. The Second Circuit
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26 Opinion of the Court 21-12583
reversed, holding that “[a]lthough the existence of regulatory or
other direct decisionmaking authority is certainly relevant to the
question of whether a government official’s comments were un-
constitutionally threatening or coercive, a defendant without such
direct regulatory or decisionmaking authority can also exert an im-
permissible type or degree of pressure.” Id. The billboard com-
pany, the court of appeals emphasized, “could reasonably have be-
lieved,” based on the information available to it, that the borough
president “intended to use his official power to retaliate against it if
it did not respond positively to his entreaties.” Id. at 344.
Bantam Books and Okwedy demonstrate a commonsense
proposition: Neither formal punishment nor the formal power to
impose it is strictly necessary to exert an impermissible chill on
First Amendment rights—indirect pressure may suffice. To be
sure, the University wasn’t quite as heavy-handed here as were the
government actors in Bantam Books and Okwedy. But just as
surely, the students targeted here are—for the most part—teenag-
ers and young adults who, it stands to reason, are more likely to be
cowed by subtle coercion than the relatively sophisticated business
owners in those cases. Cf. Fare v. Michael C., 442 U.S. 707, 725
(1979) (considering a defendant’s age in determining whether a Mi-
randa waiver is voluntary); Schneckloth v. Bustamonte, 412 U.S.
218, 226 (1973) (considering a defendant’s “youth” as a factor in de-
termining whether his consent to a search was voluntary); United
States v. Owen, 963 F.3d 1040, 1049 (11th Cir. 2020) (considering a
defendant’s age in determining whether the “waiver of his right to
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21-12583 Opinion of the Court 27
counsel was knowing and voluntary”). 4 And the question for us is
whether the average college-aged student would be intimidated—
and thereby chilled from exercising her free-speech rights—by sub-
jection to the bias-related-incidents policy and the JKRT’s role in
enforcing it.
The answer to that question, we think, is yes. No reasonable
college student wants to run the risk of being accused of “offen-
sive,” “hostile,” “negative,” or “harmful” conduct—let alone “hate
or bias.” Nor would the average college student want to run the
risk that the University will “track[]” her, “monitor[]” her, or
mount a “comprehensive response[]” against her. And as with the
discriminatory-harassment policy, the breadth and vagueness of
the bias-related-incidents policy exacerbates the chill that the aver-
age student would feel. The policy, for instance, reaches “any be-
havior or action”—even if both “legal” and “unintentional”—that
is “directed towards an individual or group” based on “actual or
perceived identity characteristics”—including but not limited to
4 There is, we observe, a certain irony in the facts (1) that UCF created the
JKRT to address situations in which students felt intimidated or marginalized
and (2) that now, Speech First’s members claim to have been intimidated and
marginalized by the JKRT—“kind of like . . . snowflakes all around.” Oral Arg.
at 10:10–10:51. We asked Speech First’s lawyer at oral argument why every-
one shouldn’t just “put on their big boy and big girl pants” and deal with some
adversity. Id. His answer, we think, captures a valid distinction: “The state is
a really big boy.” Id. at 10:52–11:20. The University—i.e., the state—can far
more easily intimidate, and thereby objectively chill, college students than can
those students’ peers. And objective chill is the standard.
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28 Opinion of the Court 21-12583
those rooted in any of at least 11 different traits. So too, the policy
defines a “bias act” as anything that “may contribute to creating an
unsafe, negative, unwelcoming environment [for] the victim, or
anyone who shares the same social identity as the victim, and/or
community members of the university.” And the policy applies to
a non-exhaustive laundry list of behaviors—including, among oth-
ers, “graffiti [and] signs,” “confrontation,” and “gestures.” Pair that
broad, vague, and accusatory language with the task-force-ish
name of the investigating organization—the Just Knights Response
Team—and we think it clear that the average college student
would be intimidated, and quite possibly silenced, by the policy.
