SPEECH FIRST, INC v. WHITTEN et al

Filing 33

ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION - Under binding Seventh Circuit precedent, Speech First lacks standing to seek preliminary injunctive relief, so its motion for preliminary injunction is DENIED. Dkt. 9 . This case, including briefing on IU's motion to dismiss, dkt. 24 , is STAYED pending resolution of Speech First's anticipated appeal. Any party may file a motion to lift the stay for good cause. SEE ORDER. Signed by Judge James Patrick Hanlon on 8/28/2024. (KAA)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
SPEECH FIRST, INC,

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Plaintiff,
v.
PAMELA WHITTEN,
LAMAR HYLTON,
KATHY ADAMS RIESTER,
CEDRIC HARRIS,
JASON SPRATT,
HEATHER BRAKE,
KATHERINE BETTS,
QUINN BUCKNER,
CINDY LUCCHESE,
CATHY LANGHAM,
JEREMY A. MORRIS,
J. TIMOTHY MORRIS,
KYLE S. SEIBERT,
DONNA B. SPEARS,
ISAAC TORRES,
VIVIAN WINSTON,
Defendants.

No. 1:24-cv-00898-JPH-MG

ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION
Speech First, an organization that seeks to protect free speech rights on
college campuses, brought this case against Indiana University officials alleging
that IU's "bias incident" policy violates the First and Fourteenth Amendments.
Dkt. 1. Although Speech First has filed a motion for a preliminary injunction
preventing Defendants from enforcing IU's policy, dkt. 9, the parties agree that
Speech First, Inc. v. Killeen, 968 F.3d 628 (7th Cir. 2020), requires the Court to
deny Speech First's motion. Dkt. 10 at 5–6; dkt. 30 at 6–7, 23; dkt. 31 at 2
(Speech First acknowledging that "it must lose under Killeen").
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For the reasons below, the motion for preliminary injunction is DENIED
under Killeen and this case is STAYED pending Speech First's anticipated
appeal. Dkt. [9].
I.
Facts & Background
The parties have filed affidavits and other documentary evidence, the
relevant parts of which are uncontested. See dkt. 1 (verified complaint); dkt. 9;
dkt. 25. Neither party requested an evidentiary hearing, see dkt. 21, so these
facts are based on that designated evidence.
A. Indiana University's Bias Response & Education Initiative
Indiana University is an institution of higher education that "encourages
the free and civil exchange of ideas." Dkt. 9-12 at 5. In order to "foster[ ]
campus communities where all are welcomed, valued, respected, and belong,"
IU has created Bias Response & Education, an initiative that includes a bias
incident process. Id. at 4. Through this process, IU invites reports of "bias
incidents," which include "any conduct, speech, or expression, motivated in
whole or in part by bias or prejudice meant to intimidate, demean, mock,
degrade, marginalize, or threaten individuals or groups based on that
individual or group's actual or perceived identities." Id. at 2. IU has
encouraged reports on several of its websites, see id.; dkt. 9-23; dkt. 9-26, and
on social media, see dkt. 9-22.
IU's Bias Response & Education website explains that it "privately
reviews all submitted bias incident reports" and responds to them:

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Dkt. 9-12 at 2–3. The website goes on to explain what Bias Response &
Education does and does not do:

The form for reporting incidents of bias adds that the "primary goal is to
provide support to the individual or community impacted," though reports are
also "evaluated to determine if further investigation is required for potential
violations of university policy and/or criminal law." Dkt. 9-14 at 2.
Any student engagement with Bias Response & Education is "entirely
voluntary." Dkts. 25-1 at 3; 25-2 at 3. If a student—whether reporting or

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alleged to have engaged in reported behavior—"does not want to meet or
otherwise engage with Bias Response & Education, the student does not have
to, and will not be penalized or sanctioned as a result of that decision." Dkts.
25-1 at 3; 25-2 at 3. Reported students may receive an email asking to
schedule a voluntary meeting. Dkts. 25-1 at 10; 25-2 at 10. Many students—
"the majority" at the Indianapolis campus and "numerous" at the Bloomington
campus—either do not respond or decline a meeting. Dkts. 25-1 at 10; 25-2 at
10. If a student agrees to meet, "Bias Response & Education does not ask or
require students to change what they do or say" and "leaves no doubt that
[students] are not being charged with any Code violation, nor are the students
'in trouble.'" Dkts. 25-1 at 10; 25-2 at 10.
Regardless of the situation, "Bias Response & Education never makes a
'finding' that a bias-motivated incident has occurred, nor does it have any
disciplinary function whatsoever." Dkts. 25-1 at 3; 25-2 at 3. Bias-incident
reports are kept in "an internal Bias Response & Education database" and data
from them are aggregated—without names or personal identifiers—to track, for
example, the volume, categories, and locations of reports. Dkts. 25-1 at 9, 11;
25-2 at 9, 11. Those reports are "kept secure and private" and "are not
recorded in students' academic or disciplinary records." Dkts 25-1 at 10–11;
25-2 at 10–11. In short, "Bias Response & Education has no power to
sanction, punish, or otherwise discipline any student for any reason." Dkts.
25-1 at 3; 25-2 at 3.

