Ross Abbott v. Harris Pastides

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 3:16-cv-00538-MBS. [1000350131]. [17-1853]

Appeal: 17-1853

Doc: 50

Filed: 08/16/2018

Pg: 1 of 36

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 17-1853

ROSS ABBOTT; COLLEGE LIBERTARIANS AT THE UNIVERSITY OF SOUTH
CAROLINA; YOUNG AMERICANS FOR LIBERTY AT THE UNIVERSITY OF
SOUTH CAROLINA,
Plaintiffs – Appellants,
v.
HARRIS PASTIDES; DENNIS PRUITT; BOBBY GIST; CARL R. WELLS,
Defendants – Appellees.
----------------------------STUDENTS FOR LIFE OF AMERICA; ACLU OF SOUTH CAROLINA; DKT
LIBERTY PROJECT; INDIVIDUAL RIGHTS FOUNDATION; NATIONAL
COALITION AGAINST CENSORSHIP; REASON FOUNDATION; STUDENT
PRESS LAW CENTER,
Amici Supporting Appellants.

Appeal from the United States District Court for the District of South Carolina, at
Columbia. Margaret B. Seymour, Senior District Judge. (3:16-cv-00538-MBS)

Argued: March 22, 2018

Decided: August 16, 2018

Before MOTZ, DUNCAN, and HARRIS, Circuit Judges.

Affirmed by published opinion. Judge Harris wrote the opinion, in which Judge Motz
and Judge Duncan joined.

Appeal: 17-1853

Doc: 50

Filed: 08/16/2018

Pg: 2 of 36

ARGUED: Robert Corn-Revere, DAVIS WRIGHT TREMAINE LLP, Washington,
D.C., for Appellants. Carl Frederick Muller, CARL F. MULLER, ATTORNEY AT
LAW, PA, Greenville, South Carolina, for Appellees. ON BRIEF: Edward T. Fenno,
FENNO LAW FIRM, LLC, Charleston, South Carolina; Ronald G. London, Lisa B.
Zycherman, DAVIS WRIGHT TREMAINE LLP, Washington, D.C., for Appellants.
William H. Davidson, II, Kenneth P. Woodington, DAVIDSON & LINDEMANN, P.A.,
Columbia, South Carolina, for Appellees. John C. Eastman, Anthony T. Caso, Center for
Constitutional Jurisprudence, CHAPMAN UNIVERSITY FOWLER SCHOOL OF
LAW, Orange, California, for Amicus Students for Life of America. Ryan W. Marth,
Minneapolis, Minnesota, David B. Shemano, ROBINS KAPLAN LLP, Los Angeles,
California, for Amici ACLU of South Carolina, DKT Liberty Project, Individual Rights
Foundation, National Coalition Against Censorship, Reason Foundation, and Student
Press Law Center.

2

Appeal: 17-1853

Doc: 50

Filed: 08/16/2018

Pg: 3 of 36

PAMELA HARRIS, Circuit Judge:
In 2015, 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.
We agree with the district court and affirm on both counts. The University neither
prevented the plaintiffs from holding their Free Speech Event nor sanctioned them after
3

Appeal: 17-1853

Doc: 50

Filed: 08/16/2018

Pg: 4 of 36

the fact. Its prompt and minimally intrusive resolution of subsequent student complaints
does not rise to the level of a First Amendment violation. And because the plaintiffs
cannot show a credible threat that the University will enforce its harassment policy
against their speech in the future, they lack standing to pursue their facial attack on the
policy.

I.
A.
In 2009, the United States Department of Justice (“DOJ”) opened an investigation
into allegations of racial discrimination at the University of South Carolina (“USC” or
“University”). In response, the University hired outside counsel to draft a “Student NonDiscrimination and Non-Harassment Policy.” Pursuant to an agreement between the
University and DOJ, DOJ reviewed and approved the final language of the new
harassment policy, which was formally adopted in 2013 as “STAF 6.24.”
In its introduction, STAF 6.24 sets out the University’s dual commitments to
preventing discrimination and harassment and to upholding “principles of academic
freedom” and free expression. J.A. 90. The policy is designed to achieve both those ends
by fostering “an academic, social and living environment that is free from discrimination
and harassment” and encourages “the open exchange of ideas.” Id. At the outset, STAF
6.24 clarifies that its strictures will extend only to “behavior and speech that is not
constitutionally protected and which limits or denies the rights of students to participate
or benefit in the educational program.” Id.
4

Appeal: 17-1853

Doc: 50

Filed: 08/16/2018

Pg: 5 of 36

Prohibited harassment is defined by STAF 6.24 as a “specific type of illegal
discrimination” consisting of conduct – which may be “written,” “oral,” or “graphic,” as
well as “physical” – directed at students because of a protected characteristic such as
race, religion, national origin, or sex. J.A. 91. Consistent with STAF 6.24’s introduction,
the definition of harassment is limited to conduct that is “sufficiently severe, pervasive,
or persistent so as to interfere with or limit the ability” of the targeted students to
“participate in or benefit from the programs, services, and activities provided by the
University.” Id.; cf. Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 651 (1999)
(describing student-on-student sexual harassment actionable under Title IX as “severe,
pervasive and objectively offensive” conduct that “undermines and detracts from the
victims’ educational experience”). Examples of such “harmful conduct” may include
“objectionable epithets” and “demeaning depictions or treatment,” as well as “threatened
or actual abuse or harm.” J.A. 91. But STAF 6.24 also expressly excludes from the
definition of harassment any use of materials or discussions “for academic purposes
appropriate to the academic context.” Id.
STAF 6.24 goes on to establish a complaint procedure for students. Any student
may file a complaint with the University’s Office of Equal Opportunity Programs against
another student “believed to have violated this policy or otherwise engaged in
discriminatory or harassing behavior.” J.A. 92. The Office then will designate a staff
member to handle the complaint and “ensure that [it] is fairly and expeditiously
investigated and if necessary, that appropriate sanctions are assessed.”

5

J.A. 93.

Appeal: 17-1853

Doc: 50

Filed: 08/16/2018

Pg: 6 of 36

Anonymous complaints will be handled by interviewing any identified witnesses and
alleged offenders. Id.
B.
This case began when Ross Abbott, on behalf of two student groups – the College
Libertarians and Young Americans for Liberty – sought approval to hold a “Free Speech
Event” at the University of South Carolina.

Abbott, then president of the College

Libertarians, met with Kim McMahon, USC’s Director of Campus Life, and described an
event intended to “draw attention to the various threats to free speech on campuses.” J.A.
152.

