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Inquiries into alleged harassment didn’t violate 1st Amendment

 

The University of South Carolina didn’t violate student groups’ First Amendment rights by making inquiries into harassment allegations after a rally for “free speech,” the 4th U.S. Circuit Court of Appeals ruled Aug. 16.

The appeals court unanimously upheld the U.S. District Court for the District of South Carolina’s opinion that because the university approved the event and did not sanction participants afterwards for using inflammatory language and symbols, but merely met with the groups to ask about their version of events, they did not violate the students’ right to free speech.

The matter began in 2015 when two student groups asked USC administrators for approval to hold a “free speech event” to highlight what they saw as threats to free expression on college campuses. Shortly thereafter, event planner Ross Abbott of the College Libertarians at the University of South Carolina received permission to hold the event. Administrators knew that controversial symbols like swastikas would be on display.

The event happened on Nov. 23, 2015, and prompted multiple complaints by faculty and students who objected to the use of the swastika and to a printed brochure that was passed out which contained an ethnic slur directed at Hispanic immigrants.

Despite the controversy, the event was allowed to continue until its scheduled completion. In total, school administrators received three student complaints of violations of the school’s harassment policy in relation to the event. One complaint also alleged that the participating students “engaged rudely with USC students” and made “sexist and racist statements” to them.

As a result, USC’s assistant director of the Office of Equal Opportunity Programs, Carl Wells, contacted Abbott, informing him of the complaints and requiring him to attend a meeting to discuss the accusations. The two met and Wells made clear that no formal charges had been filed against the groups and that they were just meeting to get the student’s perspective on what happened to determine if further action was necessary.

Later that month, Abbott received another letter from Wells telling him that the no further investigation would occur and that the matter was closed.

You’ve got to chill

In February 2016, Abbott and the two student groups filed a civil suit alleging that their right to free speech had been violated by having to attend the meeting with Wells. In addition, they contended that USC’s harassment policy should be ruled invalid for being overly broad and too vague and sought a permanent injunction restraining the policy’s future enforcement.

The university argued that they had not violated the students’ rights and that the students lacked standing to challenge the harassment policy.

U.S. District Judge Margaret Seymour granted summary judgment to the university in 2017, saying that the school’s inquiry into the complaints was permissible as a “narrowly drawn solution that was necessary to serve USC’s compelling interest in protecting students’ rights to be free from discrimination.”

The trial court also agreed the plaintiffs lacked standing to prevent future enforcement of the harassment policy because they didn’t have proof of a credible threat of harm from the university.

The 4th Circuit upheld all of the district court’s findings, saying that the plaintiffs’ claims were highly unusual in that they received permission to hold the public event and were not limited in what they could say, nor sanctioned for it afterwards.

“Typically, claims for retrospective damages relief under the First Amendment allege direct prohibitions or limitations on speech,” Judge Pamela Harris wrote for the court. “It is claims for prospective relief … that sometimes rest on the prospect of a future injury in the form of self-censorship or unconstitutionally chilled speech that ‘falls short of a direct prohibition.’”

Ultimately, the court ruled that because the plaintiffs couldn’t establish objective proof that the meeting deterred them from some specific, intended act of expression, they suffered no actual harm.

“It does not appear that the plaintiffs can establish a past ‘chill’ sufficient to sustain their damages claim,” Harris wrote.

Even assuming that the University’s preliminary inquiry amounted to a cognizable restriction on the students’ speech, Harris said, it was a minimally burdensome process that was narrowly tailored to the state’s interest in maintaining a school environment free from illegal discrimination and harassment.

Threats were ‘purely speculative’

Regarding the challenge to the harassment policy, the 4th Circuit agreed with the district court that the plaintiffs lacked standing because they couldn’t establish proof of past or ongoing injury.

“Because plaintiffs can point to no reason to think they will be subjected to some different and more onerous process not yet experienced or threatened,” Harris said, “their claim to injury by way of threatened ‘process’ is purely speculative and thus insufficient to establish standing.”

Robert Corn-Revere of Davis Wright Tremaine in Washington D.C. represented the plaintiffs. He said his clients are currently considering their legal options.

Henry White, associate general counsel for USC, represented the school, along with Carl Muller of Greenville, South Carolina and Kenneth Woodington of Davidson, Wren & Plyler in Columbia, South Carolina. All declined to comment on the ruling.

However, Wes Hickman, the chief communications officer for USC said that the university supports the court’s ruling.

“We are pleased the 4th Circuit has affirmed the processes we have in place to uphold students’ rights to free speech while maintaining our legal obligation to provide a safe environment and investigate claims of discriminatory or hostile behavior,” Hickman said.

First Amendment attorney Hugh Stevens of Stevens Martin Vaughn & Tadych in Raleigh agreed that the plaintiffs’ claims were meritless, but said that the university was correct in not pursuing the harassment claims.

“In my view, both the complaints against the Free Speech Event and the plaintiffs’ claims against the University were frivolous and should have been summarily rejected,” he said.

The 36-page decision is Abbott v. Pastides (Lawyers Weekly No. 001-140-18). An opinion digest is available online at nclawyersweekly.com.

Follow Matthew Chaney on Twitter @ NCLWChaney


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