Learn more from the Eleventh Circuit’s decision today Speech First, Inc. v. Cartwright It was written by Judge Kevin Newsom with Judge Stanley Marcus as Judge and District Judge Richard Story. I find it quite correct.
The bias-related-incidents policy creates a mechanism by which a UCF student can be anonymously accused of an act of “hate or bias”—i.e., an “offensive” act, even if “legal” and “unintentional,” that is directed toward another based on any of a number characteristics that echo (but do not precisely mirror) those listed in the discriminatory-harassment policy. JKRT monitor[s]”, “track[s]” bias-related incidents, “coordinate[s]University resources” marshals “comprehensive responses[],” and, where necessary, coordinates “interventions” among affected parties….
The district court held that Speech First lacked standing to challenge the bias-related-incidents policy because, the court said, the JKRT couldn’t punish students itself but, rather, could only refer them to other university actors for discipline. Our opinion is that the court focused solely on JKRT’s authority to punish. The reason, already explained, is that a government actor can objectively chill speech—through its implementation of a policy—even without formally sanctioning it. Although punishment may be relevant in the objective chill analysis and could prove sufficient to cause the chilling effect, an analogous precedent shows that it is not determinative and not always required.
This is the seminal case Bantam Books, Inc. v. Sullivan (1963). The Supreme Court addressed the legality of some actions taken by the Rhode Island Commission to Encourage Morality In Youth. Its charge was to educate the public about any book, image, pamphlet or printed paper containing indecent, obscene or immoral language or clearly tending to corruption among the youth. It was the practice of the commission to inform a bookeller that some books and magazines he had distributed had been subject to review by it, which had been rejected by most members.[ him]Advance[]For his “cooperation”, to “remind[ him]”of the Commission’s obligation to recommend to Attorney General prosecution for purveyors or obscenity” and inform him[c]The local police received copies of the “objectionable” publications lists.
The state stood by the assertions of the bookseller that his First Amendment rights were affected by the challenged practices. This was based on the fact that the commission did not have formal disciplinary power.[I]It doesn’t regulate or suppress obscenity. Instead, it exhorts booksellers about their legal rights and informs them. The argument of the state, “premised upon the Commission’s lack of power to apply formal sanctions,” was rejected by the Court.
Also, the Court rejected the argument of the state that the bookseller’s compliance with Commission directives was voluntary. This was despite the fact that technically a bookseller could ignore that body’s notices. “People don’t,” said the Court. “People lightly disregard threats by public officers to bring criminal charges against them if the do not comply,” The Court added. Italics. at 68. Rather, the Court held that even “informal sanctions”—including “coercion, persuasion, and intimidation”—can sufficiently inhibit expression as to violate the First Amendment, and to give a plaintiff standing to sue. It is necessary, the Court held, to “look through forms to the substance and recognize that informal censorship may sufficiently inhibit”—i.e., chill—”the circulation of publications to warrant injunctive relief.” …
In the Second Circuit’s Decision Okwedy v. Molinari (2d Cir. 2003), (per Curiam), is identical. In that case, the plaintiffs hired a billboard firm to put up signs on Staten Island decrying homosexuality. Staten Island Borough President sent a note to the billboard firm stating that signs had been “unnecessarily confronting and offensive” and were intended “to convey the message of homosexuality.”[ed]An atmosphere of intolerance [un]He said, “Welcome to our Borough”, and asked for a representative from the company’s office to get in touch with the “Chair” [his]Anti-Bias Task Force will discuss the issue further [he had]In th[e] letter.” Capitulating, the billboard company removed the signs…. The Second Circuit … [held]That “[a]Although the existence or absence of any regulatory authority or other decisionmaking power is relevant for the determination of whether comments made by a government official were constitutionally threatening or coercive or not, defendants without direct regulatory authority or decisionmaking authority may also be able to exert an impermissible level or degree of pressure. According to the court of appeals, it was able to reasonably believe, based upon the available information, that the president of the Borough “intentionally used his official power” to punish the billboard company for not responding to his requests.
