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Coalition of amici urges Supreme Court review in FIRE lawsuit at University of South Carolina

Students Michael Kriete and Ross Abbott were questioned by USC administrators from the equal opportunity office over their display on campus censorship that some students found "triggering."

Last week, a broad coalition of organizations and several law school First Amendment clinics filed amici curiae briefs urging the Supreme Court of the United States to hear Abbott v. Pastides, a FIRE-sponsored lawsuit challenging the University of South Carolina’s investigation of student groups for holding a free speech event on campus. The case is part of FIRE’s Stand Up For Speech Litigation Project.   

The plaintiffs — a former USC student and two student organizations — filed a petition for writ of certiorari in November, asking the Supreme Court to review a disappointing decision by the U.S. Court of Appeals for the Fourth Circuit upholding the dismissal of their lawsuit.

The case originated in late 2015, when the USC College Libertarians and Young Americans for Liberty chapters held an outdoor free speech event displaying posters featuring incidents of censorship on other campuses. After USC received three complaints that the event was offensive, the student organizer received a letter labeled a “Notice of Charge,” summoning him to a meeting with the administration two weeks later and forbidding him from discussing it with others. He waited a further two weeks before finally learning that he and the student groups would not be charged with violating the college’s policy against discrimination and harassment.

In August, the Fourth Circuit ruled that USC’s investigation did not violate the plaintiffs’ First Amendment rights and that they lacked standing to challenge the policy under which they were investigated. Taking a “no harm, no foul” approach, the court reasoned that USC’s investigation of the complaints was appropriate — even though it did chill plaintiffs’ speech — and a student of “ordinary firmness” would not be deterred from holding similar events in the future.

Now, a number of amici curiae have joined plaintiffs in urging the Supreme Court to uphold student speech rights and tell the Fourth Circuit that it got its First Amendment analysis wrong. The ACLU of South Carolina, DKT Liberty Project, the Cato Institute, and Reason Foundation united to file an amicus brief powerfully illustrating the “systematic adoption of sweeping speech codes that contradict the court’s basic First Amendment jurisprudence” at campuses nationwide, which are regularly invoked to investigate protected speech.

The First Amendment Clinics at Duke Law School and Arizona State University’s Sandra Day O’Connor College of Law filed a second amicus brief. The student clinics skillfully outline the need for the high court’s intervention to safeguard students’ constitutional right to free speech, consistently upheld by the Supreme Court for decades. That right, they explain, risks being swallowed by overbroad speech codes that are too often enforced via procedures that fail to screen out complaints about protected speech, leaving no safe harbor from investigation for anyone’s speech if there is anyone who doesn’t like it.

We hope that amici’s excellent arguments help the Supreme Court better understand the Fourth Circuit’s decision in the context of the nationwide prevalence of campus speech codes and the chilling effect inherent in investigations of protected speech. And we hope to soon be able to report that the court has agreed to hear Abbott v. Pastides.

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