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Speech First, Inc. v. Schlissel - 939 F.3d 756 (6th Cir. 2019)


An association has standing to bring a suit on behalf of its members when (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.


Speech First challenged the University of Michigan’s policy prohibiting harassing and bullying behavior. The Statement of Student Rights and Responsibilities (Statement) contained the University’s policies. Speech First did not challenge the prohibition of harassing or bullying behavior itself. Rather, Speech First argued that one set of the University's definitions of "bullying" and "harassing" behavior was overbroad and vague, sweeping in protected speech. After the present lawsuit was filed, the University removed the definitions and the definitions taken from University policies, leaving only the definitions derived from Michigan state law, which Speech First did not contend are unconstitutional. The district court denied Speech First’s motion, holding that Speech First was not likely to succeed on the merits of its claim against the Response Team because Speech First lacked standing to assert that claim. Speech First appealed.


Did Speech First lack standing to assert the claim, thereby warranting the denial of its motion?




The Court of Appeals for the Sixth Circuit held that Speech First had U.S. Const. art. III standing to challenge a state university's policy prohibiting bullying and harassing behavior and its accompanying bias response team initiative that investigated complaints as violating the First Amendment because the association's members had standing. According to the Court, Speech First’s members faced an objective chill of the exercise of their First Amendment rights as the response team acted by way of implicit threats of punishment and intimidation to quell speech since the team’s referral power and its invitation to meet with students chilled speech as students who violated the policy were subjected to a range of consequences, including expulsion. Moreover, the university's alleged voluntary cessation did not moot the case because suggested changes in the policy had not been formally approved and were only raised after the complaint was filed.

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