Because the bias-related-incidents policy objectively chills student
speech, Speech First’s members have standing to challenge it. 5
III
On, then, to the merits. We consider four factors when de-
termining the propriety of preliminary injunctive relief: (1) sub-
stantial likelihood of success on the merits, (2) irreparable harm,
(3) the balance of equities, and (4) the public interest. Gonzalez v.
Governor of Ga., 978 F.3d 1266, 1271 (11th Cir. 2020). Likelihood
5To be clear, the fact that the JKRT’s website once refers to the accused stu-
dent’s participation as “voluntary” doesn’t change the overall tenor of the mes-
sage conveyed there—namely, that if your speech crosses our line, we will
come after you. The freedom that a student has to ignore the JKRT process is
akin, we think, to the freedom that a child has to refuse his parent when she
asks, “Would you please clean up your room?” Cf. Bantam Books, 372 U.S. at
68.
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21-12583 Opinion of the Court 29
of success on the merits “is generally the most important of the
four factors.” Id. at 1271 n.12 (quotation omitted).
A
We begin with the discriminatory-harassment policy. We
conclude that Speech First is substantially likely to establish that
the policy is both (1) impermissibly overbroad and (2) a content-
and viewpoint-based restriction of speech.
1
The discriminatory-harassment policy is almost certainly
unconstitutionally overbroad. The overbreadth doctrine is de-
signed “to prevent the chilling of protected expression.” Massachu-
setts v. Oakes, 491 U.S. 576, 584 (1989). A regulation that covers
substantially more speech than the First Amendment allows is
overbroad and thus invalid. See FF Cosms. FL, Inc. v. City of Mi-
ami Beach, 866 F.3d 1290, 1303 (11th Cir. 2017). We’ve already
plowed much of this ground in assessing Speech First’s standing to
sue, but briefly, the policy (1) prohibits a wide range of “verbal,
physical, electronic, and other” expression concerning any of (de-
pending on how you count) some 25 or so characteristics; (2) states
that prohibited speech “may take many forms, including verbal
acts, name-calling, graphic or written statements” and even “other
conduct that may be humiliating”; (3) employs a gestaltish “totality
of known circumstances” approach to determine whether particu-
lar speech, for instance, “unreasonably . . . alters” another student’s
educational experience; and (4) reaches not only a student’s own
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30 Opinion of the Court 21-12583
speech, but also her conduct “encouraging,” “condoning,” or “fail-
ing to intervene” to stop another student’s speech.
The policy, in short, is staggeringly broad, and any number
of statements—some of which are undoubtedly protected by the
First Amendment—could qualify for prohibition under its sweep-
ing standards. To take a few obvious examples, the policy targets
“verbal, physical, electronic or other conduct” based on “race,”
“ethnicity,” “religion [or] non-religion,” “sex,” and “political affilia-
tion.” Among the views that Speech First’s members have said
they want to advocate are that “abortion is immoral,” that the gov-
ernment “should not be able to force religious organizations to rec-
ognize marriages with which they disagree,” that “affirmative ac-
tion is deeply unfair,” that “a man cannot become a woman be-
cause he ‘feels’ like one,” that “illegal immigration is dangerous,”
and that “the Palestinian movement is anti-Semitic.” Whatever the
merits or demerits of those sorts of statements, they seem to us to
constitute “core political speech,” with respect to which “First
Amendment protection is ‘at its zenith.’” Buckley v. Am. Const. L.
Found., Inc., 525 U.S. 182, 183 (1999) (citation omitted); accord,
e.g., McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 347 (1995).
Because the discriminatory-harassment policy restricts political ad-
vocacy and covers substantially more speech than the First Amend-
ment permits, it is fatally overbroad.
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21-12583 Opinion of the Court 31
2
The University’s policy isn’t just overbroad, it’s also an im-
permissible content- and viewpoint-based speech restriction—or,
at the very least, likely so.
