Speech First, Inc. v. SCHLISSEL et al

Filing 4

MOTION for Preliminary Injunction by Speech First, Inc.. (Attachments: # 1 Exhibit Declaration of Nicole Neily, # 2 Exhibit Declaration of Jeffrey Harris) (Di Giacomo, John)

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SPEECH FIRST, INC.,
Plaintiff,

v.

Civil Action 2:18-cv-11451-LVP-EAS

MARK SCHLISSEL, et al. ,
Defendants.

PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
Pursuant to Federal Rule of Civil Procedure 65, Plaintiff Speech First, Inc.
(“Speech First”) hereby moves the Court to issue a preliminary injunction enjoining
Defendants Mark Schlissel, et al., from: (1) taking any actions to investigate, threaten,
or punish students for violations of the prohibitions on “harassment,” “bullying,” and
“bias-related misconduct” set forth in the University’s Statement of Student Rights and
Responsibilities; and (2) using the Bias Response Team to investigate, threaten, or
punish students (including informal punishments such as “restorative justice” or
“individual education”) for “bias incidents.”
Speech First respectfully asks that the Court expedite resolution of this motion
to the extent necessary to ensure that a decision by this Court and by the Sixth Circuit,

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should either party decide to appeal this Court’s ruling, is reached before the new school
year begins on September 4, 2018.
Pursuant to Local Rule 7.1(a), Speech First conferred with Defendants’ counsel.
Defendants do not concur in the relief sought and oppose Speech First’s request for a
preliminary injunction.
Respectfully submitted,
By:/s/ John A. Di Giacomo
Dated: May 11, 2018

John A. Di Giacomo (P73056)
REVISION LEGAL, PLLC
5024 Territorial Road
Grand Blanc, MI 48439
[phone]
[e-mail]
Local Counsel
William S. Consovoy
Jeffrey M. Harris
J. Michael Connolly
CONSOVOY MCCARTHY PARK PLLC
3301 Wilson Boulevard
Suite 700
Arlington, VA 22201
[phone]
Counsel for Plaintiff Speech First, Inc.

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CERTIFICATE OF SERVICE
I hereby certify that on May 11, 2018, I electronically filed the foregoing with the
Clerk of the Court using the ECF system. Pursuant to agreement with Defendants’
counsel, an electronic copy of the foregoing was emailed to Defendants’ counsel on
May 11, 2018.

By: /s/ John A. Di Giacomo
John A. Di Giacomo (P73056)
REVISION LEGAL, PLLC
5024 Territorial Road
Grand Blanc, MI 48439
[phone]
[e-mail]

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SPEECH FIRST, INC.,
Plaintiff,

v.

Civil Action 2:18-cv-11451-LVP-EAS

MARK SCHLISSEL, et al. ,
Defendants.

PLAINTIFF’S MEMORANDUM IN SUPPORT OF
MOTION FOR PRELIMINARY INJUNCTION

John A. Di Giacomo (P73056)
REVISION LEGAL, PLLC
5024 Territorial Road
Grand Blanc, MI 48439
[phone]
[e-mail]

William S. Consovoy (application for admission
forthcoming)
Jeffrey M. Harris (application for admission
forthcoming)
J. Michael Connolly (application for admission
forthcoming)
CONSOVOY MCCARTHY PARK PLLC
3301 Wilson Boulevard
Suite 700
Arlington, VA 22201
[phone]

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TABLE OF CONTENTS
TABLE OF AUTHORITIES ..............................................................................................iii
CONSISE STATEMENT OF ISSUES PRESENTED ...................................................v
CONTROLLING AUTHORITY FOR RELIEF SOUGHT ..........................................v
STATEMENT PURSUANT TO L.R. 7.1(a) ......................................................................v
INTRODUCTION AND SUMMARY OF ARGUMENT .............................................1
BACKGROUND ...................................................................................................................4
I.

The University’s Expansive and Ill-Defined Bans on “Harassment,”
“Bullying,” and “Bias-Motivated Misconduct.” ...........................................................4

II.

The University’s “Bias Response Team” and its Expansive and Ill-Defined
Ban on “Bias Incidents.” ...............................................................................................7

III.

Speech First and This Litigation. .............................................................................. 11

ARGUMENT ....................................................................................................................... 12
I.

Speech First Is Likely To Prevail On The Merits Of Its Claims. ........................... 12
A.

The First Amendment Prohibits Vague and Overbroad Regulations
Capturing Substantial Amounts of Protected Speech. ..................................... 12

B.

The Statement’s Bans on “Harassment,” “Bullying,” and “Bias-Related
Misconduct” Are Unconstitutionally Overbroad and Void for Vagueness. . 14

C.

The Bias Response Team’s Ban on “Bias Incidents” Is Unconstitutionally
Overbroad and Void for Vagueness. .................................................................. 19

II.

Speech First Meets The Remaining Preliminary-Injunction Criteria. ................ 23

CONCLUSION ................................................................................................................... 25