As part of that effort, Abbott explained, the groups planned to “create mock

versions of several symbols and speeches that have been censored in the past,” including
an “Indian good luck symbol that resembles a swastika.” J.A. 152. McMahon approved
the Free Speech Event (the “Event”) as described. In her email to Abbott, McMahon said
that she saw “no controversy in educating [the] campus about what is happening in the
world,” and that she hoped the Event would be “a chance to learn and grow (and even be
a bit uncomfortable), not further any intolerance, censorship or acts of incivility.” J.A.
151.
The Event proceeded as planned on November 23, 2015, in front of USC’s Russell
House Union Building, as the sponsoring students had requested. Posters at the Event
included one depicting a large red swastika and another featuring the word “wetback” in
outsized print. J.A. 69. Abbott and the other students distributed handouts referring to
what they viewed as incidents of censorship at USC and on other campuses, and
explaining their displays as examples of such incidents. The Event lasted for several
6

Appeal: 17-1853

Doc: 50

Filed: 08/16/2018

Pg: 7 of 36

hours, during which several complaints from faculty and other USC community members
were forwarded to McMahon by email. McMahon’s response was to defend the Event:
“This is free speech and . . . if they are being respectful and trying to help learn and create
dialogue then I am not sure how to help those who are uncomfortable[.]” J.A. 154.
McMahon clarified, however, that because she was not at the scene, she could not
“provide context” or confirm that the Event was being conducted in the manner she had
approved. J.A. 156. The Event concluded without any intervention from University
officials.
Almost immediately, the University’s Office of Equal Opportunity Programs
(“EOP Office”) received three written complaints from students about the Event, one of
which named Ross Abbott as an “involved part[y],” J.A. 67, and two of which appear to
have been submitted anonymously. The complaints objected to the display of “offensive
symbols and racial slurs,” id. – in particular, the swastika and the “wetback” sign. See
J.A. 67–76. One student also complained about the sponsoring students’ behavior on the
scene, alleging that they “engag[ed] rudely with USC students” and made “sexist and
racist statements” to them. J.A. 72. According to the complaining students, the Event
and the associated conduct constituted discrimination or harassment against protected
groups.
The next day, on November 24, 2015, Carl Wells, USC’s Assistant Director of the
EOP Office and Deputy Title IX Coordinator, sent Abbott a letter informing him of the
complaints. “Please contact this office,” the letter directed, “within the next five (5)
working days . . . to arrange an appointment to fully discuss the charges as alleged.” J.A.
7

Appeal: 17-1853

Doc: 50

Filed: 08/16/2018

Pg: 8 of 36

66. If the matter could not be resolved otherwise, Wells told Abbott, then “we shall
move to investigate the complaint,” culminating with a recommendation to the Provost
and President of the University. Id. In the meantime, Abbott should not contact the
named complainant, or discuss the complaints with any member of the University
community. Though the letter purported to attach a “Notice of Charge” in addition to
copies of the complaints about the Event, only the complaints were enclosed. Use of the
term “Notice of Charge,” the University later said, was a clerical error. 1
Approximately two weeks later, on December 8, 2015, Wells met with Abbott and
Michael Kriete, the president of Young Americans for Liberty, to discuss the complaints.
Because Abbott recorded the meeting (with Wells’s apparent consent), there is no dispute
as to what transpired.

Wells assured the students that notwithstanding the letter’s

reference to a “Notice of Charge,” nobody had been charged with a violation of STAF
6.24. The meeting, Wells explained, was a standard “practice of the University” in
response to complaints, J.A. 177, intended simply to gather information – the “who,
what, when, whys, and hows” of the Event. J.A. 158. Indeed, the University had yet to
determine whether it even would investigate the incident:
We are in pre-complaint mode . . . because we don’t have enough
information right now, we’re trying to assess whether or not what was
presented to us by members of this community actually rise to a level of
something that would be a complaint or whether we’re going to do an
investigation or not. So, again, we are in pre-investigation mode.
1

The term “Notice of Charge” appears in a different USC policy, “EOP 1.01,”
concerning harassment complaints against non-student University personnel. See J.A. 91
n.2; J.A. 81. STAF 6.24, by contrast, which governs complaints against students, makes
no reference to a “Notice of Charge.”
8

Appeal: 17-1853

Doc: 50

Filed: 08/16/2018

Pg: 9 of 36

J.A. 159. Wells reiterated the point on several occasions. Near the end of the meeting,
for instance, he told Abbott: “I’m going to emphasize to you again, we are at the point in
our exploration to make sure [we] understand what happened here and to decide if this is
something we respond to or not. The decision to respond or not respond has not been
made. We’re just trying to understand.” J.A. 181; see also J.A. 185 (“the next step is for
us to determine whether we will open an investigation or not”).
For his part, Abbott explained that the Event was held to raise awareness about
campus free-speech issues and emphasized that he had prior authorization for the
displays. Abbott also expressed discomfort at being required to attend the meeting,
telling Wells: “I . . . do not like that I have to be here for this meeting,” and that “the
University is not upholding its obligation to respect my free-speech rights by requiring
me to be here.” J.A. 179, 180. The meeting lasted for approximately 30 to 45 minutes.
On December 23, 2015, approximately one month after the Free Speech Event and
two weeks after the meeting, Wells sent Abbott another letter. The EOP Office, Wells
informed Abbott, had “found no cause for investigating” the complaints related to the
Free Speech Event, and would “not move any further in regard to this matter.” J.A. 196.
C.
Two months later, in February 2016, Abbott, the College Libertarians, and Young
Americans for Liberty (together, the “plaintiffs” 2) filed a § 1983 suit against multiple

2

Although Abbott has since graduated from USC, the parties agree that he retains
standing as a plaintiff to pursue retrospective relief in the form of damages under § 1983.
(Continued)
9

Appeal: 17-1853

Doc: 50

Filed: 08/16/2018

Pg: 10 of 36

USC officials, including Carl Wells, alleging violations of their First Amendment rights.
In their first, “as-applied” claim, they argued that by “investigating” Abbott in connection
with the Free Speech Event, University officials impermissibly chilled their free
expression, entitling them to damages. J.A. 30–31. In a second count, the plaintiffs
alleged that the University’s harassment policy on its face violates the First Amendment
because it is overly broad and too vague to be capable of precise definition or application,
and sought a permanent injunction restraining its future enforcement. 3
Both parties moved for summary judgment. With respect to the plaintiffs’ asapplied claim, the University defendants, sued for damages in their personal capacity,
argued that they had not violated the First Amendment as a matter of law and that
qualified immunity protects them from damages liability.

And, the defendants

contended, the plaintiffs have no standing to pursue their facial challenge to STAF 6.24,
which in any event is fully consistent with the First Amendment.
The district court granted summary judgment to the University defendants. Abbott
v. Pastides, 263 F. Supp. 3d 565 (D.S.C. 2017). The court disposed of the as-applied

And the standing of the College Libertarians and Young Americans for Liberty to seek
relief as organizational plaintiffs remains unaffected by Abbott’s graduation from
college. See White Tail Park, Inc. v. Stroube, 413 F.3d 451, 458 (4th Cir. 2005).
3

Two additional claims presented to the district court no longer are at issue in this
case. In their complaint, the plaintiffs also raised First Amendment objections to a
University statement of ideals, termed the Carolinian Creed, and University policies
designating “Free Speech Zones” on campus. After the suit was filed, however, USC
revised those policies, and the district court dismissed the challenges as moot. Abbott v.
Pastides, 263 F. Supp. 3d 565, 580–82 (D.S.C. 2017). The plaintiffs do not challenge
that ruling on appeal.
10

Appeal: 17-1853

Doc: 50

Filed: 08/16/2018

Pg: 11 of 36

challenge on the merits, holding as a matter of law that the University’s inquiry into the
Free Speech Event did not violate the First Amendment.

Id. at 578.