“Content-based laws—those that target speech based on its
communicative content—are presumptively unconstitutional and
may be justified only if the government proves that they are nar-
rowly tailored to serve compelling state interests.” Reed v. Town
of Gilbert, 576 U.S. 155, 163 (2014); R.A.V. v. City of St. Paul, 505
U.S. 377, 382 (1992) (“Content-based regulations are presumptively
invalid.”). A governmental regulation of speech is content-based if
it applies by its terms to speech “because of the topic discussed” or
if, even though facially neutral, it “cannot be justified without ref-
erence to the content” of the speech. Reed, 576 U.S. at 163–64
(quotation marks omitted). In other words, a regulation is content-
based if it “suppress[es], disadvantage[s], or impose[s] differential
burdens upon speech because of its content,” Turner Broadcasting
System, Inc. v. F.C.C., 512 U.S. 622, 642 (1994)—i.e., if it draws “fa-
cial distinctions . . . defining regulated speech by particular subject
matter.” Reed, 576 U.S. at 163–64.
Viewpoint discrimination is even more anathematic to the
First Amendment: “When the government targets not subject
matter, but particular views taken by speakers on a subject, the vi-
olation of the First Amendment is all the more blatant. Viewpoint
discrimination is thus an egregious form of content discrimina-
tion.” Rosenberger v. Rectors and Visitors of the Univ. of Virginia,
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32 Opinion of the Court 21-12583
515 U.S. 819, 829 (1995) (citation omitted). The Supreme Court
has reiterated time and again—and increasingly of late—the “bed-
rock First Amendment principle” that “[s]peech may not be banned
on the ground that it expresses ideas that offend.” Matal v. Tam,
137 S. Ct. 1744, 1751 (2017). “[R]estrictions based on content must
satisfy strict scrutiny, and those based on viewpoint are prohib-
ited,” seemingly as a per se matter. Minn. Voters All. v. Mansky,
138 S. Ct. 1876, 1885 (2018); see also, e.g., Iancu v. Brunetti, 139 S.
Ct. 2294, 2299 (2019) (“The government may not discriminate
against speech based on the ideas or opinions it conveys.”).
UCF’s discriminatory-harassment policy seems to us both a
content- and a viewpoint-based speech restriction. It is content-
based because the University “impose[s] differential burdens upon
speech” on account of the topics discussed, Turner, 512 U.S. at 642,
and draws “facial distinctions . . . defining regulated speech by
particular subject matter,” Reed, 576 U.S. at 163, when it prohibits
speech about any of a long list of characteristics—e.g., race, sex,
political affiliation, etc. Because the policy is a content-based re-
striction, it must satisfy strict scrutiny, and we doubt it can. Alt-
hough the University may have a compelling interest in preventing
students from disrupting its educational environment, its policy
doesn’t seem to us to be narrowly tailored to that end. As already
explained, the policy covers speech that pertains to any of a num-
ber of characteristics, can take any of a variety of forms (including
“verbal acts” and “written statements,” and “other conduct that
may be humiliating”), and that is deemed, by reference to a non-
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21-12583 Opinion of the Court 33
exhaustive seven-factor test, to “unreasonably . . . alter” another
student’s educational experience—and, indeed, to the acts of “con-
doning or encouraging,” or even “failing to intervene” to stop an-
other from speaking. That, with respect, is the opposite of narrow
tailoring.
In any event, the discriminatory-harassment policy likely
goes beyond content-discrimination to discriminate on the basis of
viewpoint. Even within the category of harassing speech, UCF pro-
hibits only speech that is “discriminatory.” To borrow the Su-
preme Court’s recent observation about similarly loaded terms in
one of the Lanham Act’s trademark registration provisions, which
it found impermissibly viewpoint-based, “[t]he meaning[] of” the
word “discriminatory” is “not mysterious”—it connotes speech
that denigrates rather than validates certain characteristics. Iancu,
139 S. Ct. at 2299. Here, as there, “resort to [the] dictionaries,” id.,confirms that commonsense conclusion, see, e.g., Discriminatory,
Oxford English Dictionary (online ed.) (“That treats a person or
group in an unjust or prejudicial manner.”). In prohibiting only
one perspective, UCF targets “particular views taken by” students,
Rosenberger, 515 U.S. at 829, and thereby chooses winners and los-
ers in the marketplace of ideas—which it may not do, see, e.g.,
Mansky, 138 S. Ct. at 1885; Tam, 137 S. Ct. at 1767 (Kennedy, J.,
concurring in part and concurring in the judgment) (“The danger
of viewpoint discrimination is that the government is attempting
to remove certain ideas or perspectives from a broader debate.
