## Facts

- Speech First, Inc., a membership organization representing students at a public university, sued the university president and officials under the First Amendment.
- The suit challenged two university policies: (1) a “discriminatory-harassment” policy and (2) a “bias-related-incidents” policy administered through a bias-response team.
- The discriminatory-harassment policy prohibited “verbal, physical, electronic or other conduct” based on numerous protected characteristics (including political affiliation) that “unreasonably interferes with” education, employment, or participation in university programs; enforcement considered the “totality of known circumstances.”
- The discriminatory-harassment policy also extended to students who “condone,” “encourage,” or “fail to intervene” in proscribed conduct.
- The bias-related-incidents policy defined bias incidents to include “offensive” conduct that could be “legal and unintentional,” permitted anonymous reports, and empowered a response team to track incidents and contact accused students for “education” or meetings.
- Student declarants stated they wished to express controversial political and social views but refrained out of fear of investigation or discipline under the policies.
- The district court denied a preliminary injunction, concluding (among other things) that Speech First lacked standing to challenge the bias-related-incidents policy and was unlikely to succeed on the merits as to discriminatory harassment.

## Issues

1. Whether Speech First had associational standing to bring facial First Amendment challenges based on members’ self-censorship arising from an objectively reasonable fear of enforcement or investigation.
2. Whether Speech First was substantially likely to succeed, for preliminary-injunction purposes, in showing that the discriminatory-harassment policy violated the First Amendment (including overbreadth and content/viewpoint discrimination).
3. Whether the district court erred by rejecting standing as to the bias-related-incidents policy and therefore not reaching its constitutionality.

## Decision

- The Eleventh Circuit reversed in part, vacated in part, and remanded.
- The court held Speech First had associational standing to challenge both policies because members showed an objectively reasonable chilling effect on their speech.
- The court held Speech First was substantially likely to succeed on the merits against the discriminatory-harassment policy because it likely burdened a substantial amount of protected speech and operated as content- and viewpoint-based regulation subject to strict scrutiny.
- The court vacated the standing ruling as to the bias-related-incidents policy and remanded for the district court to evaluate that policy’s constitutionality in the first instance.

## Legal Principles

- In First Amendment pre-enforcement challenges, objectively reasonable self-censorship in response to a credible threat of enforcement or investigation is an injury in fact sufficient for standing.
- An organization has associational standing when (1) at least one member would have standing, (2) the interests are germane to the organization’s purpose, and (3) the claim and relief do not require individualized member participation.
- Public-university speech regulations are governed by ordinary First Amendment standards; the K–12 “substantial disruption” framework does not control.
- A regulation is unconstitutionally overbroad if, judged in relation to its legitimate sweep, it prohibits a substantial amount of protected speech.
- Policies that restrict speech because it is “based upon” specified topics or characteristics are content-based; policies that target negative or offensive speech about protected groups while permitting favorable speech are viewpoint-based.
- Content- and viewpoint-based restrictions are presumptively unconstitutional and generally must satisfy strict scrutiny; policies that reach beyond unprotected categories (e.g., true threats, incitement, actionable harassment) are unlikely to be narrowly tailored.

## Conclusion

The Eleventh Circuit held that students’ objectively reasonable fear of discipline or bias-response investigation established standing to challenge both a discriminatory-harassment policy and a bias-incident policy, found the harassment policy likely unconstitutional as substantially overbroad and viewpoint-based, and sent the bias-incident policy back for constitutional review.


Speech First, Inc. v. Cartwright, 32 F.4th 1110 (11th Cir. 2022)