Law School Case Brief
Abbott v. Pastides - 900 F.3d 160 (4th Cir. 2018)
The court has recognized two ways in which litigants may establish the requisite ongoing injury when seeking to enjoin government policies alleged to violate the First Amendment, U.S. Const. amend I. First, they may show that they intend to engage in conduct at least arguably protected by the First Amendment but also proscribed by the policy they wish to challenge, and that there is a credible threat that the policy will be enforced against them when they do so. Second, they may refrain from exposing themselves to sanctions under the policy, instead making a sufficient showing of self-censorship - establishing, that is, a chilling effect on their free expression that is objectively reasonable. Either way, a credible threat of enforcement is critical; without one, a putative plaintiff can establish neither a realistic threat of legal sanction if he engages in the speech in question, nor an objectively good reason for refraining from speaking and "self-censoring" instead.
Two student groups at the University of South Carolina sought approval for a "Free Speech Event" to highlight perceived threats to free expression on college campuses. According to the groups, the event they were planning would include visual displays of material that had provoked free-speech controversies at other schools, including a swastika. The University approved, and the Free Speech Event took place on campus without interference. The event did, however, generate complaints from other students, who objected to the displays and accused its sponsors of making sexist and racist statements at the scene. A University official met with Ross Abbott, one of the event's student sponsors, to review the complaints and determine whether an investigation was warranted. A few weeks later, he notified Abbott that there was no cause for investigation and that the matter had been dropped. The result was a First Amendment action against the University, filed by Abbott and the two student groups behind the Free Speech Event. According to Abbott and the other plaintiffs, University officials violated their First Amendment rights when they required Abbott to attend a meeting to discuss complaints about their event. The plaintiffs also mounted a facial challenge to the University's general policy on harassment, arguing that it is unconstitutionally vague and overly broad. The district court rejected both claims and entered summary judgment for the University defendants.
Did the district court err when it ruled that the University did not violate First Amendment rights of plaintiff?
Plaintiffs who organized a free speech event featuring the display of a swastika at a state university failed to establish a First Amendment violation because the university neither prevented plaintiffs from holding their event nor sanctioned them after the fact. The university's minimally intrusive resolution of student complaints about the event did not rise to the level of a First Amendment violation. Because plaintiffs could not show a credible threat that the university would enforce its harassment policy against their speech in the future, they lacked standing under U.S. Const. art. III to pursue their facial attack on the policy. Plaintiffs could not establish a chill on free speech sufficient to sustain their damages claim.
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