That danger is all the greater if the ideas or perspectives are ones a
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34 Opinion of the Court 21-12583
particular audience might think offensive, at least at first hear-
ing.”). 6
6 There is one loose end. The University seeks the benefit of the more defer-
ential First Amendment standard articulated in Tinker v. Des Moines Inde-
pendent Community School District, 393 U.S. 503 (1969), and its progeny. In
particular, the University asserts that its discriminatory-harassment policy
complies with Tinker because it prevents campus disruption. The district
court likewise relied heavily on Tinker’s indulgent framework.
There are three problems. First, it’s not at all clear that Tinker’s more
lenient standard applies in the university—as opposed to the elementary- and
secondary-school—setting. The caselaw sends mixed signals. On the one
hand, this Court applied Tinker to speech regulations in a college setting
where a student claimed that the college’s anti-stalking policy was “unconsti-
tutionally overbroad and vague.” Doe v. Valencia Coll., 903 F.3d 1220, 1229
(11th Cir. 2018). And the Supreme Court once cited Tinker for the proposition
that state universities have an “undoubted prerogative to enforce reasonable
rules governing student conduct”—even while reaffirming that “state colleges
and universities are not enclaves immune from the sweep of the First Amend-
ment.” Papish v. Bd. of Curators of Univ. of Mo., 410 U.S. 667, 669–70 (1973).
On the other hand, the Supreme Court has emphasized that its “precedents
. . . leave no room for the view that, because of the acknowledged need for
order [in state educational institutions,] First Amendment protections should
apply with less force on college campuses than in the community at large,”
Healy v. James, 408 U.S. 169, 180 (1972), and further, that academic freedom
in a university setting is “a special concern of the First Amendment, which
does not tolerate laws that cast a pall of orthodoxy over the classroom,” and
that universities are “peculiarly the marketplace of ideas.” Keyishian, 385 U.S.
at 603 (cleaned up). In the same way, we have emphasized “that the dangers
of viewpoint discrimination are heightened in the university setting.” Gay
Lesbian Bisexual All. v. Pryor, 110 F.3d 1543, 1550 (11th Cir. 1997) (citing Ros-
enberger, 515 U.S. 819 (1995)).
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21-12583 Opinion of the Court 35
3
Having concluded that Speech First is likely to succeed on
the merits—the most important preliminary-injunction criterion—
we turn briefly to the remaining criteria. First, in the absence of a
preliminary injunction, Speech First would undoubtedly suffer ir-
reparable harm—which we have called “the sine qua non of injunc-
tive relief,” Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000)
Second, and separately, the Supreme Court recently limited Tinker’s
application, even in the high-school setting. It held that “courts must be more
skeptical of a school’s efforts to regulate off-campus speech” and that “[w]hen
it comes to political or religious speech that occurs outside school or a school
program or activity, the school will have a heavy burden to justify interven-
tion.” Mahanoy Area Sch. Dist. v. B. L. ex rel. Levy, 141 S. Ct. 2038, 2046
(2021). Accordingly, even if the Tinker framework applied here as a general
matter, UCF’s policy, which reaches beyond the classroom, may well fall (at
least in part) outside of it.
Finally, by its own terms, Tinker’s deferential standard doesn’t apply
to viewpoint-based restrictions like the one we confront here. The Court said
there that “[i]n order for the State in the person of school officials to justify
prohibition of a particular expression of opinion, it must be able to show that
its action was caused by something more than a mere desire to avoid the dis-
comfort and unpleasantness that always accompany an unpopular viewpoint.”