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TABLE OF AUTHORITIES
CASES
Bair v. Shippensburg Univ.,
280 F. Supp. 2d 357 (M.D. Pa. 2003) .......................................................... 13, 17, 23, 24
Dambrot v. Central Mich. Univ.,
55 F.3d 1177 (6th Cir. 1995) ............................................................................... 14, 15, 16
Dayton Area Visually Impaired Persons, Inc. v. Fisher,
70 F.3d 1474 (6th Cir. 1995) ........................................................................................... 25
DeJohn v. Temple Univ.,
537 F.3d 301 (3d Cir. 2008) ....................................................................................... 16, 18
Doe v. University of Michigan,
721 F. Supp. 852 (E.D. Mich. 1989) .........................................................................passim
Elrod v. Burns,
427 U.S. 347 (1976) .......................................................................................................... 24
G & V Lounge, Inc. v. Mich. Liquor Control Comm’n,
23 F.3d 1071 (6th Cir. 1994) ..................................................................................... 24, 25
Hustler Magazine, Inc. v. Falwell,
485 U.S. 46 (1988) ............................................................................................................ 13
Jones v. Caruso,
569 F.3d 258 (6th Cir. 2009) ........................................................................................... 24
Leonardson v. City of East Lansing,
896 F.2d 190 (6th Cir. 1990) ..................................................................................... 14, 16
Marshall v. Ohio University,
2015 WL 1179955 (S.D. Ohio 2015) ............................................................................. 18
Monaghan v. Sebelius,
916 F. Supp. 2d 802 (E.D. Mich. 2012) ......................................................................... 24
Papish v. Bd. of Curators of Univ. of Mo.,
410 U.S. 667 (1973) .............................................................................................................1
R.A.V. v. City of St. Paul, Minn.,
505 U.S. 377 (1992) .......................................................................................................... 13
Saxe v. State College Area School Dist.,
240 F.3d 200 (3d Cir. 2001) .......................................................................... 13, 16, 18, 21
Snyder v. Phelps,
562 U.S. 443 (2011) .......................................................................................................... 24
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Solid Rock Found. v. Ohio State Univ.,
478 F. Supp. 96 (S.D. Ohio 1979) .....................................................................................1
Speet v. Schuette,
726 F.3d 867 (6th Cir. 2013) ........................................................................................... 14
Street v. New York,
394 U.S. 576 (1969) .......................................................................................................... 12
Sypniewski v. Warren Hills Regional Bd. Of Educ.,
307 F.3d 243, (3d Cir. 2002) ............................................................................................ 18
Texas v. Johnson,
491 U.S. 397 (1989) .......................................................................................................... 12
Tinker v. Des Moines Indep. Cmty. Sch. Dist.,
393 U.S. 503 (1969) .......................................................................................................... 12
United States v. Playboy Entertainment Group,
529 U.S. 803 (2000) .......................................................................................................... 13
Virginia v. Black,
538 U.S. 343 (2003) .......................................................................................................... 25
Winter v. Nat. Resources Def. Council,
555 U.S. 7 (2008) .............................................................................................................. 12
OTHER AUTHORITIES
FIRE, Bias Response Team Report 2017 (Feb. 2017) ........................................................... 23
Snyder & Khalid, The Rise of “Bias Response Teams” on Campus,
The New Republic (Mar. 30, 2016) ................................................................................ 23

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CONSISE STATEMENT OF ISSUES PRESENTED
Issue 1:

Is Plaintiff entitled to a preliminary injunction?

Plaintiff Speech First argues that it is entitled to a preliminary injunction under
Fed. R. Civ. Pro. 65(a) because the defendant officials at the University of Michigan
have adopted several policies that unconstitutionally ban protected speech and
expression and have a chilling effect on open discourse at the University. Plaintiff argues
that these policies violate the First and Fourteenth Amendments, that Plaintiff will
suffer irreparable harm in the absence of a preliminary injunction, and that the balance
of equities and public interest tip in favor of an injunction.
CONTROLLING AUTHORITY FOR RELIEF SOUGHT
Fed. R. Civ. Pro. 65(a)
Winter v. Nat. Resources Def. Council, 555 U.S. 7 (2008)
United States v. Playboy Entertainment Group, 529 U.S. 803 (2000)
R.A.V. v. City of St. Paul, Minn., 505 U.S. 377 (1992)
Texas v. Johnson, 491 U.S. 397 (1989)
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969)
Dambrot v. Central Mich. Univ., 55 F.3d 1177 (6th Cir. 1995)
G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071 (6th Cir. 1994)
Leonardson v. City of East Lansing, 896 F.2d 190 (6th Cir. 1990)
Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989)
STATEMENT PURSUANT TO L.R. 7.1(a)
Counsel for Plaintiff notified counsel for Defendants of Plaintiff’s intent to file
this motion. Defendants do not consent to the relief sought herein.

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INTRODUCTION AND SUMMARY OF ARGUMENT
“The mere dissemination of ideas—no matter how offensive to good taste—on
a state university campus may not be shut off in the name alone of ‘conventions of
decency.’” Papish v. Bd. of Curators of Univ. of Mo., 410 U.S. 667, 670 (1973). After all,
“[t]he college campus is peculiarly suited to serve as a marketplace of ideas and a forum
for the robust exchange of different viewpoints.” Solid Rock Found. v. Ohio State Univ.,
478 F. Supp. 96, 102 (S.D. Ohio 1979). Yet the University of Michigan (“the
University”) and its officials have created an elaborate investigatory and disciplinary
apparatus to suppress and punish speech other students deem “demeaning,”
“bothersome,” or “hurtful.” This Court found the University’s previous iteration of a
speech code to violate the First and Fourteenth Amendments. See Doe v. University of
Michigan, 721 F. Supp. 852 (E.D. Mich. 1989). The University’s latest attempts at
censorship should fare no better.
Plaintiff Speech First, Inc. (“Speech First”) is a nationwide membership
organization of students, alumni, and others—including current students who attend
the University—that is dedicated to preserving civil rights secured by law, including the
freedom of speech guaranteed by the First Amendment to the U.S. Constitution.
Speech First respectfully requests, before the start of the 2018-19 school year, a
preliminary injunction enjoining two separate but related University policies that have
a profound chilling effect on protected speech and expression.

