Introduction

Speech First, Inc. v. Thomas L. Killeen, et al. (968 F.3d 628) is a pivotal case decided by the United States Court of Appeals for the Seventh Circuit on July 28, 2020. The plaintiff, Speech First, a national advocacy organization championing free speech on college campuses, sought a preliminary injunction against three policies implemented by the University of Illinois at Urbana-Champaign. These policies included the Bias Assessment and Response Team (BART) and Bias Incident Protocol (BIP), No Contact Directives (NCDs), and a prior approval rule pertaining to the distribution of election materials.

The core issues revolved around whether these university policies infringed upon the free speech rights of student members, compelling self-censorship and chilling protected expression. Central to the case was the question of whether Speech First had the necessary standing to challenge these policies and whether one of the challenged policies had become moot due to subsequent actions by the university.

Summary of the Judgment

The Seventh Circuit affirmed the district court's decision to deny Speech First's motion for a preliminary injunction. The court held that Speech First failed to demonstrate standing to challenge two of the three policies—the BART/BIP processes and the issuance of NCDs—because it did not provide sufficient evidence that its members faced a credible threat of enforcement or an objective chilling effect on their speech. Additionally, the court found that the challenge to the prior approval rule was moot since the university had repealed the provision shortly after the lawsuit was filed and had no intention of reinstating it.

A concurring and dissenting opinion by Circuit Judge Brennan agreed with the majority on the standing issue but disagreed regarding the mootness of the prior approval rule, arguing that the repeal did not meet the stringent criteria required to render the challenge moot.

Analysis

Precedents Cited

The court extensively referenced several key precedents to navigate the complex interplay between free speech rights and institutional policies. Notable among these were:

• LUJAN v. DEFENDERS OF WILDLIFE: Establishing the requirements for Article III standing.
• Bell v. Keating: Clarifying the necessity of an objectively reasonable chilling effect for standing.
• BANTAM BOOKS, INC. v. SULLIVAN: Differentiating between coercive government actions and benign policies.
• Abbott v. Pastides: Emphasizing the importance of demonstrating a credible threat of enforcement.
• Backpage.Com, LLC v. Dart: Highlighting the distinction between coercion and mere persuasion in government actions.
• Federation of Advertising Injury Representatives, Inc. v. City of Chicago: Addressing mootness when a policy is repealed.
• Friends of the Earth, Inc. v. Laidlaw Env. Serv. (TOC), Inc.: Setting the standard for when a case becomes moot.

These precedents collectively informed the court's approach to assessing whether Speech First met the standing requirements and whether the prior approval rule challenge was moot.

Legal Reasoning

The court's legal reasoning centered on two primary aspects: standing and mootness.

Standing: The court reiterated that to establish standing, Speech First needed to demonstrate a concrete and particularized injury, a causal connection between the injury and the university's policies, and a likelihood that a favorable court decision would remedy the injury. Speech First primarily relied on generalized claims of potential self-censorship and fear of enforcement without providing specific incidents or empirical evidence to substantiate these fears. In contrast, the university presented detailed affidavits demonstrating the lack of disciplinary authority within BART/BIP and the voluntary nature of meetings, undermining Speech First's claims of a credible threat of enforcement.

Mootness: Regarding the prior approval rule, the university had repealed the provision during the litigation. The majority court determined that this repeal rendered the challenge moot since the policy was no longer in effect, and there was no evidence to suggest its reinstatement. However, the dissenting opinion contested this, arguing that the repeal did not meet the "absolute clarity" required to deem the case moot and that the rapid repeal could potentially indicate a non-genuine cessation.

The majority relied on the premise that the university's action to formally remove the policy, coupled with its representations to the court, sufficiently addressed the mootness concern. The dissent, however, emphasized the possibility of the policy's reinstatement and the lack of a binding promise from the university to permanently discard the policy, thereby maintaining that the mootness argument was insufficient.

Impact

This judgment reinforces the stringent requirements for establishing standing in cases seeking preliminary injunctions, particularly in the context of First Amendment challenges on campus. Organizations like Speech First must provide concrete evidence of how specific policies directly and personally affect their members' expressive conduct. Moreover, the ruling underscores the importance of procedural formalities in policy changes and the weight courts place on legislative-like amendments when assessing mootness.

Future litigants will need to meticulously document instances of harm or potential harm to successfully argue for standing. Additionally, institutions aiming to modify speech-related policies must be aware that unilateral or rapid changes may still be subject to judicial scrutiny regarding their permanence and sincerity.

Complex Concepts Simplified

Standing

Standing refers to the legal ability of a party to demonstrate sufficient connection to and harm from the law or action challenged to support that party's participation in the case. In this context, Speech First needed to prove that its members were directly affected by the university's policies—either through actual threats of punishment or a reasonable fear that such policies would deter them from expressing their views.

Mootness

Mootness occurs when the issue at the heart of a lawsuit has been resolved or is no longer relevant, rendering the legal action unnecessary. Here, since the university had repealed the prior approval rule, Speech First's challenge to that specific policy was considered moot by the majority court.

Preliminary Injunction

A preliminary injunction is a temporary order made by a court to prohibit an action until a final decision is made. Speech First sought such an injunction to prevent the university from enforcing its speech-related policies during the litigation.

Conclusion

The decision in Speech First, Inc. v. Thomas L. Killeen, et al. serves as a crucial reminder of the high bar plaintiffs must meet to obtain preliminary injunctions in First Amendment cases. By affirming the denial of the preliminary injunction due to a lack of standing and deeming the challenge to the prior approval rule moot, the Seventh Circuit highlighted the necessity for detailed and concrete evidence in such litigation.

This judgment not only clarifies the standards for standing and mootness but also impacts how educational institutions craft and revise their speech policies. Ensuring that policies do not inadvertently infringe upon protected speech requires careful consideration and documentation to withstand potential legal challenges.

Moving forward, advocacy groups and universities alike must prioritize transparency and specificity when addressing speech-related concerns to foster environments that genuinely uphold free expression without overstepping constitutional boundaries.