393 U.S. at 509. The Supreme Court has consistently held that the govern-
ment may not regulate on the basis of viewpoint even within a category of
otherwise proscribable speech. See, e.g., R.A.V., 505 U.S. at 383–390 (explain-
ing that even if some categories of speech are unprotected by the First Amend-
ment, the government may not regulate within an excluded category based
on the viewpoint expressed). So even if UCF could (per Tinker) restrict har-
assing speech that disrupts the school’s functions, it couldn’t do so, as it has
here, based on the viewpoint of that speech. Put simply, the University can’t
pick and choose which types of disruptive speech to prohibit.
USCA11 Case: 21-12583 Date Filed: 05/02/2022 Page: 36 of 42
36 Opinion of the Court 21-12583
(citations and internal quotations omitted). We have expressly
held that “an ongoing violation of the First Amendment constitutes
an irreparable injury.” FF Cosms., 866 F.3d at 1298. Second, on
the balance of equities, we can see arguments going both ways: On
the one hand, Speech First’s members’ free-speech rights will be
impaired if they are silenced; on the other hand, the University (and
other students) may have to tolerate some unprotected conduct.
Finally, we think that the public-interest factor favors granting the
injunction. As the Supreme Court has stated, “[t]he First Amend-
ment, in particular, serves significant societal interests.” First Nat’l
Bank of Bos. v. Bellotti, 435 U.S. 765, 776 (1978); see also Demo-
cratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312, 1327 (11th Cir.
2019) (“[T]he public interest is served when constitutional rights
are protected.”). Although the First Amendment sometimes al-
lows hurtful expression, that’s a cost that “We the People” have
accepted as necessary to protect free-speech interests more gener-
ally. See Otto, 981 F.3d at 864 (“The First Amendment exists pre-
cisely so that speakers with unpopular ideas do not have to lobby
the government for permission before they speak.”).
* * *
After considering each of the four factors—and in deference
to the first and second as the most significant—we hold that Speech
First is entitled to an injunction of the discriminatory-harassment
policy.
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21-12583 Opinion of the Court 37
B
Because it found (erroneously, we conclude) that Speech
First lacked standing to challenge the bias-related-incidents policy,
the district court never considered that policy on the merits. Ac-
cordingly, we remand to the district court to decide in the first in-
stance whether the chill caused by the bias-related-incidents policy
is substantial enough to violate the First Amendment. See Calla-
han v. U.S. Dep’t of Health & Hum. Servs., 939 F.3d 1251, 1266
(11th Cir. 2019) (“We are, after all, a court of review, not a court of
first view.”). Relatedly, we leave it to the district court to deter-
mine in the first instance whether and to what extent the objective
chill that gives Speech First Article III standing, see supra at 23–28,
likewise establishes its claim on the merits.
IV
Nowhere is free speech more important than in our leading
institutions of higher learning. Colleges and universities serve as
the founts of—and the testing grounds for—new ideas. Their chief
mission is to equip students to examine arguments critically and,
perhaps even more importantly, to prepare young citizens to par-
ticipate in the civic and political life of our democratic republic. It’s
hardly surprising, then, that the Supreme Court has “long recog-
nized that, given the important purpose of public education and
the expansive freedoms of speech and thought associated with the
university environment, universities occupy a special niche in our
constitutional tradition.” Grutter v. Bollinger, 539 U.S. 306, 329
(2003); see also Healy, 408 U.S. at 180 (“The college classroom with
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38 Opinion of the Court 21-12583
its surrounding environs is peculiarly the ‘marketplace of ideas.’”);
Sweezy v. State of N.H. by Wyman, 354 U.S. 234, 262 (1957)
(Frankfurter, J., concurring) (emphasizing that a “free society” de-
pends “on free universities”). Accordingly, it is imperative that
colleges and universities toe the constitutional line when monitor-
ing, supervising, and regulating student expression. Despite what
we presume to be the very best of intentions, it seems to us sub-
stantially likely that the University of Central Florida crossed that
line here.
