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Federal Appeals Court: Free Speech May Be Chilled at UT Austin

October 30, 2020

A judge for the United States Court of Appeals for the Fifth Circuit ordered that a district court proceed with a lawsuit against the University of Texas at Austin for policies that allegedly violate students’ free speech rights, according to a ruling filed Wednesday.

A Texas district court judge dismissed the lawsuit in 2019. The suit was filed by Speech First, a national organization with a membership of students, parents, faculty members and others who advocate for free speech rights. Speech First claims that various policies for students at UT Austin, including the use of a Campus Climate Response Team, or CCRT, to report, investigate and punish students for bias incidents, made conservative students fearful of openly sharing their opinions, which others might find “offensive,” Fifth Circuit Judge Edith Jones wrote.

While the district court determined that Speech First and the students it is representing could not demonstrate “an intention to engage in speech that is prohibited or arguably covered by the challenged policies,” some of which were changed since the original lawsuit was filed, Jones and the Fifth Circuit disagreed. The university did not ensure that it would refrain from reinstating the former policies, Jones wrote. She also noted that the CCRT and Hate and Bias Incidents Policy are still in place. The conservative students do have reason to be concerned about their First Amendment rights, she wrote.

“Because their views do not mirror those of many on campus, their speech may be deemed ‘harassment,’ ‘rude,’ ‘uncivil,’ or ‘offensive,’ as those terms are defined in the university’s policies,” Jones wrote in the ruling. “Their speech may also credibly run afoul of the Hate and Bias Incidents Policy and may be investigated by the CCRT.”

Speech First and the students being represented should be able to ask the district court to temporarily block the CCRT and hate and bias policy as the court moves forward with the lawsuit, Jones concluded. She also noted similar cases against other college campuses involving “unconstitutionally overbroad or vague” speech codes that were struck down.

“In our current national condition … in which ‘institutional leaders, in a spirit of panicked damage control, are delivering hasty and disproportionate punishment instead of considered reforms,’ courts must be especially vigilant against assaults on speech in the Constitution’s care,” Jones wrote.

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