The First

Amendment, the court recognized at the outset, applies with equal force on college
campuses as in the wider community. Id. at 575 (quoting Healy v. James, 408 U.S. 169,
180 (1972)). At the same time, the court continued, First Amendment rights are not
absolute, and content-based prohibitions on speech will be upheld where they are
necessary to serve a compelling governmental interest and narrowly drawn to achieve
that end. Id. at 575–76 (citing Simon & Schuster, Inc. v. Members of N.Y. State Crime
Victims Bd., 502 U.S. 105, 118 (1991)).
Against that backdrop, the district court went on to analyze the plaintiffs’ claim
that University officials violated the First Amendment by requiring Abbott to attend a
meeting regarding the Free Speech Event. Because the University had not taken any
action against the Event or its sponsors, the first question was whether the plaintiffs’
speech had been restricted at all. The court ruled that it had, crediting the plaintiffs’
claim that they had experienced a First Amendment injury in the form of “selfcensorship,” or a “chilling effect” on their speech. Id. at 576–77. Once Abbott received
Wells’s letter, the court reasoned, with its reference to a “Notice of Charge,” the plaintiffs
reasonably could have feared they were subject to discipline, and self-censored protected
speech while awaiting notice regarding the status of the complaints. And that notice did
not come until roughly two weeks later, when it became clear at the meeting with Wells
that in fact there were no charges against any student, or perhaps until roughly two weeks

11

Appeal: 17-1853

Doc: 50

Filed: 08/16/2018

Pg: 12 of 36

after that, when Wells notified Abbott by letter that the University would not be
conducting an investigation or further pursuing the matter. Id. at 577 & n.4.
Nevertheless, the court held, this temporary chill on the plaintiffs’ speech did not
violate the First Amendment. Applying the strict-scrutiny standard that governs contentbased speech restrictions, the court concluded that the University’s inquiry into the
student 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.” Id. at 578. As the court explained:
USC knew of the content of the Free Speech Event, approved the event,
and ultimately determined that the event was an acceptable exercise of
Plaintiffs’ First Amendment rights. USC never attempted to silence
Plaintiffs’ speech, sanction Plaintiffs for their speech, or prevent students
from engaging in similar speech in the future. Instead, Defendants chose a
narrow approach to addressing the rights of all students on campus: those
who participated in the event and those who felt discriminated by it.
Id.
As to the facial challenge to STAF 6.24, the district court agreed with the
University defendants that the plaintiffs lacked standing to seek an injunction against the
policy’s future enforcement. Plaintiffs seeking prospective relief against ongoing or
imminent First Amendment violations, as opposed to damages for past First Amendment
injuries, may not rely on prior harms for standing, the court explained. Instead, there
must be a non-speculative claim of “future injury,” usually in the form of a “credible
threat” that the challenged law will be enforced against the putative plaintiffs. Id. at 578–
79. Here, the court found, the University’s resolution of the complaints regarding the
Free Speech Event should have satisfied the plaintiffs that no similar events they planned
12

Appeal: 17-1853

Doc: 50

Filed: 08/16/2018

Pg: 13 of 36

to host would “constitute speech regulated by the harassment policy.”

Id. at 579.

Moreover, the court reasoned, the plaintiffs had presented no evidence of actual or
threatened use of STAF 6.24 to silence the kind of speech in which they wished to
engage, and the policy’s own terms – which specifically exclude “academic speech” from
its ambit – made it clear that the policy “would not be applied to the speech in which
Plaintiffs or similarly situated students intend to participate.” Id. at 580. Accordingly,
the court concluded, the plaintiffs were without standing to mount their facial challenge
to STAF 6.24.
This timely appeal followed.

II.
We begin with the plaintiffs’ as-applied challenge to the University inquiry into
student complaints about their Event. As the district court recognized, the University
defendants 4 are entitled to qualified immunity as to damages liability on this claim unless
the plaintiffs can establish both (a) the violation of a constitutional right, and (b) that the
right was “clearly established” at the time of the violation. Abbott, 263 F. Supp. 3d at
575; see Pearson v. Callahan, 555 U.S. 223, 232 (2009). The district court resolved the
claim under the first prong of this analysis, holding as a matter of law that there was no
4

In this count of their complaint, the plaintiffs sought damages not only from
Wells, but also from his supervisor, Bobby Gist. Before the plaintiffs had the opportunity
to develop facts concerning Gist’s potential role in the matter, the district court stayed
discovery and ruled on the pending summary judgment motions. Accordingly, although
the plaintiffs make no specific allegations as to Gist’s conduct, we, like the district court,
consider the two defendants together.
13

Appeal: 17-1853

Doc: 50

Filed: 08/16/2018

First Amendment violation.

Pg: 14 of 36

Abbott, 263 F. Supp. 3d at 578.

We review that

determination de novo, see Estate of Armstrong ex rel. Armstrong v. Vill. of Pinehurst,
810 F.3d 892, 895 (4th Cir. 2016), and we agree.
This is an unusual First Amendment claim. University officials approved the
plaintiffs’ Free Speech Event, knowing that it would include displays of a swastika and
other controversial material; allowed the plaintiffs to hold their Event in the precise
campus location they requested; did nothing to interfere with the Event as it transpired;
and imposed no sanction on the plaintiffs after the fact, notwithstanding student
complaints. Cf., e.g., Rock for Life-UMBC v. Hrabowski, 594 F. Supp. 2d 598, 602–03
(D. Md. 2009), aff’d, 411 F. App’x 541 (4th Cir. 2010) (describing First Amendment
challenge to university denial of preferred location for campus display); IOTA XI Chapter
of Sigma Chi Fraternity v. George Mason Univ., 993 F.2d 386, 388–89 (4th Cir. 1993)
(sustaining First Amendment challenge to university sanctions on fraternity speech,
including suspension of fraternity activities). As a result, the plaintiffs are left to argue
that the very fact of a University inquiry into those complaints – and, in particular, the
requirement that Abbott meet with Wells to discuss the complaints and the Event –
violated their First Amendment rights. See Abbott, 263 F. Supp. 3d at 575 (describing
plaintiffs’ claim).
In support of that claim, the plaintiffs advance two arguments. First, they contend
that the inquiry “chilled” their exercise of protected speech rights, because they
reasonably feared disciplinary action if they sponsored other events similar to the Free
Speech Event. And second, in operating as a speech restriction subject to strict scrutiny,
14

Appeal: 17-1853

Doc: 50

Filed: 08/16/2018

Pg: 15 of 36

the inquiry violated the First Amendment because it was not the least restrictive means of
handling the student complaints. We address those arguments in turn.
A.
We start with the plaintiffs’ contention that their speech was restricted for First
Amendment purposes when the University “chilled” the exercise of their right to host oncampus speech events, entitling them to damages.

