First Amendment Challenge to Texas State University Speech Code Can Go Forward
From today’s Fifth Circuit decision in Speech First, Inc. v. McCall, written by Judge James Ho and joined by Judges Kyle Duncan and Andrew Oldham:
“Education should not be intended to make people comfortable; it is meant to make them think.” Comm. on Freedom of Expression, Univ. of Chicago, Report of the Committee on Freedom of Expression (2015) (quoting President Hanna Holborn Gray).
But according to Speech First, Texas State University has adopted a harassment policy that reflects the opposite principle—and thus conflicts not only with basic pedagogical principles, but also the First Amendment.
Rather than welcome debate, the University prohibits “unwelcome verbal” or “written … conduct.” The policy does not define what is “unwelcome,” nor what constitutes “verbal” or “written” “conduct.” But it appears to forbid speech that some individuals or groups could find uncomfortable—namely, speech about “race, color, national origin, age, sex, religion, disability, veterans’ status, sexual orientation, gender identity, or gender expression” that some “reasonable person” could find “offensive” or “hostile.”
Speech First contends that this policy will be used to target politically disfavored speech on sensitive topics like abortion, immigration, racial preferences in educational admissions, and transgender ideology. So it brought this suit challenging the policy under the First Amendment.
The district court agreed with Speech First’s constitutional concerns. The court noted that Texas State had a “real problem,” and that the policy had “critical First Amendment issues,” because it would stifle “unpopular opinions” and prevent “students from providing their viewpoint to other students.” The court even went so far as to say the policy would create “a communist society.” In sum, Texas State was “going to lose” on the merits.
But the district court nevertheless refused to issue a preliminary injunction.
Article from Reason.com
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