Free speech organizations urge court to reverse decision in University of South Carolina lawsuit
SOUTH CAROLINA — A half-dozen free speech groups are backing a University of South Carolina student who says his First Amendment rights were violated by university administrators.
"The Free Speech Advocates believe that to safeguard student civil liberties, courts must hold public universities accountable for their unconstitutional actions," stated an amicus brief filed Sept. 13 with the U.S. Court of Appeals, Fourth Circuit urging a reversal in the case of Abbott v. Pastides.
Lawyer David Shemano represented the Free Speech Advocates in filing the amicus brief. He volunteered for the case after being contacted by the Foundation for Individual Rights in Education.
FIRE let various lawyers know that the appeal was pending and several organizations, including the Student Press Law Center, were willing to submit a brief, but a lawyer was needed to take the lead. Shemano said he had been looking for opportunities to assist organizations on free speech issues.
"I've got a personal interest in free speech on campus," said Shemano, who is based in Los Angeles. "It's something that's important to me and so this was a good opportunity to help out on a worthy cause."
USC student Ross Abbott, Young Americans for Liberty at USC, and College Libertarians at USC held a free speech event on campus in November 2015. The event involved a display depicting targets of campus censorship, with the intent to draw attention to threats to free expression on college campuses.
According to a previous SPLC article, "one poster depicted a swastika in reference to a case at George Washington University where a student was suspended and temporarily removed from his housing after displaying a bronze swastika in his fraternity to educate his peers on the symbol’s origins. At the event, there was also a petition to support free speech on campus and a baby crib intended to represent safe spaces."
Prior to the event, Abbott provided the administration with the proper paperwork, was approved for the event and followed all the rules, including holding the event within USC’s “free speech zone.”
Several students filed discrimination complaints to USC officials. One complaint said that because the event-runners displayed the swastika they had engaged in discrimination. The person who filed the complaint also said that a friend felt unsafe on campus after being "violently triggered" by the image.
The day after the event, Carl Wells, assistant director of the Office of Equal Opportunity Programs, sent a notice to Abbott informing him about the complaints.
"The university, when they received those complaints, then started an investigation of the students who had already obtained permission to have their event," Shemano said.
Abbott was told he was not allowed to contact the complaintants or discuss the matter.
Shemano said the Abbott and other students involved in the event complied with the university, but told administrators that they couldn't be punished for the event because it was protected First Amendment speech. After the meeting, the university said it wouldn't be pursuing the matter further. He said from the university's perspective, that was the end of it.
"From the students' perspective that was not the end of it because they were subjected to this process and investigation for doing nothing other than exercising their First Amendment rights in a manner that had been approved by the university," Shemano said.
In February 2016, Abbott, Young Americans for Liberty at USC, and College Libertarians at USC filed a lawsuit against four university administrators: USC President Harris Pastides, Vice President for Student Affairs, Vice Provost and Dean of Students Dennis Pruitt, former executive assistant to USC president for Equal Opportunity programs Bobby Gist, and Assistant Director of the Office of Equal Opportunity Programs Carl Wells.
The lawsuit alleged that administrators at USC had violated their First Amendment rights by unconstitutionally applying USC policies to the plaintiffs in a way that chilled their speech. The plaintiffs argued that when the defendants required Abbott to attend the meeting with Wells, they created a hostile atmosphere for free expression on campus.
They asked the judge for an an order that would prevent the defendants from enforcing policies in a way that chills speech and make the university remove any record of the complaints.
The plaintiffs lost the case.
Shemano said the judge agreed that the free speech event was protected by the First Amendment and that subjecting students to investigations could discourage the students from exercising their free speech rights in the future. However, the judge said that because the university had a compelling interest in protecting students from harassment, the investigations were justified.
"We believe that's wrong," Shemano said. "A university does not have the right to subject a student to this process and this investigation, where the triggering event was the exercise of free speech rights."
After the plaintiffs lost at trial, they decided to appeal the court's decision. They filed an opening brief on Sept. 6, with the amicus brief following soon after. The defendants will submit their opening brief within the next couple of weeks after which the court will set a date to hear oral arguments.
The amicus brief was filed jointly by the ACLU of South Carolina, DKT Liberty Project, Individual Rights Foundation, National Coalition Against Censorship, Reason Foundation and SPLC on Sept. 13, filing collectively as the Free Speech Advocates.
In the brief, the Free Speech Advocates argued that actions taken against the plaintiff follow the trend of threatening free speech rights of public university students.
The Supreme Court ruled in Gordon v. Marrone that investigating free expression by students still has a chilling effect on their speech even if no official punishment is given. By making Abbott sit down for a meeting about the event, the university limited his rights to free expression.
"The process will become the punishment, and the First Amendment rights of students will be significantly diminished," the brief read.
Shemano said that even if the university decides at the end of such an inquisitorial investigation that it will not punish students, the students have still gone through an intimidating process.
"Just going through that process will have a tendency to chill students from speaking," Shemano said. "That's the point. . .We don't want people to be intimidated from expressing views for fear that someone's going to make a complaint about them and then subject them to this very inquisitive process."
The Free Speech Advocates said this sort of clash between students' First Amendment rights and administrators' efforts to protect students isn’t new.
"What is new is the brazenness of administrators knowingly and willfully refusing to follow Supreme Court precedent," the brief reads. "As fast as lower courts invalidate university policies that unconstitutionally restrict student speech, new policies are imposed that are designed to restrict protected speech."
The Free Speech Advocates argue that the District Court’s ruling "eviscerates" the First Amendment right of the plaintiffs and all students to be free from investigations brought on by protected speech.
"We're very concerned that this case essentially gives administrators a kind of get out of jail free card," Shemano said.
He said the case makes it clear to administrators that all they need for justification in investigating students for protected speech is for someone to make a complaint about speech being offensive or harassing.
"As long as they have that as the triggering event, then the administrators can do whatever investigation they want and burden the student and there's no consequence," Shemano said.
*Correction: A previous version of this story listed the attorney involved as David Shermano. His name is actually David Shemano.
SPLC staff writer Emily Goodell can be reached by email or (202) 478-1926.
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