This, too, is an unusual First

Amendment argument. Typically, claims for retrospective damages relief under the First
Amendment allege direct prohibitions or limitations on speech; it is claims for
prospective relief, such as injunctions, that sometimes rest on the prospect of a future
injury in the form of self-censorship or unconstitutionally chilled speech that “fall[s]
short of a direct prohibition.” See Laird v. Tatum, 408 U.S. 1, 11–14 (1972). Here, the
plaintiffs are using the concept of constitutional chill differently, to establish a past
restriction or infringement on protected speech that triggers strict scrutiny under the First
Amendment. See Abbott, 263 F. Supp. 3d at 577.
We have recognized a similar claim in at least one published opinion. See Reyes
v. City of Lynchburg, 300 F.3d 449, 453, 455 n.8 (4th Cir. 2002) (adjudicating claim that
plaintiff is entitled to damages under § 1983 for a past period during which he alleged his
First Amendment rights were chilled); see also Rock for Life-UMBC, 411 F. App’x at 549
(same). But we have made clear, as the district court recognized, that such a chilling
effect amounts to a cognizable First Amendment injury only if it is “objectively
reasonable” – that is, if the challenged government action is “likely to deter a person of
ordinary firmness from the exercise of First Amendment rights.” See Abbott, 263 F.
15

Appeal: 17-1853

Doc: 50

Filed: 08/16/2018

Pg: 16 of 36

Supp. 3d at 576 (quoting Benham v. City of Charlotte, 635 F.3d 129, 135 (4th Cir.
2011)). And we have indicated that when damages are sought for a prior period of
unconstitutional chill, the plaintiff must establish that he was deterred from some
specific, intended act of expression. See Reyes, 300 F.3d at 455 n.8.
Here, the plaintiffs allege that once Abbott received Wells’s November 24 letter
about student complaints arising from their Free Speech Event – attaching copies of the
complaints, referring to a “Notice of Charge,” and instructing Abbott to attend a meeting
and to refrain from otherwise discussing the matter – they reasonably believed, as would
any student of “ordinary firmness,” that they might be subjected to discipline if they
engaged in similar speech activities. As a result, they say, they “planned to cancel [an]
annual Marijuana Legalization Rally,” typically held in April, and otherwise “avoided
putting on any public events at USC,” or, if they did, “hesita[ted] to engage with
students” on the scene. J.A. 562–63, 570. According to the plaintiffs, the period during
which they were chilled from fully exercising their First Amendment rights extended
from the date of Wells’s letter until the day on which they filed this suit, February 23,
2016, at which point they again felt “comfortable” engaging in speech activities similar to
the Free Speech Event. J.A. 563.
The district court rejected this claim as to the period of time after Abbott’s
December 8 meeting with Wells or, at the latest, the December 23 letter informing Abbott
that there would be no investigation or further action with respect to the Free Speech
Event, finding that any reasonable fear of discipline “should have been assuaged” by
then. Abbott, 263 F. Supp. 3d at 577 & n.4. We agree. By the time Abbott received
16

Appeal: 17-1853

Doc: 50

Filed: 08/16/2018

Pg: 17 of 36

Wells’s December 23 letter, it had become clear that in fact no student had been charged
with a violation of STAF 6.24; that the December 8 meeting was standard practice in
response to student complaints, and did not reflect any prior determination by the
University that the complaints should be investigated; and, finally, that the University had
concluded that the display of a swastika and a “wetback” sign, in the context of the
plaintiffs’ Free Speech Event, did not warrant an investigation under STAF 6.24, let
alone the imposition of sanctions. At that point, a student of “ordinary firmness” would
have had no reason to refrain from sponsoring, say, a Marijuana Legalization Rally, or to
worry that speaking in favor of capitalism, see J.A. 570 (alleging hesitation regarding
pro-capitalism rally and speech), might lead to punishment.
The plaintiffs rely for their chilling-effect claim on Cooksey v. Futrell, 721 F.3d
226 (4th Cir. 2013), but that case only illustrates how far short they fall in their effort to
show a “non-speculative and objectively reasonable chilling effect” sufficient to make
out a First Amendment injury. Id. at 236. In Cooksey, we did indeed find that a state
regulatory board had chilled the plaintiff’s speech, taking actions that would be “likely to
deter a person of ordinary firmness from the exercise of First Amendment rights.” Id. at
236 (internal quotation marks omitted). But in that case, the board: informed the
plaintiff that the speech on his website was “under investigation”; then “instructed” him
to make changes to that speech and to refrain from making particular statements; and
then, when he did so, told him that it would continue to monitor his speech to ensure that
it remained in compliance with regulatory requirements. Id. at 231–32. Had this case
played out differently – had the University informed Abbott that it had determined that an
17

Appeal: 17-1853

Doc: 50

Filed: 08/16/2018

Pg: 18 of 36

investigation of the Free Speech Event was warranted; and then instructed him not to
display swastikas or “wetback” signs or other controversial material at future events; and
then warned him that it would scrutinize future events to ensure that they conformed to
STAF 6.24 – then, we agree, a student of “ordinary firmness” might well be deterred
from engaging in similar speech activities. Instead, of course, after hearing from Abbott,
the University did the opposite, telling the plaintiffs that it had decided against opening
an investigation or taking any further action in connection with the Free Speech Event.
Under those circumstances, we do not believe that students of “ordinary firmness” would
be deterred from sponsoring similar events.
Whether the plaintiffs experienced a speech restriction in the form of a chilling
effect before that process ran its course – that is, during the time after the November 24
letter informing Abbott of the complaints but before the December 23 letter announcing
that no investigation would be conducted – is a more difficult question. The district court
concluded that the plaintiffs’ speech was chilled during that initial period, reasoning that
“a student of ‘ordinary firmness’ may have self-censored his future speech while awaiting
notice from Wells on the status of the official student complaints.” See Abbott, 263 F.
Supp. 3d at 577.
Like the district court, we do not doubt that a college student reasonably might be
alarmed and thus deterred by an official letter from a University authority referring to an
attached “Notice of Charge” (even if no such notice actually is attached), raising the
prospect of an investigation and ultimate recommendation to the University Provost and
President, directing his attendance at a meeting, and prohibiting him from discussing the
18

Appeal: 17-1853

Doc: 50

Filed: 08/16/2018

Pg: 19 of 36

matter with others. See id. But our case law suggests that to recover damages, as
plaintiffs seek here, it is not enough to establish that a reasonable person could have
engaged in self-censorship as a result of the University defendant’s actions. Instead, the
plaintiffs must show that the defendants actually caused the asserted First Amendment
harm – here, by alleging that STAF 6.24 deterred some specific intended act of
expression protected by the First Amendment. See Reyes, 300 F.3d at 455 n.8 (rejecting
claim for damages based on past chill because plaintiff failed to allege that challenged
city ordinance deterred him from engaging in any specific intended expression). But as
the University defendants point out (and plaintiffs do not dispute), neither the College
Libertarians nor Young Americans for Liberty has identified any speech event they had
planned or wished to sponsor during the brief time period in question – perhaps because,
as the plaintiffs explain, the weeks between November 24 (the initial letter to Abbott) and
December 23 (the final letter to Abbott) overlap with the Thanksgiving holiday, final
exams, and the start of winter vacation. Accordingly, it does not appear that the plaintiffs
can establish a past “chill” sufficient to sustain their damages claim for the pre-December
23 period any more than they can for the period after December 23. 5