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First, the University’s disciplinary code prohibits “harassment” and “bullying,”
and further increases the potential penalties if such actions were motivated by “bias.”
All of those concepts, as the University interprets and applies them, can capture
staggering amounts of protected speech and expression. For example, the University
defines “harassment” as “unwanted negative attention perceived as intimidating,
demeaning, or bothersome to an individual.” Ex. B. at 6.1 A student can thus be subject
to significant penalties (up to and including expulsion) if another student perceives his or
her speech as “demeaning” or “bothersome.” Under this regime, the most sensitive
student on campus effectively dictates the terms under which others may speak. The
University’s expansive and amorphous prohibitions on “harassment,” “bullying,” and
“bias-related misconduct” are having—and will continue to have—a profound chilling
effect on protected activity, and are void for vagueness due to the utter lack of clear
notice about the line between permissible and prohibited speech and expression.
Second, the University has created a “Bias Response Team” (BRT) that receives
complaints of “bias” and “bias incidents” from offended students and is tasked with
investigating and punishing those who commit such offenses. According to the
University, “[b]ias comes in many forms,” can be intentional or unintentional, and “can
be a hurtful action based on who someone is as a person.” Ex. F. at 3. In determining
whether a bias incident has occurred, “[t]he most important indication of bias is your own

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All exhibits cited in this brief are exhibits to the Declaration of Jeffrey M. Harris.
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feelings.” Id. (emphasis added). As a result, a student whose speech is seen by another
student as “hurtful” to his or her “feelings” may receive a knock on the door from a
team of University officials (some of whom may be law enforcement officers)
threatening to refer the student to formal disciplinary authorities unless he or she
submits to “restorative justice” or “individual education.” See Ex. I at 1; Ex. L. at 7. The
BRT and its highly subjective definitions of “bias” and “bias incident” pose a grave
threat to free expression at the University, and are unconstitutional under the doctrines
of overbreadth, vagueness, and prior restraints.
Speech First is likely to prevail on the merits of its claims under the First and
Fourteenth Amendments and readily meets the remaining preliminary-injunction
criteria. Deprivation of a core constitutional right, even for a brief period of time,
constitutes irreparable injury, and a preliminary injunction would not foreclose the
University from adopting policies that advance its legitimate interests without chilling
or burdening protected speech. There is no question, moreover, that the public has a
strong interest in ensuring the protection of speech and expression at state-funded
universities. Speech First thus respectfully requests that this Court grant a preliminary
injunction and reaffirm that the First Amendment applies with full force even to speech
the University deems “demeaning,” “bothersome,” or “hurtful.”

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BACKGROUND
I.

The University’s Expansive and Ill-Defined Bans on “Harassment,”
“Bullying,” and “Bias-Motivated Misconduct.”
Because the University is a public institution, its policies must comply with the

First and Fourteenth Amendments to the Constitution. Yet the University and its
officials have a long record of seeking to limit some students’ speech and expression in
order to prevent other students from taking offense. This Court previously enjoined
University officials from implementing an earlier iteration of a speech code. See Doe,
721 F. Supp. at 864-67 (holding that speech code prohibiting “verbal conduct” that
“victimizes” or “stigmatizes” certain groups was unconstitutionally overbroad in
violation of the First Amendment and void for vagueness under the Fourteenth
Amendment). Despite that holding, the University and its officials have continued to
maintain policies and take actions that have the purpose and effect of limiting speech
that certain students might find offensive.
The University’s Statement of Student Rights and Responsibilities (“Statement”)
“describes possible behaviors which are inconsistent with the values of the University
community.” Ex. A at 1. The Statement “outlines procedures to respond to such
behaviors,” and “suggests possible sanctions/ interventions which are intended to
educate and to safeguard members of the University Community.” Id. at 5. In short, the
Statement prohibits certain actions and sets forth procedures and remedies for alleged
violations. The University claims authority to punish misconduct that “occurs in the

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city of Ann Arbor, on University controlled property, or at University sponsored
events/programs.” Id. at 4. Unsurprisingly, the Statement provides that students may
be disciplined for conduct such as physically harming another person, illegally
possessing drugs or alcohol, falsifying records, theft, and vandalism. Id. at 3-4.
The Statement also prohibits “[h]arassing or bullying another person—
physically, verbally, or through other means.” Id. at 3. Although the Statement does not
define “harassment,” it does cite a definition of that term from the University’s “Expect
Respect” initiative, which is a program designed to create a “[c]ampus social climate”
that is “safe and inclusive.” Ex. C. That program defines “harassment” as “unwanted
negative attention perceived as intimidating, demeaning, or bothersome to an individual.”
Ex. B. at 6 (emphasis added). The Statement also cross-references Merriam-Webster’s
Dictionary, which defines “harassing” as “(1) to annoy persistently; (2) to create an
unpleasant or hostile situation, especially by uninvited or unwelcome verbal or physical
conduct.” Id. In other words, a student may violate the University’s prohibition on socalled “harassment” if he or she engages in “verbal[]” conduct (i.e., speech) that another
student perceives as being “demeaning,” “bothersome,” or “annoying.”
As for “bullying,” the only definition the University provides is a link to MerriamWebster’s Dictionary, which defines that term as: “(1) to frighten, hurt, or threaten (a
smaller weaker person), (2) to act like a bully toward (someone), (3) to cause (someone)
to do something by making threats or insults or by using force, (4) to treat abusively,
(5) to affect by means of force or coercion.” Id. A student could thus be reported,
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investigated, and punished for “bullying” if she “verbally” or through “other means”
engages in conduct that another student finds “frightening,” “abusive,” or “hurtful.”
Any student, faculty member, or staff member may submit a complaint to the
Office of Student Conflict Resolution (“OSCR”) alleging a violation of the Statement.
The OSCR will then investigate and decide whether to bring charges against the student.
A student who violates the Statement can suffer a wide range of punishments. The
OSCR can, among other things, formally reprimand the student; put the student on
probation; order the student to attend a class or perform “community tasks” that will
teach the student “why certain behavior is inappropriate”; suspend the student for a
specific time; or permanently expel the student from the University. Ex. A. at 9-10.
In April 2018, the University announced amendments to the Statement that will
take effect on July 1, 2018. Under those amendments, there will be a separate ban on
“bias-related misconduct,” which is defined as a violation of any of the other offenses
in the Statement that is “motivated by bias or prejudice,” including “behavior motivated
on the basis of any person’s identity as protected by the University of Michigan’s
Nondiscrimination Policy (race, color, national origin, age, marital status, sex, sexual
orientation, gender identity, gender expression, disability, religion, height, weight, or
veteran status).” Ex. K. Under this amendment, an action that violates the Statement
that is “motivated on the basis” of “bias” can be subject to two sanctions—one for the
underlying offense and one for the “bias.” Id.

