Content Regulation / Censorship, Political Expression
Zhang v. Baidu.com, Inc.
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The United States Court of Appeal found that the advocacy organization Speech First had standing to bring a First Amendment challenge against the University of Michigan’s anti-bullying and anti-harassing policy for being overly broad and vague. Speech First had sought a preliminary injunction to block the enforcement of the policy and halt the activities of a Bias Response team on the grounds they stifled students’ protected speech, which the District Court denied. On Appeal, the Court found that activities of the Bias Response Team, such as the ability to refer bias incidents to the police, created an “objective chill” due to the implicit threat of negative consequences. Although the University removed the definitions of bullying and harassment under scrutiny, the Court found that the challenge could not be moot as there was insufficient evidence to prove that the University might not reenact the policies at a later date. The Court remanded the case to the District Court to reconsider the likelihood of its success and weigh the other factors against granting the injunction.
The Appellant, Speech First, is a freedom of speech advocacy organisation. Members of this organisation attend the University of Michigan (University). Speech First filed a complaint against the University’s anti-bullying and anti-harassing policy and Bias Response Team initiative (BRT) for allegedly stifling student’s protected speech because of its “over broad and vague prohibitions.”
The Defendant, the University of Michigan is a public entity as provided for in the Michigan constitution and is run by state officials. It acts as the executive branch of the State in many ways and is presided by elected Regents who are further responsible for appointing the University President. The University’s anti-bullying and anti-harassing policy, but not the definitions, are contained in the Statement of Student Rights and Responsibilities (Statement).[Page 2]
The Office of Student Conflict Resolution (OSCR), which investigates the violations of the Statement, posted on its website definitions of “harassing” and “bullying” which were drawn from Michigan State Law, University Policies and the Merriam Webster Dictionary. Speech First did not challenge the prohibition of harassing or bullying behavior, but only the use of the dictionary definition of the behaviors which it claimed were vague. The Merriam-Webster Dictionary definitions reads as follows:
Harassing has been defined as:
Bullying has been defined as:
However, these and the University definitions were removed from the website after the lawsuit was filed by Speech First. The other definitions derived from Michigan state law remained on the website and they have not been contended as unconstitutional by Speech First.
Speech First also challenged the Bias Response Team’s (BRT) initiative. The BRT’s website defines a “bias incident” as “conduct that discriminates, stereotypes, excludes, harasses or harms anyone in our community based on their identity (such as race, colour, ethnicity, national origin, sex, gender identity or expression, sexual orientation, disability, age or religion).” Speech First alleged that the definition was also “over broad” which could result in referrals or interventions that would intimidate students and hence “quash” their speech.
The BRT primarily educates the University community on issues related to bias, receives reports filed by students who allege bias, offers to meet with students about their reported incident, and maintains a log of reported bias incidents which is posted on the website page. [page 3] The Response Team does not make determinations about whether the reported conduct constitutes a bias incident and thus, it is not a punitive authority. It can, however, make referrals to police, OSCR, or other school resources such as counselling services. [Page 4]
Following the complaint, Speech First had also moved for a preliminary injunction in the District court to prohibit the University from first taking any actions to investigate, threaten or punish students for violations of the prohibitions on “harassment” “bullying” and “bias-related misconduct” and second using the Bias Response Team to investigate, threaten or punish students for “bias incidents”.
The district court for the Eastern District of Michigan at Flint denied the injunctive relief.
An appeal was filed by Speech First in the United States Court of Appeals for the Sixth Circuit against the denial of injunctive relief.
Judge McKeague and Judge Cook delivered the majority opinion of the Court.
The Court of Appeals, while reviewing the District court’s denial of preliminary injunction de novo, considered four factors as laid down in the case of Hunter v. Hamilton City Board Of Elections, 635 F. 3d 219, 233 (6th Cir. 2011).
