Federal Appeals Court Strikes Down UCF’s Anti-Free Speech Policy
"The discriminatory harassment policy is a speech code established by a government entity to quash constitutionally protected speech that does not comport with the leftist orthodoxy."
News & Commentary
On April 22, 2022, in Speech First v. Cartwright, the U.S. Court of Appeals for the Eleventh Circuit ruled against the University of Central Florida (UCF) in a 3-0 decision. Speech First brought the case based on two UCF policies, the “discriminatory harassment” policy and the “bias-related-incidents” policy.
Speech First represented three UCF students in the case. All three students would like to express mainstream conservative views, such as “abortion is immoral,” and “illegal immigration is dangerous.” However, the students have self-censored, fearing punishment under UCF’s anti-free speech policies.
Judge Newsom, writing for the Eleventh Circuit Court, summarized UCF’s discriminatory harassment policy as follows:
“The discriminatory-harassment policy prohibits ‘verbal, physical, electronic, or other conduct’ based on a long list of characteristics including, among others, ‘religion [or] non-religion,’ ‘genetic information,’ and ‘political affiliation.’ The policy applies to any conduct that, for instance, ‘unreasonably . . . alters’ another student’s ‘participation in a university program or activity.’ It specifies that discriminatory harassment ‘may take many forms’—including, broadly, ‘verbal acts, name-calling, graphic or written statements . . . or other conduct that may be humiliating’ . . . Lastly, the policy prohibits students not only from committing the specified acts, but also from ‘[c]ondoning,’ ‘encouraging,’ or even ‘failing to intervene’ to stop them.”
Regarding the bias-related-incidents policy, Judge Newsom stated that it “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." The University then deploys its bias response team, the Just Knights Response Team (JKRT), which “monitor[s] and 'track[s]' bias-related incidents, ‘coordinate[s] university resources,’ marshals a ‘comprehensive response,’ and, where necessary, coordinates 'interventions’ among affected parties.”
The United States District Court for the Middle District of Florida previously:
denied Speech First, a preliminary injunction against UCF’s discriminatory harassment policy, and
determined that Speech First lacked standing to challenge UCF’s bias-related-incidents policy.
The Eleventh Circuit Court overturned, in part, and vacated, in part, the District Court’s ruling. The Circuit Court struck down UCF’s discriminatory harassment policy. Additionally, it determined that Speech First has standing to challenge UCF’s bias-related-incidents policy. The Circuit Court remanded the challenge of UCF’s bias-related-incidents policy to the District Court for it to rule on.
The Eleventh Circuit determined that UCF’s discriminatory harassment policy has a chilling effect on the speech of UCF students. Primarily “because its operation would cause a reasonable student to fear expressing potentially unpopular beliefs” and feel that “he’d be better off just keeping his mouth shut.” Judge Newsom went on to argue that the discriminatory harassment policy is “almost certainly unconstitutionally overbroad” and “an impermissible content- and viewpoint-based speech restriction.” Therefore, the policy “likely violates the First Amendment.”
The UCF administration intentionally made the discriminatory harassment policy broad. The broad, vague language permitted the university to engage in content and viewpoint discrimination against conservative students. The administration could classify any mainstream conservative speech as harassment and subsequently punish students for that speech. Logically many center-right or conservative students remained silent due to this policy. However, remaining silent is not enough for a student to protect themself from punishment. Under the discriminatory harassment policy, UCF could punish any student who did not condemn speech that was deemed to be harassment.
Suppose a student claimed that “abortion is immoral,” and the university found that statement to be punishable under the discriminatory harassment policy. In that case, the university could punish the student who made the statement and every other student who did not overtly condemn it. The only way for those otherwise uninvolved students to avoid punishment is to condemn the student for saying "abortion is immoral." In effect, the policy requires conservative students to rebuke their own political beliefs to avoid punishment for "failing to intervene" in another student's purported harassment.
The discriminatory harassment policy is a speech code established by a government entity to quash constitutionally protected speech that does not comport with the leftist orthodoxy. The policy then forces conservative students to bow down to the university’s leftist administration and rebuke their own political ideology. The policy is a severe threat to both the right to free speech and our Constitution broadly. The Eleventh Circuit Court’s decision is crucial to restoring the free exchange of ideas on UCF's campus.
The bias-related-incidents policy is equally dangerous as it is the investigatory wing to enforce the discriminatory harassment policy. Based on the Eleventh Circuit Court’s ruling, it seems inevitable that the bias-related-incidents policy will be struck down as well.
As a UCF graduate, I thoroughly enjoyed my time at the university. It is a top-tier institution that taught me how to form logical, cogent arguments when debating others. That is exceedingly rare to find in modern academic institutions. The overwhelming majority of universities teach students to make arguments based on emotional appeals and “lived experiences” instead of data, facts, and logic.
With that said, there is a war against free speech on UCF’s campus. UCF's professors are the only institutional force defending free speech. During my time in the UCF political science department, the professors were open to healthy debates on political topics. They encouraged in-depth discussions on public policy, media bias, Supreme Court jurisprudence, and the Constitution. This is markedly different from the UCF student population and administration, who oppose free speech. The UCF students generally have authoritarian and censorious tendencies. They have no interest in hearing ideas that contradict their beliefs. UCF student groups routinely call for censoring conservative students, groups, and speakers on campus. Similarly, UCF’s far-left administration opposes free speech on campus for those with views differing from the leftist perspective. This anti-free speech culture ultimately resulted in the administration implementing the discriminatory harassment and bias-related-incidents policies.
The Eleventh Circuit Court’s decision is a victory for UCF students, whether or not the student body recognizes it. UCF is an incredible institution that, unfortunately, has a partisan, far-left administration. The current administration has shown that it values protecting students from potentially offensive speech over protecting their First Amendment rights. I hope the administration will take this opportunity to reflect on the authoritarian nature of its anti-free speech policies and make meaningful strides to protect students’ constitutionally protected right to free speech. Unfortunately, based on the administration’s track record, I have zero faith they will do so.
Garrett Gillespie graduated Magna Cum Laude from the University of Central Florida with a Bachelor of Arts degree in political science.
The Gillespie Report is a weekly news and conservative commentary column written by Garrett Gillespie. Subscribe to receive the newest edition each week for free.