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II.

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The University’s “Bias Response Team” and its Expansive and IllDefined Ban on “Bias Incidents.”
The University has further supplemented the bullying/harassment provisions of

the Statement with a “Bias Response Team” (BRT). The BRT is comprised of
University administrators and law enforcement, and may also include students and
“community representatives who serve the U-M community.” Ex. F. The BRT is tasked
with overseeing “the response and management of bias incidents.” Id.
Like the Statement’s bans on “harassment” and “bullying,” the University has
adopted a vague, open-ended, and subjective definition of “bias” that can encompass a
wide array of conduct, including speech and expression protected by the First
Amendment. The University defines “bias” as “a pre-formed negative opinion or attitude
toward a group of persons who possess common physical characteristics, such as skin
color; or cultural experiences, such as religion or national origin.” Ex. E (emphasis
added). Such “bias,” according to the University, “often stems from fear,
misunderstanding, hatred, and stereotypes, and may be intentional or unintentional.” Ex. F
(emphasis added). These definitions of “bias” encompass countless instances of
protected speech and expression on all manner of topics. Under the plain text of these
definitions, a student may be deemed to have acted with “bias” if, for example, she
gives a speech sharply criticizing the Catholic Church and its adherents for not allowing
women to become priests; this student has expressed a “negative opinion” or “attitude”
about a certain group of people based on their “cultural experience” of religion.

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The University further defines “bias incident” as “non-criminal activity
committed against a person or property that is motivated, in whole or in part, by the
offender’s bias against a race, color, ethnicity, national origin, sex, gender identity or
expression, sexual orientation, disability, age or religion.” Ex. E. The BRT’s website
similarly defines “bias incident” as “conduct that discriminates, stereotypes, excludes,
harasses, or harms anyone in our community based on their identity (such as race, color,
ethnicity, national origin, sex, gender identity or expression, sexual orientation,
disability, age, or religion.” Ex. F. The University has emphasized that “[b]ias comes in
many forms,” and “can be a hurtful action based on who someone is as a person.” Id.
at 3. That standard is completely subjective: according to the University, “[t]he most
important indication of bias is your own feelings.” Id. (emphasis added).
Returning to the example discussed above, the student who holds a negative
opinion of the Catholic Church and its adherents could be deemed to engage in a “bias
incident” if she gives a speech in the Diag or passes out fliers articulating her opinion
that the Church and its adherents are wrong to prohibit women from becoming priests.
The speech or fliers would be an “activity” based on this student’s “negative opinion”
of the Catholic Church that could be seen as “hurtful” to the “feelings” of students
who share the “cultural experience” of belonging to the Catholic faith.
The University has adopted an elaborate system through which “bias incidents”
are reported, investigated, and potentially punished by the BRT. Students can file
reports of “bias, intolerance, or discrimination” with the BRT anonymously or on the
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record. After receiving a report of “bias,” the BRT opens an investigation. The BRT is
comprised of representatives from various units within the University, many of whom
wield significant power over students. For example, the BRT includes representatives
from the Dean of Students Office, the OSCR (which is responsible for handling
disciplinary issues), the University Housing Office, and the Division of Public Safety
and Security (which conducts police and security operations on campus). See Ex. F at
1-2. The University widely promotes the BRT system and strongly encourages students
to report other students’ “expression of bias.”
When it receives a report of “bias,” the BRT conducts an investigation into the
incident. The University has stated unequivocally that students who engage in so-called
“bias incidents” may be found to have “violate[d] University policies or community
standards.” Ex. H. And the University has further emphasized that “bias incidents” will
be addressed through “a range of remedies that may include disciplinary action as well as
community education and dialogue.” Id. (emphasis added). Bias incidents may also
“result in individual education,” Ex. I, or “restorative justice,” Ex. L at 7.
The BRT publishes online a “Bias Incident Report Log” in which it documents
(at a high level of generality) its investigations and responses to incidents of “bias.” This
log identifies: (1) the date of the bias incident; (2) the “method of expression of bias”;
(3) the nature of the bias expressed; (4) the location of the bias incident; (5) and the
BRT’s response. In little more than a year, the BRT has investigated and responded to
more than 150 reports of “written,” “verbal,” “electronic,” and “other” “expressions
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of bias.” Ex. J. Those “expressions of bias” have occurred through numerous modes
of expression, both on and off campus, including posters, social media, whiteboards,
email, online posts, pictures on dorm-room doors, fliers, verbal comments, “statements
and drawings,” group chat or text, Twitter, articles published online, Facebook posts,
and “classroom behavior.” Id. The alleged “expressions of bias” have concerned a wide
array of subjects, including race, religion, sexual orientation, color, national origin, sex,
disability,

socio-economic

status,

organizational

affiliation,

political

status,

“race/politics,” “cultural appropriation,” “gender expression,” and “other” topics. Id.
In connection with those investigations, the BRT has acted aggressively to censor
what it considers “expression of bias.” For example, the BRT has taken down signs,
removed flyers, confronted faculty members, erased whiteboards, and interrogated
students accused of bias (whom the University calls “offenders”). Id.
The BRT has imposed various forms of punishment on students whose speech
purportedly expressed bias, including requiring students to attend “individual
education” or participate in “restorative justice.” See Ex. I; Ex. L at 7. For example,
Defendant Schlissel has made clear that certain actions “causing emotional harm to
impacted communities” will be treated as a violation of the Statement and will be
handled in conjunction with the OSCR. See Ex. L. at 7. Schlissel has stated that students
whose speech exhibits bias will face discipline ranging from “restorative justice” to
official punishment, such as suspensions, under the Statement. Id. at 7-8. According to
Schlissel, “[m]y job is to make sure that we have structures established and the right set
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of rules to make sure when bad events do happen, we can investigate them, attempt to
figure out who’s responsible and then, once we’ve done that, find the appropriate
punishment, be it restorative justice or, on the other extreme, sanctions against the
people who are responsible.” Id. at 8. Schlissel described “restorative justice” as a
process in which the students in question “learn from” the incident and are
“remediated.” Id.
III.