These four factors were:
Thus, the central issue for determination before the Court was whether these four factors weigh in favour of granting or denying preliminary injunctive relief. [Page 5]
Previously, the District Court had concluded that Speech First was not likely to succeed on the merits of its claim against the Response Team because it lacked standing and that the claims challenging the policy were moot. [Page 5] The majority opinion disagreed with this view of the district court.
Whether the movant had a strong likelihood of success on the merits to have standing
Speech First argued that although the University had not violated Speech First’s constitutional rights, it had violated the rights of its members who attend the University and it therefore had an “associational standing” to bring the suit. Thus, the Court observed that the issue for determination here is whether the association’s members would have standing to sue in their own right.
Relying on Lujan v. Defs. Of Wildlife, 504 U.S. 555, 560-61 (1992), the Court observed that for litigants to have standing to sue in their own right, they must have suffered an “injury in fact” which is:
Further, the term “objective chill” is used to refer to such laws or regulations where direct injuries are produced. The Court, relying on Morrison v. Board of Education of Boyd City, 521 F. 3d 610 (6th Cir. 2008), stated that in order to have a standing the litigant alleging chill must establish that a concrete harm occurred or is imminent.
Whether Speech First had standing to challenge the BRT
The Court found Speech First’s members suffered an objective chill in the present case because of the functions performed by the Response Team, namely, the BRT had an ability to make referrals by informing the police or the OSCR of the reported conduct. These referrals thus lead to processes which could lead to punishments. Further, BRT’s open invitation to meet with students about bias incidents could also carry implicit threats of consequences, either reputational harm or administrative actions, if the student refused the invitation. [Page 7]
Therefore, Speech First had standing to challenge the Response Team.
Whether Speech First had standing to challenge the definitions of Bullying and Harassment
The Court rejected the University of Michigan’s argument that Speech First lacked standing because there was “no credible threat” or evidence of that students have been disciplined for protected speech. [page 8] The Court noted that the lack of discipline against students could also indicate that speech had already been chilled. Due to the lack of evidentiary support to show that students participating in protected speech would not be subject to disciplinary proceedings, the Court determined that there was a credible threat in the present case.
The Court also distinguished the present case from Morrison v. Board of Education. In Morrison damages were sought by a student against his high school policy which “prohibited students from making stigmatising or insulting comments regarding another student’s sexual orientation” which resulted in chilling of speech. It was observed that the present case is distinguishable from Morrison because the student in Morrison did not dispute the constitutionality of the school rule. Unlike Speech First, Morrison only challenged the application of rule to the student. In other words, Morrison was a case of as-applied pre-enforcement challenge which requires “some specific action on the part of the defendant in order for the litigant to demonstrate an injury-in-fact.” Whereas the present case was a case of a facial challenge, as Speech First had challenged the definitions of “harassment” and “bullying” for being overly broad.
Whether the claim challenging the definitions was moot
With regards to the issue of mootness, the Court relied on Powell v. McCormack, 395 U.S. 486, 496 (1969) to observe that “a case is moot when the issues presented are no longer “live” or the parties lack a legally cognizable interest in the outcome”. [Page 10]
Further, as laid down in the case of Friends of Earth v. Laidlaw Environmental Services, 528 U.S. 167, 189 (2000), “even in a case when a party has voluntarily ceased the allegedly unlawful behaviour a case might become moot if the subsequent events made it clear that the allegedly wrongful behaviour could not be reasonably expected to recur.”
In the present case, the challenged definitions were removed by the University. However, considering the totality of circumstances, there was no evidence to suggest that the University did not intend to reenact the challenged definitions. Further, the removal of the definitions took place after the complaint was filed, which increased the University’s burden to prove that the change was genuine. [page 13] The Court also noted that the University continued to defend its use of the challenged definitions. Thus, there was insufficient evidence to assure the Court that the University’s voluntary cessation was sincere, and that the impugned policies would not be re-enacted. Therefore, Speech First’s claim regarding the definition of “bullying” and ‘harassing” was not moot.