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B. Speech First and its IU Student Members
Speech First "is a nationwide membership organization of students,
alumni, and other concerned citizens" that "seeks to protect the rights of
students and others at colleges and universities." Dkt. 1 at 3. Some of its
members attend Indiana University, including anonymous students A, B, C, D,
and E. Id.
Students A, B, C, D, and E are all "politically conservative and hold views
that are unpopular, controversial, and in the minority on campus." Dkts. 9-3
at 1; 9-4 at 1; 9-5 at 1; 9-6 at 1; 9-7 at 1. They each "want to speak directly to
[their] classmates" and "want to talk frequently and repeatedly" about issues
such as gender identity, immigration, affirmative action, and the Israel–
Palestine conflict. Dkts. 9-3 at 1–3; 9-4 at 1–2; 9-5 at 1–2; 9-6 at 1–3; 9-7 at
1–3. IU's "bias incidents policy, however, makes [them] reluctant to openly
express [their] opinions or have these conversations in the broader University
community." Dkts. 9-3 at 3; 9-4 at 3; 9-5 at 3; 9-6 at 3; 9-7 at 3. They
therefore "do not fully express" themselves because "others will likely report
[them] to University officials for committing a 'bias incident.'" Dkts. 9-3 at 3; 94 at 3; 9-5 at 3; 9-6 at 3; 9-7 at 3. Each student is "afraid that the Bias
Response Team will keep a record on me, share the allegations with campus
leaders and others within the university, call me in for meetings, or refer the
allegations to the Office of Student Conduct." Dkts. 9-3 at 3; 9-4 at 3; 9-5 at 3;
9-6 at 3; 9-7 at 3.

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Speech First brings a facial challenge against IU's "bias incident" policy,
alleging that it should be enjoined in its entirety under the First and
Fourteenth Amendments. Dkt. 1. It has filed a motion for a preliminary
injunction under Federal Rule of Civil Procedure 65, requesting that the Court
"enjoin Defendants from enforcing [IU's bias-incident] policies during this
litigation." Dkt. 9. Speech First concedes, however, that the Seventh Circuit's
opinion in Killeen—which addressed a facial challenge to the University of
Illinois's bias-response policies—is "binding" and "requires this Court to deny
Speech First's motion for a preliminary injunction." Dkt. 10 at 5; dkt. 31 at 1
("Speech First agrees that its preliminary-injunction motion must be denied"
and "asks this Court to rule promptly so it can appeal.").
II.
Preliminary Injunction Standard
Injunctive relief under Federal Rule of Civil Procedure 65 is "an exercise
of very far-reaching power, never to be indulged in except in a case clearly
demanding it." Cassell v. Snyders, 990 F.3d 539, 544 (7th Cir. 2021). To
obtain such extraordinary relief, the party seeking the preliminary injunction
carries the burden of persuasion by a clear showing. See id.; Mazurek v.
Armstrong, 520 U.S. 968, 972 (1997).
Determining whether a plaintiff "is entitled to a preliminary injunction
involves a multi-step inquiry." Int'l Ass'n of Fire Fighters, Local 365 v. City of E.
Chicago, 56 F.4th 437, 446 (7th Cir. 2022). "As a threshold matter, a party
seeking a preliminary injunction must demonstrate (1) some likelihood of
succeeding on the merits, and (2) that it has no adequate remedy at law and
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will suffer irreparable harm if preliminary relief is denied." Id. "If these
threshold factors are met, the court proceeds to a balancing phase, where it
must then consider: (3) the irreparable harm the non-moving party will suffer if
preliminary relief is granted, balancing that harm against the irreparable harm
to the moving party if relief is denied; and (4) the public interest, meaning the
consequences of granting or denying the injunction to non-parties." Cassell,
990 F.3d at 545. This "involves a 'sliding scale' approach: the more likely the
plaintiff is to win on the merits, the less the balance of harms needs to weigh in
his favor, and vice versa." Mays v. Dart, 974 F.3d 810, 818 (7th Cir. 2020). "In
the final analysis, the district court equitably weighs these factors together,
seeking at all times to minimize the costs of being mistaken." Cassell, 990
F.3d at 545.
III.
Analysis
"To invoke federal jurisdiction, [a plaintiff] must have standing, which is
a short-hand term for the right to seek judicial relief for an alleged injury."
Simic v. City of Chicago, 851 F.3d 734, 738 (7th Cir. 2017). "A plaintiff bears
the burden of showing that she has standing for each form of relief sought,"
including "injunctive relief." Id. "A district court . . . can address a motion for
a preliminary injunction without making a conclusive decision about whether it
has subject-matter jurisdiction." Id. But "issues of subject matter jurisdiction
are always on the table in federal courts," including in preliminary-injunction
proceedings. Id. Accordingly, if a plaintiff lacks standing to seek injunctive