Bantam Books Okwedy demonstrate a commonsense proposition: Neither formal punishment nor the formal power to impose it is strictly necessary to exert an impermissible chill on First Amendment rights—indirect pressure may suffice. The University was not as imposing as the government. Bantam Books Okwedy. But just as surely, the students targeted here are—for the most part—teenagers and young adults who, it stands to reason, are more likely to be cowed by subtle coercion than the relatively sophisticated business owners in those cases. And the question for us is whether the average college-aged student would be intimidated—and thereby chilled from exercising her free-speech rights—by subjection to the bias-related-incidents policy and the JKRT’s role in enforcing it.
Our answer to this question is, according to us, yes. No reasonable college student wants to run the risk of being accused of “offensive,” “hostile,” “negative,” or “harmful” conduct—let alone “hate or bias.” A college student wouldn’t want to be accused of “offensive,” “hostile,” or even “harmful” conduct.[]” her, “monitor[]You can mount an “intelligible response” or she may.[]She is against it. And as with the discriminatory-harassment policy, the breadth and vagueness of the bias-related-incidents policy exacerbates the chill that the average student would feel.
The policy, for instance, reaches “any behavior or action”—even if both “legal” and “unintentional”—that is “directed towards an individual or group” based on “actual or perceived identity characteristics”—including but not limited to those rooted in any of at least 11 different traits. The policy also defines “bias acts” as any act that may contribute to an unwelcoming, unsafe or negative environment. [for]victim and anyone sharing the same social identity with the victim. And the policy applies to a non-exhaustive laundry list of behaviors—including, among others, “graffiti [and]Signs,” “Confrontation,” or “gestures.” Pair that broad, vague, and accusatory language with the task-force-ish name of the investigating organization—the Just Knights Response The Team—and we think it clear that the average college student would be intimidated, and quite possibly silenced, by the policy. Because the bias-related-incidents policy objectively chills student speech, Speech First’s members have standing to challenge it….
Because it found (erroneously, we conclude) that Speech First lacked standing to challenge the bias-related-incidents policy, the district court never considered that policy on the merits. Accordingly, we remand to the district court to decide in the first instance whether the chill caused by the bias-related-incidents policy is substantial enough to violate the First Amendment. Relatedly, we leave it to the district court to determine in the first instance whether and to what extent the objective chill that gives Speech First Article III standing likewise establishes its claim on the merits….
Richard Story was a member of the majority, but added:
While I agree with the Court’s opinion, I write to clarify that it does not prevent a university to establish a program which allows students to have civil conversations about opposing views. Universities and colleges both benefit unquestionably from campus debate and ideas. This should be a goal of these institutions to encourage critical thought and even strong disagreement.
Today’s decision places an important restriction on these programs. It is possible that the program will not chill First Amendment rights. The First Amendment is not an excuse for universities to insist on its compliance. Universities can explore ways to make debate more civil and to help students understand the differences. Speech First acknowledged that it is possible to create such programs, without breaking the First Amendment.
More details about the policy are available here:
There are many parts to the policy on “Bias Related Incidents”. First, it defines the key term—”bias-related incident”—as follows:
Any behavior or act directed against an individual/group based upon perceived or actual identity characteristics, or backgrounds is considered a bias-related incident. This bias motivates an individual to act in an offensive manner towards an individual or group including but not limited to: race, sex (including gender identity/expression), color, religion, ancestry, national origin, age, disability, veteran status, military status, or sexual orientation. This can lead to a hostile environment, which may cause a psychological, emotional, or physically negative impact on an individual and/or group.
The policy also states that the “”[b]Incidents involving ias are not subject to legality, whether they were intentional or illegal. However, such incidents “need to rise to the level a crime or a violation state law, university policies, or the student code. A “bias act,” on the other hand, is one which “may contribute towards creating an unsafe and negative environment.” [for]”The victim” or someone with the same socio-economic identity as the victim and/or members of the University community.
Third, the bias-related-incidents policy states that “[i]ncidents which occur on campus that are not covered by formal policies and procedures but have the effect of harming individuals or groups may be addressed by the Just Knights Response Team (JKRT) protocol”—of which more below. That “protocol may be initiated in cases when it is clear that the incidents have harmful effects on persons or groups based upon their race, sex (including gender identity/expression), color, religion, ancestry, national origin, age, disability, veteran status, military status, or sexual orientation.”