The Court, in light of its findings, remanded the case to the District Court. However, it declined Speech First’s request to instruct the District Court to issue the preliminary injunction on the ground that the District Court found that the three other preliminary injunction considerations could weigh against granting the injunction, and thus deferred to its judgment. Further, the Court did not affirm the District Court’s decision, as the majority opinion found that even if the three factors weighed against a preliminary injunction, the District Court could still grant one if it determined that Speech First had a strong likelihood of success on the claim of a constitutional violation. [Page 15]
Judge Helene N. White dissented.
Justice White observed that the District Court had correctly denied the preliminary injunction as there was no evidence to show that any of the anonymous students interacted with the BRT or that any such outreach would result in “concrete harm”. [Page 16]
Bias Response Team
With regards to the BRT, it was unclear whether the Team had referred any matter to the OSCR or police department and further, Speech First had not established how such a referral power established standing. Justice White also observed that it was not the Response Team per se which posed a threat of concrete harm, as it could only refer a “bias incident” to the OSCR or the police for determination.
There was no evidence to support the claim that a mere invitation from the BRT to meet could be threatening. Upon examination of the evidentiary records, it was observed that only one student had ever accepted the invitation to meet with the BRT about an incident, supporting the inference that students do not feel compelled to meet with them. [Page 18]
Justice White argued that Morrison was indistinguishable from the present case as, in Morrison, the policy under challenge prohibited students from making stigmatising or insulting comments about students’ sexual orientation. This policy was also later changed after the lawsuit was filed in order to allow anti-homosexual speech, with the restriction that the speech should not create an atmosphere of hostility from the perspective of the implicated student. Morrison had no standing to challenge the policy because there was an absence of a concrete act on the part of the Board and it thus, fell within the ambit of “subjective chill” which failed to substantiate an injury-in-fact for standing purpose.
Further, it was considered that it is a matter of record that the University does not punish students who engage only in protected speech and it has a long tradition of valuing student activism, freedom of expression and dissent.
With regards to Morrison being distinguishable because the plaintiff in that case brought only an as-applied challenge, whereas Speech First raises a facial challenge, the dissent opinion noted, while citing Midwest Media Prop. LLC v. Symmes Township, 503 F. 3d 456, 463 (6th Cir. 2007), “the doctrine of over breadth relies on a chill theory to permit a litigant- who already has standing by virtue of demonstrating a concrete harm-to challenge a rule that may only affect others.” Thus, Justice White concluded that the majority had not been able to persuasively distinguish the present case from Morrison.
Denial of the Preliminary Injunction
The dissent opinion affirmed the denial for preliminary injunction by the District Court as three preliminary injunction considerations weighed against Speech First. Relying on the case of Obama for Am. v. Hasted, 697 F. 3d 423, 436 (6th Cir. 2012), which stated that “when a party seeks a preliminary injunction on the basis of a potential constitutional violation, likelihood of success on the merits will often be the determinative factor,” it was further observed that there was no threat of current harm from the challenged definitions as they are no longer in effect. With respect to the challenged definitions, it cannot be presumed that there will be irreparable injury, substantial harm to others, or that public interest would be served by the issuance of the injunction as all that is alleged is a past constitutional injury. [Page 23]
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision of the Court of Appeal expands expression as it found, against the finding of District Court, Speech First had a strong likelihood of success on merits and its claims challenging the definition of “bullying” and “harassing” behaviour was not moot. Although a preliminary injunction was declined in the present case, the Court made an observation that out of the four factors, even if the other three factors i.e. irreparable injury, substantial harm to others and public interest weigh against a preliminary injunction, the district court may still grant a preliminary injunction if it determined that Speech First had a strong likelihood of success. Thus, in the light of the findings of Court of Appeal that there was a likelihood of success of Speech First, the case was remanded to the District Court for hearing.
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