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relief, a motion for preliminary injunction should be denied on that basis. Id.
at 738–39; Killeen, 968 F.3d at 638–39, 647.
In Killeen, Speech First brought a facial challenge against bias-response
policies at the University of Illinois at Urbana–Champaign, arguing that they
"impermissibly chill[ed] the speech of student members of its organization."
968 F.3d at 632. Those policies were implemented by a Bias Assessment and
Response Team ("BART"), which "collect[ed] and respond[ed] to reports of biasmotivated incidents that occur within the University of Illinois at Urbana–
Champaign community." Id. BART was housed in the same office that
enforced the student code and had a law-enforcement liaison from the
University Police Department. Id. at 633. It could not, however, "require
students to change their behavior and [did] not have authority to issue
sanctions." Id. And while BART published an "annual report of incidents with
all personally identifiable information removed," interactions with students
were kept private and did "not appear on students' academic or disciplinary
records." Id.
The Seventh Circuit affirmed the district court's denial of Speech First's
motion for a preliminary injunction, holding that Speech First lacked standing
to seek a preliminary injunction. Id. at 647. The Seventh Circuit explained
that the University of Illinois had "not investigated or punished any of the
students who are members of Speech First pursuant to any of the challenged
University policies." Id. at 639. Nor had Speech First "demonstrated that these
policies pose[d] a credible threat of enforcement to any student or whether any
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student has faced an objectively reasonable chilling effect on his or her
speech." Id. That was because Speech First (1) did not contest that its
members could not be disciplined under the student code for expressing the
views they wished to express; (2) did not identify the statements its student–
members wished to make; (3) designated no evidence that any student fears
consequences from interacting (or deciding not to interact) with BART, and has
therefore self-censored; (4) did not contest that BART lacked disciplinary
authority; and (5) did not contradict that BART's "interactions with students
are private." Id. at 639–42.
Here, the parties agree that the Court must deny Speech First's motion
because under Killeen, Speech First lacks standing to seek a preliminary
injunction. Dkt. 10 at 5–6; dkt. 30 at 6–7, 23; dkt. 31 at 2 (Speech First
acknowledging that "it must lose under Killeen").
Considering Speech First's concessions and the factual record
established by the parties' filings, Killeen cannot be meaningfully
distinguished. Speech First's student–members at IU have identified the
general topics they'd like to speak about and expressed fear "that the Bias
Response Team will keep a record on me, share the allegations with campus
leaders and others within the university, call me in for meetings, or refer the
allegations to the Office of Student Conduct." Dkts. 9-3; 9-4; 9-5; 9-6; 9-7.
But Speech First concedes that these affidavits are not enough for standing
because, under Killeen, Bias Response & Education at IU is "materially similar"

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to the University of Illinois's policy and therefore does "not chill speech." Dkt.
31 at 4–5.
Indeed, Speech First admits that Bias Response & Education lacks
disciplinary authority and that "[b]ias-motivated speech alone is not a Student
Code violation" at IU. Id. at 4. It further admits "that students are not
punished" for declining to meet with Bias Response & Education. Id. And it
admits that interactions with Bias Response & Education are anonymized and
"not recorded in academic or disciplinary records." Id. Speech First also does
not contest that many students either decline or do not respond to Bias
Response & Education's meeting invitations. Id. at 3.
Speech First therefore has not shown that it has standing to seek
preliminary injunctive relief under Killeen. See id. at 647 ("Speech First . . .
failed to demonstrate that any of its members face a credible threat of any
enforcement on the basis of their speech or that . . . responses to reports of
bias-motivated incidents have an objective chilling effect."); Simic, 851 F.3d at
738–39. This Court is bound to follow Killeen, and therefore must deny Speech
First's motion for preliminary injunction. 1 See Reiser v. Residential Funding
Corp., 380 F.3d 1027, 1029 (7th Cir. 2004).

1 The Court's analysis of the facts in this order speak only to whether Speech First
"has met its burden to demonstrate that any of its members experience an actual,
concrete, and particularized injury as a result of [IU]'s policies for the purpose of
standing to pursue a preliminary injunction." Killeen, 968 F.3d at 643–44.

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IV.
Conclusion
Under binding Seventh Circuit precedent, Speech First lacks standing to
seek preliminary injunctive relief, so its motion for preliminary injunction is
DENIED. Dkt. [9]; see Killeen, 968 F.3d at 638–39, 647.
This case, including briefing on IU's motion to dismiss, dkt. 24, is
STAYED pending resolution of Speech First's anticipated appeal. Dkt. 31 at 1
("Speech First asks this Court to rule promptly so it can appeal to a court that
has the power to overrule Killeen."); see Killeen, 968 F.3d at 655 n.7
(concurrence in part noting that "the defendants' obligation to answer or
otherwise respond to the complaint" had been stayed during the preliminaryinjunction appeal); Simic, 851 F.3d at 740. Any party may file a motion to lift
the stay for good cause.
SO ORDERED.
Date: 8/28/2024

Distribution:
All electronically registered counsel

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