5

Nor, we note, can the plaintiffs premise their damages claim on some other
alleged constitutional deprivation – a possibility we left open in Reyes. Here, as in Reyes,
the plaintiffs make no specific allegation that officials acted in bad faith, or that Abbott
was deprived of due process protections. See Reyes v. City of Lynchburg, 300 F.3d 449,
455–57 & n.8 (4th Cir. 2002). And to the extent the plaintiffs may have sought other
forms of relief on their as-applied challenge before the district court, see Abbott, 263 F.
Supp. 3d at 573 (describing relief sought by plaintiffs on all claims), they were addressed
neither by the district court nor by the plaintiffs in their brief before this court, and so we
(Continued)
19

Appeal: 17-1853

Doc: 50

Filed: 08/16/2018

Pg: 20 of 36

B.
Even if we were to assume, however, that the University’s preliminary inquiry into
complaints about the Free Speech Event amounted to a cognizable restriction on the
plaintiffs’ speech for some brief period of time, there would remain the question whether
that restriction violated the First Amendment. And here again, we agree with the district
court: Any such restriction survives review under the First Amendment. See Abbott, 263
F. Supp. 3d at 577–78.
We emphasize that this question, as framed by the parties, is a narrow one. The
parties agree, as did the district court, that to the extent the University’s procedure for
handling student complaints led to reasonable self-censorship by the plaintiffs, it is
subject to strict scrutiny under the First Amendment, and can survive review only if it is
“necessary to serve a compelling state interest and . . . narrowly drawn to achieve that
end.” See id. at 577; see also, e.g., Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S.
221, 231 (1987). 6 And neither party disputes that the University has a compelling

need not consider them here. See Belk, Inc. v. Meyer Corp., U.S., 679 F.3d 146, 153
nn.4, 6 (4th Cir. 2012) (holding that claims not addressed in brief on appeal are waived).
6

Strict scrutiny, of course, applies only to content-based policies that regulate
speech “because of the topic discussed or the idea or message expressed.” Reed v. Town
of Gilbert, 135 S. Ct. 2218, 2227 (2015). Applying that standard to all governmental
efforts to address complaints that are based on some form of expressive activity –
analyzing, for instance, whether a police officer has used narrowly tailored means in
responding to a complaint that a picketer is trespassing on private property – might have
implications that extend well beyond this appeal. Cf. Gibson v. Fla. Legislative
Investigation Comm., 372 U.S. 539, 546 (1963) (holding that “an investigation which
intrudes into the area of constitutionally protected rights of speech” is valid so long as
(Continued)
20

Appeal: 17-1853

Doc: 50

Filed: 08/16/2018

Pg: 21 of 36

interest in maintaining a school environment free from illegal discrimination and
harassment. See Abbott, 263 F. Supp. 3d at 577 (citing Sigma Chi Fraternity, 993 F.2d at
393). The only issue the parties contest, and the only issue we have cause to consider, is
whether the University’s inquiry into student complaints arising from the Free Speech
Event was narrowly tailored to that end.
The gist of the plaintiffs’ claim is that the University’s response was neither
“necessary” nor “narrowly drawn” to serve the identified state interest, because it would
have been possible to handle student complaints about the Free Speech Event without
burdening or involving the plaintiffs at all. First, the plaintiffs argue, the University
could and should have “employ[ed] some means of weeding out” complaints that are
frivolous or insubstantial “on their face.”

Appellants’ Br. at 42 (quoting Susan B.

Anthony List v. Driehaus, 814 F.3d 466, 474–75 (6th Cir. 2016)).

Of course, the

University did employ “some means” of screening student complaints:

a brief and

decidedly non-adversarial meeting with Abbott, followed by a decision to take no further
action. And as a practical matter, it simply is not the case that the complaints here could
be deemed frivolous “on their face.” Students objected not only to the visual displays at
the Free Speech Event, but also to allegedly harassing behavior and speech – “sexist and
racist statements” – at the scene. J.A. 72. Neither the University’s prior approval of the
Free Speech Event nor anything in the complaints themselves would have allowed the

there is a “substantial relation” between the information sought and a compelling state
interest). Again, we emphasize that given the posture of this case, we have no need to
decide the issue.
21

Appeal: 17-1853

Doc: 50

Filed: 08/16/2018

Pg: 22 of 36

University to dismiss those allegations on their face.

As Director of Campus Life

McMahon, who approved and defended the Free Speech Event, explained, “As I am not
there [at the Event] I can’t provide context and [tell] if [the] group is doing what their
event said it would.” J.A. 156.
The plaintiffs insist that even if there was an “angry exchange” during which
student sponsors of the Free Speech Event used “racial or sexual terms,” it still would be
clear that STAF 6.24 had not been violated, obviating any need for further inquiry.
Appellants’ Reply Br. at 23 n.21. But the facts matter in a situation like that, and we do
not agree that school officials confronted with harassment allegations are required to
resolve them in the abstract. Nor does the First Amendment require that they assume no
actionable harassment or discrimination without first seeking relevant information. As
this court has made clear, universities have obligations not only to protect their students’
free expression, but also to protect their students. See S.B. ex rel. A.L. v. Bd. of Educ. of
Harford Cty., 819 F.3d 69, 76–77 (4th Cir. 2016) (“[A] school may . . . be held liable
under Title IX . . . for what is effectively an official decision by the school not to remedy
student-on-student harassment.”) (internal quotation marks and alterations omitted).
The Sixth Circuit’s decision in Susan B. Anthony List, on which the plaintiffs
chiefly rely for their “screening process” claim, is not to the contrary. There, the court
held that a state law criminalizing false statements about political candidates violated the
First Amendment, in part because a candidate in the middle of a campaign could be
subjected to a “full adjudicatory hearing” – a public and adversarial probable cause
hearing that might appear to voters as an official sanction – based only on a facially
22

Appeal: 17-1853

Doc: 50

Filed: 08/16/2018

Pg: 23 of 36

meritless complaint by an opposing candidate, timed to achieve “maximum disruption.”
814 F.3d at 474–75. We do not think that Wells’s single and decidedly non-adversarial
meeting with Abbott can be compared to the full adjudicatory process at issue in Susan B.
Anthony List. Nor, as we have explained, was it possible to dismiss the complaints here
as frivolous on their face. Cf. id. (hypothesizing complaint that could be dismissed on its
face because it objected only to protected statement of opinion).
The plaintiffs have a second, fallback argument: Even if some further inquiry into
the complaints was justified, they contend, the University defendants violated the First
Amendment because they used the wrong form of inquiry – or, more specifically,
because they made inquiries of the wrong person. According to the plaintiffs, University
officials were required to speak first with the complaining students, or perhaps with
witnesses as part of an “independent investigation,” and only then, if indicated, contact
Abbott to hear his side of the story. Appellants’ Br. at 43–45. But allowing a student
accused of a campus infraction an early chance to respond generally is considered a
feature of due process, not a bug. See Goss v. Lopez, 419 U.S. 566, 581 (1975) (holding
that students are entitled under the Due Process Clause to an opportunity to present their
version of events before being suspended).

Nor is it obvious that the single and

confidential meeting Abbott attended with Wells was any more “restrictive” or
burdensome than the independent investigation he suggests in its stead, which would
have had University officials out in the community searching for fact witnesses to the
verbal harassment alleged in the complaints, with attendant risks to the reputations of
Abbott and his fellow event sponsors.