Speech First and This Litigation.
Plaintiff Speech First Inc. (“Speech First”) is a nationwide membership

organization of students, alumni, and others that is dedicated to preserving civil rights
secured by law, including the freedom of speech guaranteed by the First Amendment.
In particular, Speech First seeks to protect the rights of students and others at colleges
and universities, through litigation and other lawful means.
Speech First has several members who are current students at the University, in
a variety of different class years. See Neily Decl. ¶¶ 3-5. Speech First’s members want to
engage in open, vigorous, and provocative debate and discussion about a wide array of
often-controversial topics—including but not limited to politics, immigration, race, sex,
gender identity, religion, abortion, gun rights, and cultural issues—and they want to be
able to use humor, satire, and parody in their discussions both inside and outside of the
classroom. Id. Yet Speech First’s members are being chilled from openly articulating
their views due to a credible fear that they will be accused of “harassment” or “bullying”
under the Statement, or will be investigated and/or punished by the BRT for engaging
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in “bias incidents.” Id. Speech First has brought this suit to ensure that its members and
other students at the University will not face investigations or discipline for engaging in
the open and vigorous exchange of ideas that is at the core of the First Amendment
merely because a University official or another student finds their views “demeaning,”
“bothersome,” or “hurtful.” Id.
ARGUMENT
A plaintiff seeking a preliminary injunction must show that “he is likely to
succeed on the merits, that he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his favor, and that an injunction is
in the public interest.” Winter v. Nat. Resources Def. Council, 555 U.S. 7, 20 (2008).
I.

Speech First Is Likely To Prevail On The Merits Of Its Claims.
A.

The First Amendment Prohibits Vague and Overbroad Regulations
Capturing Substantial Amounts of Protected Speech.

“If there is a bedrock principle underlying the First Amendment, it is that the
government may not prohibit the expression of an idea simply because society finds the
idea offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414 (1989). The Supreme
Court has held time and again, both within and outside the school context, that the
government may not prohibit speech based on the “mere desire to avoid the discomfort
and unpleasantness that always accompany an unpopular viewpoint.” Tinker v. Des
Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 509 (1969); see also Street v. New York, 394
U.S. 576, 592 (1969) (“[T]he public expression of ideas may not be prohibited merely

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because the ideas are themselves offensive to some of their hearers.”); R.A.V. v. City of
St. Paul, Minn., 505 U.S. 377, 414 (1992) (“The mere fact that expressive activity causes
hurt feelings, offense, or resentment does not render the expression unprotected.”).
Moreover, humor, satire, and parody play an important role in a democratic society,
and “it is clear that our political discourse would have been considerably poorer without
them.” Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 55-56 (1988).
Relatedly, “regulations that prohibit speech on the basis of listener reaction alone
are unconstitutional both in public high school and university settings.” Bair v.
Shippensburg Univ., 280 F. Supp. 2d 357, 369 (M.D. Pa. 2003). The government may not
prohibit speech “based solely on the emotive impact that its offensive content may have
on a listener.” Saxe v. State College Area School Dist., 240 F.3d 200, 209 (3d Cir. 2001)
(Alito, J.); see also United States v. Playboy Entertainment Group, 529 U.S. 803, 812 (2000)
(regulation based on “the effect of the subject matter on [listeners]” is “the essence of
a content-based regulation”). Indeed, “[c]ommunications which provoke a response,
especially in the university setting, have historically been deemed an objective to be
sought after rather than a detriment to be avoided.” Bair, 280 F. Supp. 2d at 370-71. In
short, when a restriction on speech is intended to “shield the sensibilities of listeners,
the general rule is that the right of expression prevails, even where no less restrictive
alternative exists. We are expected to protect our own sensibilities ‘simply by averting
[our] eyes.’” Playboy Enterprises, 529 U.S. at 813.

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Under the “overbreadth” doctrine, a statute or regulation violates the First
Amendment—even if it has some constitutional applications—if it “so broad as to
‘chill’ the exercise of free speech and expression.” Dambrot v. Central Mich. Univ., 55 F.3d
1177, 1182 (6th Cir. 1995). In applying that standard, the court first considers whether
the challenged policy “reaches a substantial amount of constitutionally protected
speech.” Id.; see also Speet v. Schuette, 726 F.3d 867, 872 (6th Cir. 2013). The court then
determines whether the policy “provides fair notice of the standard of conduct to which
a citizen is held accountable,” or instead “leaves the definition of its terms to law
enforcement officers, and thereby invites arbitrary, discriminatory, and overzealous
enforcement.” Leonardson v. City of East Lansing, 896 F.2d 190, 195-96 (6th Cir. 1990).
B.

The Statement’s Bans on “Harassment,” “Bullying,” and “BiasRelated Misconduct” Are Unconstitutionally Overbroad and Void
for Vagueness.