The policy also provides an exhaustive list of possible bias-related incidents. These “may contain (but not be limited to) any 13 behavior, which can range from physical injury and stalking, on the one hand, to graffiti, on the other. [and]Signs,” “confrontation”, and “gestures” on the other side.
As just noted, the bias-related-incidents policy is implemented by the JKRT, which is made up of UCF students, faculty, and staff. Representatives from UCF’s offices of Student Development and Enrollment Services, Housing and Residence Life, Social Justice and Advocacy, Faculty Relations, and UCF Police Department are some examples of university staff who make up the JKRT.
The JKRT is described by UCF as follows on the UCF website:
In the unlikely event of you witnessing or experiencing hateful or biased behavior, we can help. This web site allows for the anonymous reporting of bias incidents, which will ensure that the appropriate university response is provided.
UCF will also monitor patterns of bias, and other instances at the University that may hinder the University from being a successful community. As a group, it is our aim to make positive changes in the campus community. We provide a forum for people to share any hurtful acts. We will also create an open, transparent response from the university to these incidents.
JKRT was created to provide a source for those who want to explore issues such as bias, discrimination or hatred. No matter your motivations for visiting this website, UCF is committed to creating a campus that is more inclusive and diverse. All our students are welcome to live and learn in a welcoming environment.
This website explains the JKRT’s Purpose Statement in these terms:
Its purpose is to Just Knights Response Team The JKRT is responsible for clearing any incidents involving bias on UCF campuses. The JKRT is responsible for receiving, monitoring, referring, and, if necessary, coordinating university resources in response to incidents that affect the university community.
This team is made up UCF staff and faculty. It provides students with a space to share their experiences and to receive comprehensive answers.
The JKRT policy is described as follows.
Just Knights Response Team, also known as JKRT (Just Knights Response Team), is an interdivisional organization that examines bias incidences to help coordinate university resources in the development of efficient interventions and preventive programming. JKRT provides timely intervention to incidents while respecting the rights of all involved. JKRT interventions and programming should be educational in nature. The JKRT will include a range of activities, including mediation, counseling, training and counseling, as well as discussion. The JKRT will encourage campus civility through the participation of those affected by bias incidents.
Student who believes he was the victim of bias can anonymously report the incident through the JKRT website. You will need to provide details about the incident, such as date, place, and other pertinent information.To “list” the people involved and their desired outcome, According to the JKRT, information about a student complainant may be shared with “Office of Student Conduct,” “Office of Student Rights and Responsibility,” and “UCF Police Department.”
{If a UCF student has been accused of engaging in bias-related behavior, the JKRT informs the student by sending the following email.
Greetings,
My name’s [INSERT NAME]. University of Central Florida has a policy of monitoring patterns of bias in the university. As a University employee, I serve on the Just Knights Response Team.
Just Knights Response Team, also known as JKRT (Just Knights Response Team), is an interdivisional organization that examines bias incidences to help coordinate university resources in the development of efficient interventions and preventive programming. JKRT provides timely intervention for incidents while respecting the rights of all involved. JKRT interventions and programming should be educational in nature. The interventions include a range of activities such as discussion, mediation and counseling. The JKRT will encourage campus civility through the participation of those affected by bias incidents.
JKRT does not extend UCF Human Resources or the Office of Student Rights and Responsibilities. Our authority is not to issue punitive actions. While we value privacy and anonymity, there are times when certain information must be disclosed to university officials (ex. Title IX violations, criminal activities and/or imminent dangers are not permitted.
A report has been received about an incident that you might have reported or participated in. This is a matter for which I am interested in speaking with you. Your participation is voluntary.
You can reach me by replying with your preferred contact number. To schedule an appointment for me to call or to speak by phone, I will contact you. If you don’t respond within two weeks I will conclude that there is no interest to speak with me.
Ich freue mich, to hear from you.
[INSERT NAME]
University of Central Florida jkrt@ucf.edu}