And, of course, there are obvious practical
23

Appeal: 17-1853

Doc: 50

Filed: 08/16/2018

Pg: 24 of 36

difficulties in focusing an inquiry on the complainant as opposed to the alleged
perpetrator when, as here, at least some of the complaints are anonymous. Indeed, STAF
6.24 specifically contemplates this problem, making it standard procedure to interview
alleged offenders in cases involving anonymous complaints.
It bears repeating that the University here did not seek to advance its end of
maintaining a campus environment free of illegal discrimination and harassment through
the kinds of broad steps that most commonly lead to First Amendment litigation. As the
district court observed, it did nothing to interfere with the plaintiffs’ Free Speech Event,
featuring the display of a swastika and a “wetback” sign, and it did nothing to sanction
that speech after the fact. Abbott, 263 F. Supp. 3d at 578; cf., e.g., Sigma Chi Fraternity,
993 F.2d at 393 (sustaining First Amendment challenge to sanctions on fraternity “ugly
woman contest”). Instead, in the face of student complaints, University officials met with
Abbott so that he could give his account of the facts – “the who, what, when, whys, and
hows,” J.A. 158 – and then credited that account in its entirety, declining to conduct an
investigation or take any further action. Under the circumstances, we agree with the
district court that this minimally burdensome process was narrowly tailored to the
relevant state interest and so survives strict scrutiny. See Abbott, 263 F. Supp. 3d at 578. 7

7

In addition to their main objection to the way in which the University conducted
its inquiry – that the University involved them at all – the plaintiffs also fault the
University for, inter alia, not expediting its process to avoid a two-week waiting period
between the meeting and Wells’s second letter; including in its initial letter to Abbott
instructions not to contact the named complainant or discuss the matter with others on
campus; and not “joining in the University of Chicago’s Principles of Free Expression.”
Appellants’ Br. at 45–46. At the outset, we note that the question under strict scrutiny is
(Continued)
24

Appeal: 17-1853

Doc: 50

Filed: 08/16/2018

Pg: 25 of 36

C.
For the reasons laid out above, we agree with the district court that the plaintiffs
have failed as a matter of law to establish that the University defendants violated their
First Amendment rights in connection with the inquiry into the Free Speech Event.
Abbott, 263 F. Supp. 3d at 578. We note, however, that even if this were not the case, the
defendants would be entitled to summary judgment on qualified immunity grounds.
As the district court explained, government officials like the University defendants
are “protected under the doctrine of qualified immunity from ‘liability for civil damages
insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.’” Id. at 575 (quoting Pearson,
555 U.S. at 231). Unless “existing precedent” has “placed the statutory or constitutional
question beyond debate,” the defendants may not be held liable. Reichle v. Howards, 566
U.S. 658, 664 (2012). And even assuming, arguendo, that it were possible to find that
the University’s response to student complaints arising out of the Free Speech Event
transgressed some First Amendment limit, the plaintiffs are unable to identify any
precedent – and we have found none – that would put that result “beyond debate.”

whether the complaint procedures utilized by the University are narrowly drawn to
advance the state interest, not the plaintiffs’ interests. And to the extent the University’s
process imposes certain incidental burdens – for instance, short waiting periods or
directions to respect the privacy of complainants – that is not enough to render it
insufficiently tailored to the state interest. Strict scrutiny requires procedures that are
“narrowly tailored, not . . . perfectly tailored.” Williams-Yulee v. Florida Bar, 135 S. Ct.
1656, 1671 (2015) (internal quotation marks omitted).

25

Appeal: 17-1853

Doc: 50

Filed: 08/16/2018

Pg: 26 of 36

As we and other courts have recognized, First Amendment parameters may be
especially difficult to discern in the school context. See Morgan v. Swanson, 755 F.3d
757, 760 (5th Cir. 2014) (observing that “educators are rarely denied immunity from
liability arising out of First-Amendment disputes”); see also Doninger v. Niehoff, 642
F.3d 334, 351 (2d Cir. 2011) (school officials entitled to qualified immunity for
disciplining student based on off-campus speech); Mellen v. Bunting, 327 F.3d 355, 376
(4th Cir. 2003) (college official entitled to qualified immunity for holding “supper
prayer” that violated Establishment Clause). And as we have noted, the plaintiffs’ claim
for damages relief in connection with a speech event that the University approved and for
which they were never sanctioned presents some especially novel questions.

At a

minimum, the University defendants were not on clear notice that their response to
student complaints regarding the Free Speech Event violated the First Amendment, and
for that reason alone they are entitled to qualified immunity.

III.
We turn now to the plaintiffs’ facial challenge to STAF 6.24. In addition to
damages for the University’s past response to the Free Speech Event, the plaintiffs also
sought an injunction against future enforcement of STAF 6.24, arguing that the
University’s policy is on its face unconstitutionally broad and impermissibly vague. The
use of undefined terms like “objectionable epithets” and “demeaning depictions” as
examples of conduct that may amount to harassment, the plaintiffs contend, would allow
the University to punish multiple forms of protected First Amendment expression. Nor,
26

Appeal: 17-1853

Doc: 50

Filed: 08/16/2018

Pg: 27 of 36

according to the plaintiffs, is the policy saved by the caveat that it will apply only to
conduct “sufficiently severe, pervasive or persistent” to deprive its targets of full and
equal access to educational benefits, J.A. 91 (emphasis added), because the Court in
Davis, in discussing the circumstances under which schools may be held liable for
student-on-student harassment, referred to conduct that is so “severe, pervasive, and
objectively offensive” that it bars equal access, see 526 U.S. at 651 (emphasis added).
The University defendants, for their part, vigorously defend STAF 6.24 as modeled on
the essence of the Davis standard as we have described it in our own case law, see
Jennings v. Univ. of N.C., 482 F.3d 686, 695 (4th Cir. 2007) (en banc) (holding that
plaintiff establishes Title IX claim by showing harassment that is “sufficiently severe or
pervasive to create a hostile (or abusive) environment”), and further narrowed by express
exceptions for speech in “academic” contexts, J.A. 91, or otherwise protected under the
First Amendment.
The district court did not reach the merits of this dispute, finding instead that the
plaintiffs lacked standing to pursue prospective injunctive relief because they could
establish no ongoing or future injury. We review that finding de novo, Kenny v. Wilson,
885 F.3d 280, 287 (4th Cir. 2018), and affirm. 8

8

Although the district court clearly resolved the plaintiffs’ facial challenge on
standing grounds, see Abbott, 263 F. Supp. 3d at 580, its only announced disposition was
the grant of summary judgment to the University defendants, see J.A. 596. Ordinarily, of
course, a lack of subject-matter jurisdiction will lead to dismissal under Rule 12(b)(1),
rather than summary judgment under Rule 56(c), which suggests a decision on the merits.
See Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995); 5B Charles A. Wright &
Arthur R. Miller, Federal Practice and Procedure § 1350 & n.33 (3d ed. 2018) (collecting
(Continued)
27

Appeal: 17-1853

Doc: 50

Filed: 08/16/2018

Pg: 28 of 36

As the district court explained, a plaintiff seeking prospective injunctive relief
“may not rely on prior harm” to establish Article III standing. Abbott, 263 F. Supp. 3d at
578.

