Best of the Blog: “Victory for Free Speech: Third Circuit Strikes Down University of Virgin Islands’ Speech Codes”

By August 5, 2013

This week, FIRE has a special treat for you. We’ve rounded up some of our best blogs from over the years: pieces we think are particularly well written or cases we are particularly passionate about. Today, we hear from Azhar Majeed, who wrote about McCauley v. University of the Virginia Islands when the decision was issued on August 19, 2010. Please enjoy! The United States Court of Appeals for the Third Circuit issued an opinion today in McCauley v. University of the Virgin Islands striking down unconstitutional speech policies maintained by the University of the Virgin Islands (UVI) on First Amendment grounds. As our press release details, the appellate court’s decision is a momentous victory for freedom of speech on campus.The Third Circuit—whose jurisdiction includes the Virgin Islands as well as Pennsylvania, New Jersey, and Delaware—found the university’s regulations prohibiting "offensive" or "unauthorized" signs and conduct causing "emotional distress" unconstitutional. The Third Circuit also upheld the federal district court’s invalidation of a policy that forbade causing "mental harm" or "demean[ing]" or "disgrac[ing]" any person. In December 2009, FIRE filed a friend-of-the-court brief urging the Third Circuit to reach this result. The case got its start in May 2009 when former UVI student Stephen McCauley filed suit against UVI in the U.S. District Court of the United States Virgin Islands, alleging that UVI’s application of its "Hazing-Harassment" policy against him violated his First Amendment rights. The policy prohibits "any act which causes … mental harm or which … frightens, demeans, degrades or disgraces any person." McCauley also alleged that UVI was violating the First Amendment rights of all UVI students by maintaining this policy and other facially unconstitutional speech codes, including regulations prohibiting "offensive" or "unauthorized"  signs and conduct causing "emotional distress." In an August 2009 opinion, the district court invalidated UVI’s Hazing-Harassment policy as unconstitutionally overbroad, but allowed two other constitutionally flawed policies to remain intact. Making matters worse, the district court’s opinion incorrectly analyzed collegiate speech restrictions by applying court decisions concerning grade school and high school speech standards, something that FIRE has long argued against here on The Torch, in our legal scholarship, and elsewhere.McCauley appealed the ruling in September 2009. On December 22, 2009, FIRE filed an amicus curiae brief with the Third Circuit, asking the court to stand by its landmark decision in DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008), and to reverse the lower court’s ruling upholding the flawed policies. Attorney L. Theodore Hoppe, Jr., a member of FIRE’s Legal Network, represented FIRE in the filing.Today’s ruling, authored for a unanimous panel by Judge D. Brooks Smith, strikes down the two flawed UVI policies upheld by the lower court. Noting that a "desire to protect the listener cannot be convincingly trumpeted as a basis for censoring speech for university students," the Third Circuit found UVI’s policy forbidding "offensive" or "unauthorized" signs to be unconstitutionally overbroad. Similarly, citing its opinion in DeJohn, the court found UVI’s prohibition of conduct causing "emotional distress" equally untenable, deeming the policy "entirely subjective" and finding that it "provides no shelter for core protected speech." The opinion notes that under this unconstitutional policy, "[e]very time a student speaks, she risks causing another student emotional distress," concluding that this "heavy weight" does "substantial" damage to free speech on campus.The Third Circuit’s ruling is thus yet another blow to campus speech codes and their proponents. As Robert states in today’s press release, "Today’s landmark ruling in favor of free expression on campus is still more proof that unconstitutional speech codes, when challenged in court, will not and cannot survive proper judicial scrutiny." As the second decision by the Third Circuit in three years to invalidate a speech code, following DeJohn in 2008, McCauley sends the message loud and clear to university administrators in the appellate court’s jurisdiction that they risk legal defeat for maintaining speech codes on their own campuses. Moreover, as yet another decision joining the ranks of over two decades of speech code precedent from across the country, McCauley should send the same message to administrators everywhere. McCauley is the third federal appellate court decision to invalidate a university speech code, and administrators who ignore these rulings do so at their own peril.Significantly, the Third Circuit’s opinion also spells out at length the sharp distinction between the relatively limited First Amendment rights afforded to high school students and the robust right to freedom of expression enjoyed by college students, a difference ignored by the lower court and argued at length in FIRE’s brief. Citing "the differing pedagogical goals of each institution, the in loco parentis role of public elementary and high school administrators, the special needs of school discipline in public elementary and high schools, the maturity of the students, and, finally, the fact that many university students reside on campus and thus are subject to university rules at almost all times," the Third Circuit held that "[p]ublic universities have significantly less leeway in regulating student speech than public elementary or high schools." This is a critical part of the opinion, and we will have more to say on the Torch about the Third Circuit’s recognition and treatment of these principles.Today’s decision from the Third Circuit is indeed cause for celebration for anyone who values open discourse and a free exchange of ideas on campus. We are happy to report this victory, and we will have more coverage of it in the coming days. 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