* * *
For the foregoing reasons, we hold (1) that Speech First has
standing to challenge both the discriminatory-harassment and bias-
related-incidents policies, (2) that the district court abused its dis-
cretion in refusing to preliminarily enjoin the discriminatory-har-
assment policy, and (3) that the district court should determine in
the first instance whether Speech First is entitled to a preliminary
injunction of the bias-related-incidents policy.
REVERSED in part, VACATED in part, and REMANDED.
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21-12583 MARCUS, J., concurring 1
MARCUS, Circuit Judge, concurring:
I join fully in Judge Newsom’s opinion for this Court. The
University of Central Florida’s discriminatory-harassment policy
almost surely violates the First Amendment. It is grievously over-
broad, and it is a content- and viewpoint-based restraint on free
speech.
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 “in-
terferes 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.
It is in a university setting, perhaps above all others, that our
foundational ideas must be subject to examination and re-examina-
tion. The process is not necessarily gentle or even cordial, but it
cannot be cut off because sometimes it is unpleasant or provocative
or exasperating. “Education should not be intended to make peo-
ple comfortable, it is meant to make them think. Universities
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2 MARCUS, J., concurring 21-12583
should be expected to provide the conditions within which hard
thought, and therefore strong disagreement, independent judg-
ment, and the questioning of stubborn assumptions, can flourish in
an environment of the greatest freedom.” Report of the Commit-
tee on Freedom of Expression, UNIV. OF CHICAGO (2015) (quoting
President Hanna Holborn Gray).
The University’s discriminatory-harassment policy touches
on every conceivable topic that may come up on a college campus.
Religion, political affiliation, ethnicity, national origin, age, gender
identity or expression, and genetic information are just a select few
targeted by the policy. The specter of punishment for expressing
unorthodox views on these topics stifles rigorous intellectual de-
bate. And the harm is not limited to professors and students while
they are on campus. Our future civic and scientific leaders surely
will take these values with them after graduation. See Maj. Op. at
37-38.
A university that has placed its highest premium on the pro-
tection 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. Its unambiguous mission
must remain the pursuit of truth. John Stuart Mill put it best in his
classic work, On Liberty:
The peculiar evil of silencing the expression of an
opinion is that it is robbing the human race; posterity
as well as the existing generation; those who dissent
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21-12583 MARCUS, J., concurring 3
from the opinion, still more than those who hold it.
If the opinion is right, they are deprived of the oppor-
tunity of exchanging error for truth; if wrong, they
lose, what is almost as great a benefit, the clearer per-
ception and livelier impression of truth produced by
its collision with error.
JOHN STUART MILL, ON LIBERTY 19 (1859).
A university that turns itself into an asylum from controversy has
ceased to be a university; it has just become an asylum.
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21-12583 STORY, J., concurring 1
STORY, District Judge, concurring:
I concur in the opinion of the Court but write separately to
make clear that the opinion does not prohibit a university from
establishing a program that provides students an opportunity to
engage in civil discussions concerning differing viewpoints.1
“Colleges and universities unquestionably benefit from the flow of
ideas, debate, and deliberation on campus. These institutions
should strive to foster an environment where critical thoughts, and
sometimes strong disagreement, can flourish.” Speech First, Inc. v.
Killeen, 968 F.3d 628, 632 (7th Cir. 2020) (citation and quotations
omitted). The only restriction placed on such programs by today’s
decision is an important one. The program may not be designed in
such a way as to chill First Amendment rights. Insisting on
compliance with the First Amendment should not prevent
universities from exploring ways to lower the temperature on
debate and help their students learn how to listen to and
understand opposing viewpoints. As acknowledged by Speech
First, the creation of such programs without running afoul of the
First Amendment is possible. Oral Arg. at 54:08-55:49; Appellant
Reply Br. at 16-17.
1I do not mean to delve too deeply into the merits of the claim based on the
bias-related-incidents policy. I recognize that as a court of review, it is not for
us to decide this issue in the first instance. However, as it has been suggested
the district court may determine that “the objective chill that gives Speech
First Article III standing, likewise establishes its claim on the merits,” I offer
these observations.