“Past exposure to illegal conduct does not in itself show a present case or

controversy regarding injunctive relief . . . if unaccompanied by any continuing, present
adverse effects.”

Id. (quoting O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974)).

Because the plaintiffs are pursuing prospective injunctive relief in connection with their
facial challenge to STAF 6.24, they may not rest on the University’s past conduct, but
must instead “establish an ongoing or future injury in fact.” Kenny, 885 F.3d at 287.
We have recognized two ways in which litigants may establish the requisite
ongoing injury when seeking to enjoin government policies alleged to violate the First
Amendment. See id. at 288; Cooksey, 721 F.3d at 235–38. 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. Kenny, 885 F.3d at 288;
see Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2342–45 (2014). Second, they

cases). Here, it seems clear from the context that the district court intended to enter
summary judgment only as to the claims over which it retained jurisdiction, having
dispensed already with the facial challenge on standing grounds. And the parties, for
their part, have offered no indication on appeal that they disagree. Accordingly, we treat
the district court’s entry of summary judgment for defendants on the facial challenge as a
dismissal under Rule 12(b)(1) for want of jurisdiction, and affirm on that basis. Cf.
Mexiport, Inc. v. Frontier Commc’ns Servs., Inc., 253 F.3d 573, 574 n.2 (11th Cir. 2001)
(“Because we are not bound by the label placed on the district court’s disposition of the
case, we [may] treat the district court’s summary judgment ruling as a dismissal [under
Rule 12(b)(1)].”).
28

Appeal: 17-1853

Doc: 50

Filed: 08/16/2018

Pg: 29 of 36

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.” Cooksey, 721 F.3d at 235–36
(quoting Benham, 635 F.3d at 135). 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. See Rock for Life-UMBC, 594 F.
Supp. 2d at 606; Ramirez v. Sanchez Ramos, 438 F.3d 92, 98 (1st Cir. 2006).
A.
The most obvious way to demonstrate a credible threat of enforcement in the
future, of course, is an enforcement action in the past. See, e.g., Susan B. Anthony List,
134 S. Ct. at 2345 (“history of past enforcement” is “good evidence” of a genuine threat
of enforcement); O’Shea, 414 U.S. at 496 (“[P]ast wrongs are evidence bearing on
whether there is a real and immediate threat of repeated injury.”). Our recent decision in
Kenny v. Wilson is a good example. There, a group of South Carolina students sought to
challenge two state laws criminalizing school disturbances and disorderly conduct,
seeking an injunction against the laws’ enforcement on vagueness grounds. We held that
several of the students could show a “credible threat of future enforcement” of the laws
against them – primarily because they had previously been arrested and criminally
charged under the very same statutes. 885 F.3d at 288–89; see also Doe v. Univ. of
Mich., 721 F. Supp. 852, 861 (E.D. Mich. 1989) (holding that students sufficiently

29

Appeal: 17-1853

Doc: 50

Filed: 08/16/2018

Pg: 30 of 36

alleged credible threat of enforcement of campus speech policy against them where
university previously had enforced policy against classroom comments).
The plaintiffs here, by contrast, can point to no evidence of prior sanctions under
STAF 6.24 – against them or anyone else – for the type of speech in which they wish to
engage. Instead, they argue that the University’s inquiry into the Free Speech Event
establishes the necessary “credible threat” of enforcement, making it reasonable to expect
that they will be sanctioned under STAF 6.24 if they sponsor similar events in the future.
Like the district court, we must disagree.
As we have explained already, once Abbott attended his meeting with Wells
regarding the Free Speech Event and then received written notice that neither
investigation nor sanction was forthcoming, a student of “ordinary firmness” no longer
could have reason to fear discipline under STAF 6.24 for similar activity. See Abbott,
263 F. Supp. 3d at 577 & n.4. For much the same reason, the plaintiffs cannot establish a
“credible threat” that the University would employ STAF 6.24 to sanction, say, their
Marijuana Legalization Rally.

It is true, as the plaintiffs argue, that Wells’s letter

announcing that no action would be taken in response to the Free Speech Event did not
go on to specify that no action would be taken in response to similar events in the future.
But it is up to the plaintiffs to show some objective reason to believe the University
would change its position, and this they have not done. As the district court explained,
University officials, after concluding their inquiry into the Free Speech Event, did
nothing to threaten the plaintiffs with future discipline under STAF 6.24. Id. at 580; cf.
Cooksey, 721 F.3d at 237 (finding objectively reasonable self-censorship in light of
30

Appeal: 17-1853

Doc: 50

Filed: 08/16/2018

Pg: 31 of 36

“explicit warning” from state “that it will continue to monitor the plaintiff’s speech in the
future”). And the fact that the University inquired into and then dismissed student
complaints arising from the Event – including complaints of verbal harassment at the
scene – does not by itself translate into a credible threat that the University would
sanction the plaintiffs for engaging in protected speech in the future simply because
others found it offensive. Cf. Ramirez, 438 F.3d at 99 (“It is simply too much of a stretch
to posit that the government’s decision to prosecute a Riot Act charge” arising from a
protest march also “indicates a willingness to prosecute entirely peaceful

First

Amendment expression.”).
For their claim to the contrary, the plaintiffs rely primarily on Doe v. University of
Michigan, in which a district court found a credible threat that a campus harassment
policy would be enforced against a student’s intended classroom speech, conferring
standing to seek an injunction. 721 F. Supp. at 858–61. In that case, the court relied on a
combination of “legislative history” making plain the university’s intent to bar any
expression that “many individuals” would find “offensive,” official university guidance
suggesting that precisely the ideas the student wished to discuss – specifically,
differences between the sexes – would be sanctionable if aired in a classroom, and a past
record of enforcement of the policy against classroom comments. Id. at 859–61. Here,
by contrast, on the plaintiffs’ own account, the University has made manifest its intent to
allow speech even when it might or does cause offense, first approving the display of a
swastika on campus (though recognizing that it might be a “bit uncomfortable,” J.A.
151), and then deciding against disciplinary action in response to student complaints of
31

Appeal: 17-1853

Doc: 50

Filed: 08/16/2018

Pg: 32 of 36

“offensive symbols” and “offensive signs,” J.A. 67, 72. Moreover, as the district court
pointed out, the record in this case is devoid of any evidence that there has “been frequent
actual or threatened use of STAF 6.24 to silence the types of speech” in which the
plaintiffs wish to engage, and STAF 6.24 specifically “clarifies that the policy does not
regulate academic speech.” Abbott, 263 F. Supp. 3d at 580. There are significant
differences, in short, between this case and Doe, and overlooking them here would do a
disservice to the good-faith efforts of university officials to mind the details, crafting
harassment policies so that they protect the “open exchange of ideas,” J.A. 90. 9
B.
Again, the plaintiffs have a fallback argument. Even if they do not face a credible
threat of actual discipline or sanctions under STAF 6.24, they contend, there still is a
credible threat of another meeting like the one Abbott was required to attend with Wells.
9