The University’s Statement of Student Rights and Responsibilities—violation of
which can subject students to investigations and penalties up to and including
expulsion—prohibits “[h]arassing or bullying another person—physically, verbally, or
through other means.” Ex. A. at 3. On its face, there is no question this prohibition can
sweep in enormous amounts of protected speech and expression. Pro-choice students
may feel “harassed” by a demonstration by pro-life students that features photos of
aborted fetuses. Students who support the rights of undocumented immigrants may
feel “harassed” by expressions such as “Build the Wall!” and “Make America Great
Again!” Students hosting an event that is protested by other students will likely feel
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“harassed” by the protestors. Students who are devout Catholics may feel “harassed”
by students who distribute condoms in the dorms. And the definition of “bullying”
fares no better, as that amorphous term can encompass anything that “frighten[s],
“hurt[s],” or “threaten[s]” another student. Ex. B. at 6. Students who care deeply about
abortion rights or same-sex marriage may feel “frightened” or “threatened” by speech
urging the Supreme Court to overturn Roe v. Wade or Obergefell v. Hodges. The Statement’s
prohibitions on “harassment” and “bullying” plainly “reach[] a substantial amount of
constitutionally protected speech.” Dambrot, 55 F.3d at 1182.
The University’s “Expect Respect” initiative—which claims to promote a “safe
and inclusive” “[c]ampus social climate,” see Ex. C—has further clarified the meaning
of “harassment,” but this expanded definition only underscores its constitutional
infirmities. Under the Expect Respect definition, “harassment” entails “unwanted
negative attention perceived as intimidating, demeaning, or bothersome to an
individual.” Ex. B. at 6; Ex. E. The Statement also links to a definition from MerriamWebster’s Dictionary that defines “harassing” as: “(1) to annoy persistently; (2) to create
an unpleasant or hostile situation, especially by uninvited or unwelcome verbal or
physical conduct.” Ex. B. at 6. In other words, a student may violate the prohibition on
so-called “harassment” if he or she engages in “verbal[]” conduct (i.e., speech) that
another student perceives as being “demeaning,” “bothersome,” “annoying,” or
“unpleasant.”

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These definitions of “harassment” hit the unconstitutional trifecta of being
highly expansive, highly subjective, and hopelessly vague. Virtually any opinion or
political belief—as well as any use of humor, satire, or parody—will be perceived by
somebody as “demeaning,” “bothersome,” or “annoying.” To paraphrase the Sixth
Circuit, “[i]n order to determine what conduct will be considered [“harassment”] by the
university, one must make a subjective reference” based on the listener’s own
perception of the speech. Dambrot, 55 F.3d at 1184. And, “[a]bsent any requirement
akin to a showing of severity or pervasiveness—that is, a requirement that the conduct
objectively and subjectively creates a hostile environment or substantially interferes with an
individual’s work—the policy provides no shelter for core protected speech.” DeJohn v.
Temple Univ., 537 F.3d 301, 317-18 (3d Cir. 2008) (emphasis added); see also Doe, 721 F.
Supp. at 867 (noting subjective nature of words such as “victimize” and “stigmatize”).
In sum, the University’s conception of “harassment” not only “reaches a
substantial amount of constitutionally protected speech,” Dambrot, 55 F.3d at 1182, but
also utterly fails to provide “fair notice of the standard of conduct” to which students
will be held, Leonardson, 896 F.2d at 195-96. As then-Judge Alito emphasized in Saxe,
“[l]oosely worded anti-harassment laws may pose some of the same problems as the St.
Paul hate speech ordinance [in R.A.V.]: they may regulate deeply offensive and
potentially disruptive categories of speech based, at least in part, on subject matter and
viewpoint.” 240 F.3d at 208.

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On top of its already-vague prohibitions on “bullying” and “harassment,” the
University recently announced amendments to the Statement that will add a separate,
additional prohibition on “bias-related misconduct.” That term is defined as a violation
of any of the other enumerated offenses in the Statement (including “bullying” or
“harassment”) that is “motivated by bias or prejudice,” including “behavior motivated
on the basis of any person’s identity as protected by the University of Michigan’s
Nondiscrimination Policy….” Ex. K. Under this amendment, an action that violates
the Statement and is “motivated on the basis” of alleged “bias” can be subject to two
sanctions—one for the underlying offense and one for the “bias.” Id. As explained in
greater detail below, the University’s definitions of “bias” are every bit as amorphous
and subjective as its prohibitions on “harassment” and “bullying.” The new prohibition
on “bias-related misconduct” merely adds an unconstitutional enhancement to the
unconstitutional proscriptions on “harassment” and “bullying.”
The Statement’s prohibitions on “harassment,” “bullying,” and “bias-related
misconduct” are strikingly similar to other university speech codes that courts have
found to be unconstitutional. In Bair, for example, the university prohibited speech that
would “provoke, harass, intimidate, or harm another,” 280 F. Supp. 2d at 363, which
closely tracks Michigan’s prohibition on speech that is “intimidating, demeaning, or
bothersome to an individual.” Bair also involved a prohibition on “acts of intolerance”
that were “maliciously motivated,” which closely resembles Michigan’s prohibition on
“bias-related misconduct,” i.e., “behavior motivated on the basis of any person’s
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identity.” The court in Bair held that each of the challenged provisions, by its plain
terms, could extend to protected speech. See id. at 370-71. The prohibition on speech
that “provoke[s], harass[es], or intimidate[s]” was especially problematic because it
impermissibly turned on the listeners’ reaction to the speech. Id. But “[c]ommunications
which provoke a response, especially in the university setting have historically been
deemed an objective to be sought after rather than a detriment to be avoided.” Id. at
372; see also Sypniewski v. Warren Hills Regional Bd. Of Educ., 307 F.3d 243, 264 (3d Cir.
2002) (citing Saxe, 240 F.3d at 209) (“confining prohibited speech to that which
constitutes ‘harassment’ is not alone sufficient to ensure constitutionality … [Indeed],
‘harassment,’ when targeted on the basis of its expressive content, encompasses speech
within the area protected by the First Amendment”).
The Statement’s prohibitions on “bullying” and “harassment” also contain none
of the First Amendment safeguards that courts have cited in upholding other types of
university disciplinary policies. For example, in Marshall v. Ohio University, the court
rejected an overbreadth challenge to a university’s anti-harassment policy because the
policy required a showing that the individual’s actions were “objectively and subjectively
severe or pervasive.” 2015 WL 1179955 (S.D. Ohio 2015). Michigan’s policy, by
contrast, turns on the subjective perception of the offended student and contains no
requirement that the conduct be severe or pervasive. The absence of such safeguards is
often fatal to a university’s attempts to prohibit “harassment” or a “hostile
environment.” See DeJohn, 537 F.3d at 320 (“[U]nless harassment is qualified with a
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standard akin to a severe or pervasive requirement, a harassment policy may suppress
core protected speech.”); Saxe, 240 F.3d at 217 (noting absence of “any threshold
showing of severity or pervasiveness”).
The effect of the University’s amorphous bans on “bullying,” “harassment,” and
“bias-motivated misconduct” is to profoundly chill free speech and open discourse.
The University has “never articulated any principled way to distinguish sanctioned from
protected speech,” and “[s]tudents of common understanding [are] necessarily forced
to guess at whether a comment about a controversial issue would later be found to be
sanctionable.” Doe, at 721 F. Supp. at 867. A student who voices a controversial or
unpopular opinion—or who seeks to use humor or satire when discussing sensitive
topics—risks punishment up to and including expulsion if even one other student
perceives that speech as “demeaning,” “bothersome,” “annoying,” or “unpleasant.” Put
differently, students must be certain before speaking that their words will not be
perceived as offensive by even the most sensitive student on campus. Many students
will inevitably choose not to speak about controversial or sensitive topics rather than
risk investigation and punishment if another student takes offense at their words and
files a complaint alleging “bullying,” “harassment,” or “bias-motivated misconduct.”
C.

