Mangling First Amendment, Federal District Judge in Maryland Makes Challenging Unconstitutional Speech Codes Unreasonably Difficult

By January 29, 2009

In a poorly reasoned decision handed down this week, a federal district court in the Fourth Circuit dismissed parts of a First Amendment complaint against the University of Maryland, Baltimore County (UMBC). Represented by the Alliance Defense Fund, two UMBC students and the UMBC pro-life student group Rock for Life filed a federal complaint alleging that UMBC’s sexual harassment policy, code of conduct and policy on facility use violated the First Amendment. Instead of addressing the constitutionality of the policies, the judge dismissed two of the allegations on the grounds that the students lacked standing to sue.

The case arose out of Rock for Life’s attempts to put up pro-life posters on campus. After the group received permission from UMBC to put up their posters, UMBC demanded that the group pay for security for their posters (which, together, constituted a "photo-mural"). The university then quickly changed its mind, asking that the group display their posters at a different location instead. When the group set the posters up at the new location, UMBC again forced the group to move, this time to a low-traffic area where few students would see the display.

During discussions with the group, the university counsel voiced his concern that the pro-life posters comparing abortion to genocide would "emotionally harass" others students and, he explained, the university had the right to prevent such "emotional harassment." He then purportedly forced the students to move the posters under the "Policy on Facility Use," which gave the university unfettered discretion to make students move their signs.

Rock for Life sued UMBC, challenging the constitutionality of the policy on facility use, since it was the regulation the university had purportedly relied on to move the pro-life posters to a remote location. Rock for Life also challenged the constitutionality of UMBC’s policy banning "emotional harassment"—the student code of conduct—and the university’s sexual harassment policy. In so doing, Rock for Life sought to eliminate three policies that prohibited a great deal of its—and all other students’—protected speech.

In a tacit admission of the unconstitutionality of the policies, after the lawsuit was filed, UMBC agreed to voluntarily change its policy on facility use and the student code of conduct. Rock for Life thus dropped its pursuit of an injunction against those two policies. It continued to seek an injunction against the unchanged sexual harassment policy and requested damages to compensate for the harms caused by all three policies: the existing sexual harassment policy, the former policy on facility use, and the student code of conduct.

The judge, however, claimed that the students lacked standing to lodge a constitutional challenge to the sexual harassment policy or the former student code of conduct. According to the judge, despite the fact that UMBC, in its treatment of Rock for Life, had expressed a clear willingness to enforce unconstitutional policies, the students had failed to demonstrate that they faced a credible threat of punishment under either of those two policies.

This is, at best, a strained reading of the law and the facts. First, the mere existence of a policy authorizing punishments up to expulsion presents a credible threat of punishment. It’s bizarre to claim that a reasonable student would read a policy authorizing expulsion and say, "Oh, well, surely the college will never enforce THAT policy. Sure, it says I could be expelled, but that’s not credible."

The U.S. Supreme Court has rightfully dismissed such strange logic. When a group of booksellers challenged a Virginia law that prevented them from displaying materials of a "sexual" nature that might be seen by minors, the Court rejected the idea that the booksellers had to first demonstrate that the law would be enforced, writing, "We are not troubled by the pre-enforcement nature of this suit. The State has not suggested that the newly enacted law will not be enforced, and we see no reason to assume otherwise." Virginia v. American Booksellers Ass’n, 484 U.S. 383, 393 (1988). 

Indeed, reasonable citizens assume a law authorizing punishment is a credible threat, and may be used against them. To do otherwise would be irrational.

The Court further explained in American Booksellers that with respect to the First Amendment, the mere existence of a law authorizing punishment of protected speech creates a constitutional harm. "[T]he alleged danger of this statute is, in large measure, one of self-censorship; a harm that can be realized even without an actual prosecution." Virginia v. American Booksellers Ass’n, 484 U.S. 383, 393 (1988).  

The Court has long held that laws broadly regulating protected speech will often cause citizens to self-censor instead of risk punishment. As a result, if courts refuse to rule on such laws until they have been enforced, the government may effectively censor the marketplace of ideas simply by passing laws restricting speech. Because of this danger, the Court has relaxed the requirements of standing for First Amendment challenges, explaining, "Facial challenges to overly broad statutes are allowed not primarily for the benefit of the litigant, but for the benefit of society—to prevent the statute from chilling the First Amendment rights of other parties not before the court." Secretary of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 958 (1984).  

This is precisely what Rock for Life was attempting to do—vindicate its own right to speak freely at UMBC, and at the same time, vindicate all other students’ rights to do the same. UMBC’s sexual harassment policy prohibits, among other things, "verbal conduct" of a "sexual nature" that has the "purpose or effect" of creating an "intimidating" or "offensive educational… environment." Its former code of conduct prohibited "emotional harassment." Such policies are clearly unconstitutionally vague and overbroad, leaving students with little guidance as to what speech is prohibited under the policy.

By refusing to allow Rock for Life to challenge these policies on their faces, the district court has refused to recognize that students have self-censored—and will continue to do so—in order to avoid the risk of punishment. As a result, UMBC can continue to censor a great deal of speech on campus without having to face a court of law. That’s a deeply regrettable outcome, one that may effectively eviscerate the First Amendment protections of students at UMBC.

An additional harm of allowing such policies to not face a constitutional challenge is that these policies misinform students about their constitutional rights. As students read the still-existing sexual harassment policy, they will assume that the Constitution allows public institutions to ban speech of a "sexual nature" that creates an "offensive environment."

Such misinformation puts the future of free speech rights in peril because without citizens jealously guarding their rights, the government will happily encroach upon them. At FIRE, we have seen many student governments attempt to censor their fellow students. One might reasonably conclude that the student governments’ instinct to censor speech arises in large part because colleges, by maintaining unconstitutional policies, have taught their students that censoring speech is a permissible and sensible response to speech one finds offensive.

What makes this case even worse is that the plaintiffs presented plenty of evidence that UMBC would use these policies against students. Not only was their own pro-life display moved unconstitutionally, the UMBC police log indicated that they had investigated "acts of intolerance" and "harassment." Further, the university counsel indicated to the students that the college could prohibit "emotional harassment," and he was concerned that pro-life signs constitute "emotional harassment."

The fact that these incidents—combined with policies explicitly authorizing punishments up to expulsion for protected speech—were not enough for the judge to conclude that the students faced a credible threat means that the judge has set the bar for bringing First Amendment challenges far too high. He seems to have essentially found that without an actual punishment, the students lack standing to challenge the constitutionality of the policies.

This finding contradicts Supreme Court doctrine, defies common sense, and imperils free speech on campus. All who cherish their constitutional right to free expression must hope it will be overturned on appeal.