We have recognized a “presumption” of a credible threat of enforcement with
respect to “non-moribund” statutes that “facially restrict[] expressive activity by the class
to which the plaintiff belongs.” N.C. Right to Life, Inc. v. Bartlett, 168 F.3d 705, 710 (4th
Cir. 1999) (internal quotation marks omitted). The plaintiffs do not rely on that
presumption here, and we agree that it does not apply. There is no question that the
plaintiffs belong to the “class” governed by STAF 6.24. But unlike in Bartlett, where the
policy “appear[ed] by its terms to apply” to the plaintiffs’ anticipated speech and
contained no “rule exempting” their intended “issue advocacy,” id. at 710–11, STAF 6.24
is on its face limited to conduct “sufficiently severe, pervasive or persistent” to deprive
its targets of equal educational opportunity, and contains multiple statements exempting
the kind of academic speech in which the plaintiffs intend to engage. See, e.g., J.A. 91
(“Harassment does not include the use of materials by students or discussions involving
students . . . for academic purposes appropriate to the academic context.”); J.A. 90
(“Nothing in this policy is intended to impede the exercise of those rights protected under
the First Amendment of the U.S. Constitution.”). Whether or not STAF 6.24 would
survive a facial challenge based primarily on the alleged vagueness of its terms – a
question we lack jurisdiction to decide – we think these provisos are enough to bring it
outside the “presumption” of enforcement discussed in cases like Bartlett.
32

Appeal: 17-1853

Doc: 50

Filed: 08/16/2018

Pg: 33 of 36

In other words, if they engage in speech events similar to the Free Speech Event, and
those events again draw student complaints, then they have reason to expect more
meetings with University officials – and those meetings, the plaintiffs claim, are their
own form of threatened punishment, sufficiently “chilling” to generate reasonable selfcensorship and thus confer standing for their facial challenge. We disagree.
We may accept, at least for purposes of argument, the plaintiffs’ premise: that
there are some forms of “pre-enforcement” investigation that are so onerous that they
become the functional equivalent of “enforcement” for standing purposes. The Supreme
Court addressed this question without quite deciding it in Susan B. Anthony List,
considering whether certain advocacy organizations had standing to seek an injunction on
First Amendment grounds against a state law (discussed above) that criminalized false
statements made against political candidates.

In finding a “credible threat of

enforcement” sufficient to confer standing, the Court recognized that the state’s
administrative process for investigating complaints itself imposed a “substantial” burden
virtually indistinguishable from a sanction:
[T]he practical effect of the [state] scheme is to permit a private
complainant to gain a campaign advantage without ever having to prove the
falsity of a statement. Complainants may time their submissions to achieve
maximum disruption of their political opponents . . . . [T]he target of a
false statement complaint may be forced to divert significant time and
resources to hire legal counsel and respond to discovery requests in the
crucial days leading up to an election. And where, as here, a Commission
panel issues a preelection probable-cause finding, such a determination
itself may be viewed by the electorate as a sanction by the State.
134 S. Ct. at 2346 (citations, alterations, and internal quotation marks omitted). But there
was no need, the Court held, to decide whether the threat of administrative proceedings
33

Appeal: 17-1853

Doc: 50

Filed: 08/16/2018

Pg: 34 of 36

alone was tantamount to a threat of “enforcement” for standing purposes, because in that
case, there also existed a realistic threat of criminal prosecution. Id.
What is clear, however, is that a threatened administrative inquiry will not be
treated as an ongoing First Amendment injury sufficient to confer standing unless the
administrative process itself imposes some significant burden, independent of any
ultimate sanction. See id. (describing burdens imposed by administrative process as of
“particular concern” because of their potential to influence election results regardless of
outcome); Rock for Life-UMBC, 594 F. Supp. 2d at 608 (collecting cases).

A

“significantly intrusive” FBI field investigation into a plaintiff’s political beliefs and
personal life, for instance, has been deemed sufficiently onerous that it reasonably could
generate a “chilling effect” for standing purposes, Clark v. Library of Congress, 750 F.2d
89, 92–95 (D.C. Cir. 1984), as has an “extraordinarily intrusive and chilling”
investigation by a federal agency, lasting for eight months, into certain plaintiffs’
protected speech and beliefs, White v. Lee, 227 F.3d 1214, 1228, 1237–38, 1242 (9th Cir.
2000).
The single, non-intrusive meeting that plaintiffs rely on here, followed two weeks
later by an announcement that no further action would be taken, does not fall within this
category. Even an objectively reasonable “threat” that the plaintiffs might someday have
to meet briefly with a University official in a non-adversarial format, to provide their own
version of events in response to student complaints, cannot be characterized as the
equivalent of a credible threat of “enforcement” or as the kind of “extraordinarily
intrusive” process that might make self-censorship an objectively reasonable response.
34

Appeal: 17-1853

Doc: 50

Filed: 08/16/2018

Pg: 35 of 36

And because the plaintiffs can point to no reason to think they will be subjected to some
different and more onerous process not yet experienced or threatened, their claim to
injury by way of threatened “process” is purely speculative and thus insufficient to
establish standing. See Benham, 635 F.3d at 135 (“Subjective or speculative accounts of .
. . a chilling effect . . . are not sufficient. Any chilling effect must be objectively
reasonable.”) (alterations and internal quotation marks omitted). 10
IV.
Freedom of speech needs “breathing space to survive.” NAACP v. Button, 371
U.S. 415, 433 (1963). And “vigilant protection” of First Amendment rights is “nowhere
more vital” than at public universities, which are “peculiarly the ‘marketplace of ideas.’”
Healy, 408 U.S. at 180 (quoting Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967)).
For those reasons, we have recognized that policies that formally or informally suppress
protected expression at public universities raise serious First Amendment concerns. See
Sigma Chi Fraternity, 993 F.2d at 393. And while we are mindful of universities’
obligations to address serious discrimination and harassment against their students, we
10

In addition, we note a mismatch between the plaintiffs’ facial challenge to
STAF 6.24, limited to certain substantive provisions of that policy, and a theory of
standing that rests on a threatened meeting or other administrative process, governed by a
different section of STAF 6.24 devoted to complaint procedures. Though we give “broad
latitude” to facial challenges in the First Amendment context, a plaintiff still “must
establish that he has standing to challenge each provision of [a policy] by showing that he
was injured by application of those provisions.” Covenant Media of S.C., LLC v. City of
N. Charleston, 439 F.3d 421, 429–30 (4th Cir. 2007) (emphases added). Even if the
threat of a meeting under STAF 6.24’s complaint procedures could rise to the level of a
cognizable First Amendment injury-in-fact, it would not automatically “provide [the
plaintiffs] a passport to explore the constitutionality” of the rest of STAF 6.24’s
provisions. Id. at 429.
35

Appeal: 17-1853

Doc: 50

Filed: 08/16/2018

Pg: 36 of 36

also are attentive to the dangers of stretching policies beyond their purpose to stifle
debate, enforce dogma, or punish dissent.
Here, however, we have a University that approved and encouraged a speech event
intended to be controversial, with the knowledge that it would cause “[d]iscomfort.” J.A.
156. And in the face of student complaints, the University made no effort to sanction that
speech after the fact. The plaintiffs suggest that a ruling against them will make it
impossible for any student to mount a successful challenge to an overly broad campus
harassment policy, but we must disagree. Our decision today is limited to the facts
before us, and the courthouse door remains open to the claims of students who experience
cognizable restrictions on their right to free expression.

AFFIRMED

36