The Bias Response Team’s Ban on “Bias Incidents” Is
Unconstitutionally Overbroad and Void for Vagueness.

For similar reasons, the Bias Response Team’s prohibition on “bias incidents” is
grossly overbroad and poses a grave risk of chilling protected speech and expression.

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The University defines “bias” as “a pre-formed negative opinion or attitude toward a
group of persons who possess common physical characteristics, such as skin color; or
cultural experiences, such as religion or national origin.” Ex. E. Such “bias,” according
to the University, “often stems from fear, misunderstanding, hatred, and stereotypes,
and may be intentional or unintentional.” Ex. F. The University defines “bias incident”
as “non-criminal activity committed against a person or property that is motivated, in
whole or in part, by the offender’s bias against a race, color, ethnicity, national origin,
sex, gender identity or expression, sexual orientation, disability, age or religion.” Ex. E.
The BRT’s website similarly defines “bias incident” as “conduct that discriminates,
stereotypes, excludes, harasses, or harms anyone in our community based on their
identity (such as race, color, ethnicity, national origin, sex, gender identity or expression,
sexual orientation, disability, age, or religion.” Ex. F. at 1. The University has
emphasized that “[b]ias comes in many forms,” and “can be a hurtful action based on
who someone is as a person.” Id. at 3. According to the University, “[t]he most important
indication of bias is your own feelings.” Id. (emphasis added).
Needless to say, a prohibition that turns on the listener’s “own feelings”—and
that covers even unintentional “negative opinion[s] or attitude[s]”—is unconstitutionally
vague and overbroad. Like the University’s prohibitions on “harassment” and
“bullying,” “bias incidents” are in the eye of the beholder, and can unquestionably
encompass protected speech that merely causes another student to take offense. Speech
critical of certain tenets of the Catholic faith could be deemed “hurtful” to Catholics.
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Speech questioning whether a biological man can transition to become a woman could
be deemed “hurtful” or “exclusionary” to transgender students. Speech criticizing the
tactics of the #Blacklivesmatter movement could be deemed “hurtful” to AfricanAmerican students. Speech encouraging a tough policy towards illegal immigration
could be deemed “hurtful” to Latino students. Protected speech involving humor,
satire, or parody is also particularly likely to cause offense to some group of students
and thus be reported, investigated, and potentially punished as a “bias incident.”
The University’s definition of a “bias incident” suffers from the same flaws as
the policy the Third Circuit invalidated in Saxe. Just as the University defines “bias” as
a “negative opinion or attitude” about any group with shared “cultural experiences,”
Ex. E, the policy in Saxe similarly sought to prohibit “harassment” based on a person’s
“values” or “personal characteristics.” 240 F.3d at 202-03. To paraphrase then-Judge
Alito, “[b]y prohibiting disparaging speech directed at a person’s [“cultural
experiences”], the Policy strikes at the heart of moral and political discourse—the
lifeblood of constitutional self-government (and democratic education) and the core
concern of the First Amendment. That speech about [“cultural experiences”] may
offend is not cause for its prohibition, but rather the reason for its protection: ‘a
principal function of free speech under our system of government is to invite dispute.
It may indeed best serve its high purpose when it induces a condition of unrest, creates
dissatisfaction with conditions as they are, or even stirs people to anger.’” Id. at 210.

