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Free Speech Advocates Stand Up For Bullies

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By Jeremy Conrad, Esq. on October 01, 2019 8:00 AM

Bullies aren’t a group we normally think of as needing someone to stick up for them, but in the Sixth Circuit case of Speech First, Inc. v. Schlissel a free speech advocate is doing just that. The University of Michigan instituted a policy prohibiting bullying and harassing behavior and a Bias Response Team (Response Team) initiative that Speech First says are overbroad violations of the First Amendment.

They sought a preliminary injunction against the policy and initiative that the district court declined to apply because they felt the organization lacked standing to challenge the initiative and that the claims against the policy were moot. The Court of Appeals disagreed on both counts and vacated the denial, sending the case back for further consideration.

Polite Policies

The University of Michigan’s Statement of Student Rights and Responsibilities (Statement) prohibits harassing or bullying another person physically, verbally, or through other means. Punishments included intervention and sanction that could result in a reprimand or expulsion.

Speech First’s primary complaint about the Statement had to do with their definition of bullying and harassing behavior, which weren’t explicit in the statement itself. The terms did get defined on the website of the Office of Student Conflict Resolution, which listed definitions from the Merriam-Webster Dictionary, University policies, and Michigan state law. Speech First only took issue with the dictionary definition, which they said was unconstitutionally vague. After they filed their lawsuit the school took down all but the definitions from Michigan state law, which hadn’t been challenged.

The Response Team had no power to penalize anyone, and was created to provide support to those who felt that they had experienced bias at the school and to direct them to appropriate resources. They could make referrals to the police or other school resources, but had no real authority of their own. Still, Speech First contended that their definition of a bias incident was overbroad and that the Response Team’s practices quashed their speech.

A Win for the Bullies

Although the District Court held that Speech First lacked standing to sue the University, the Court of Appeals pointed out that the organization didn’t allege that its own rights were violated. Rather, they took the position that the school’s policies violated the rights of its members who attended the school, meaning that they had associational standing to bring the lawsuit on their behalf.

The court said that although the Response Team didn’t have the authority to punish speech, they did have the power to refer students for potential punishment. They said that the formal investigation process itself objectively chilled speech.

Finally, the school’s amendment to its list of definitions did not render the case moot. The voluntary cessation of allegedly illegal conduct does not, as a general rule, moot the case. The school’s ongoing defense of the prior definitions as constitutional and their failure to affirmatively state that they wouldn’t reintroduce them in the future meant that the case was not moot.

Speech First hasn’t won their lawsuit yet, but they will get preliminary injunctions against the policy and the Response Team, so for the moment bullies at the University of Michigan can breathe easy knowing that the school will not interfere with their harassment of their fellow students.

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