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Students voicing disfavored or controversial viewpoints credibly fear that their
actions will be reported to the BRT. The University has designed an elaborate system
in which students who believe they have been subject to “bias incidents” may file
complaints with the BRT (including anonymous complaints). The University widely
advertises this reporting system and encourages students to file reports. The offending
student is then investigated by representatives of the University’s disciplinary apparatus,
including the OSCR and the Division of Public Safety. The BRT has been summoned
to investigate “bias incidents” more than 150 times since April 2017. Ex. J. Students
found to have engaged in “bias incidents” can then face disciplinary action before the
OSCR as well as sanctions including “restorative justice” and “individual education.”
See, e.g., Ex. I; Ex. L at 7-8.
The BRT’s vague and overbroad definitions of “bias” and “bias incident” have
a profound chilling effect on speech and expression at the University. Indeed, the mere
existence of the BRT mechanism chills protected expression even apart from any
punishments that may result at the end of the process. See, e.g., Doe, 721 F. Supp. at 865
(regardless of whether students were formally punished for protected speech, the
University “forc[ed] the student to a hearing to answer for allegedly harassing
statements made in the course of academic discussion and research”). The University
has created and promoted a system in which students can file anonymous reports of
“bias incidents” under an amorphous definition based on anything that harms their
“feelings,” which will then lead a team of university officials to spring into action to
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investigate. The prospect of facing such an investigation will inevitably lead many
students to refrain from speaking altogether, to steer clear of controversial or sensitive
topics, or to speak about controversial matters only with students who already share
their views. This chilling of protected speech and expression will exist regardless of
whether a student is ultimately exonerated at the end of the BRT process.
A recent study found that bias response teams lead to “a surveillance state on
campus where students and faculty must guard their every utterance for fear of being
reported to and investigated by the administration.” FIRE, Bias Response Team Report
2017 at 28 (Feb. 2017), available at https://tinyurl.com/ycq8f8xu. The “posture taken
by many Bias Response Teams is all too likely to create profound risks to freedom of
expression, freedom of association, and academic freedom on campus.” Id. at 5; see also
Snyder & Khalid, The Rise of “Bias Response Teams” on Campus, The New Republic (Mar.
30, 2016), available at https://tinyurl.com/jmnxhyb (bias response teams “result in a
troubling silence: Students, staff, and faculty [are] afraid to speak their minds, and
individuals or groups [are] able to leverage bias reporting policies to shut down
unpopular or minority viewpoints”).
II.

Speech First Meets The Remaining Preliminary-Injunction Criteria.
If this Court concludes, as it should, that Speech First is likely to prevail on its

constitutional challenge to the Statement and the BRT, then the remaining elements of
the preliminary injunction analysis—irreparable harm, balancing of the equities, and the
public interest—all cut strongly in favor of granting preliminary relief. See, e.g., Bair, 280
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F. Supp. 2d at 373 (finding remaining preliminary injunction factors satisfied after
concluding that university’s speech code was likely unconstitutional); Monaghan v.
Sebelius, 916 F. Supp. 2d 802, 811-12 (E.D. Mich. 2012) (finding remaining factors
satisfied after finding likelihood of success on First Amendment claim).
A.

Speech First and its members will suffer irreparable harm in the absence

of preliminary injunctive relief. “The loss of First Amendment freedoms, for even
minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns,
427 U.S. 347, 373 (1976); see also Jones v. Caruso, 569 F.3d 258, 277 (6th Cir. 2009) (same);
G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994)
(“[V]iolations of [F]irst [A]mendment rights constitute per se irreparable injury.”).
B.

The balance of equities also tips overwhelmingly in favor of granting a

preliminary injunction. Plaintiff and its members obviously have a powerful interest in
ensuring the protection of open and vigorous discourse at the University without the
threat of investigation or punishment.
On the other side of the ledger, the University has no legitimate interest in
banning or chilling speech protected by the First Amendment, even if such speech is
“particularly hurtful to many.” Snyder v. Phelps, 562 U.S. 443, 456 (2011). Even if the
current prohibitions are enjoined as vague and/or overbroad, the University remains
“free to enact new regulations that are tailored so as to conform to First Amendment
jurisprudence.” Bair, 280 F. Supp. 2d at 373. For example, the University could adopt a
narrower definition of “harassment,” or could adopt a definition of “bullying” that
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tracks the “true threats” doctrine. See, e.g., Virginia v. Black, 538 U.S. 343, 360 (2003).
Even if this Court grants preliminary injunctive relief, the University will have adequate
time before the next school year to adopt new rules of conduct that advance the
University’s interests without trampling protected speech and expression.
C.

Finally, the impact of a preliminary injunction on the public interest also

turns in large part on whether the plaintiff’s First Amendment rights are likely to be
violated. “The public as a whole has a significant interest in ensuring equal protection
of the laws and protection of First Amendment liberties.” Dayton Area Visually Impaired
Persons, Inc. v. Fisher, 70 F.3d 1474, 1490 (6th Cir. 1995); see also G & V Lounge, 23 F.3d
at 1079. There is no question that the public has a strong interest in ensuring the
protection of speech and expression at state-funded universities.
CONCLUSION
This Court should grant Speech First’s motion and enjoin Defendants from: (1)
taking any actions to investigate, threaten, or punish students for violations of the
prohibitions on “harassment,” “bullying,” and “bias-related misconduct” set forth in
the Statement; and (2) using the Bias Response Team to investigate, threaten, or punish
students (including informal punishments such as “restorative justice” or “individual
education”) for “bias incidents.” Speech First respectfully asks that the Court expedite
resolution of this motion to the extent necessary to ensure that a decision by this Court
and by the Sixth Circuit, should either party decide to appeal this Court’s ruling, is
reached before the new school year begins on September 4, 2018.
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Respectfully submitted,
By:/s/ John A. Di Giacomo
Dated: May 11, 2018

John A. Di Giacomo (P73056)
REVISION LEGAL, PLLC
5024 Territorial Road
Grand Blanc, MI 48439
[phone]
[e-mail]
Local Counsel
William S. Consovoy (application for admission
forthcoming)
Jeffrey M. Harris (application for admission
forthcoming)
J. Michael Connolly (application for admission
forthcoming)
CONSOVOY MCCARTHY PARK PLLC
3301 Wilson Boulevard
Suite 700
Arlington, VA 22201
[phone]
Counsel for Plaintiff Speech First, Inc.

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CERTIFICATE OF SERVICE
I hereby certify that on May 11, 2018, I electronically filed the foregoing with the
Clerk of the Court using the ECF system. Pursuant to agreement with Defendants’
counsel, an electronic copy of the foregoing was emailed to Defendants’ counsel on
May 11, 2018.

By:/s/ John A. Di Giacomo
John A. Di Giacomo (P73056)
REVISION LEGAL, PLLC
5024 Territorial Road
Grand Blanc, MI 48439
[phone]
[e-mail]

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