Ross Abbott v. Harris Pastides, 900 F.3d 160

Background

In 2015 two student groups at the University of South Carolina (College Libertarians and Young Americans for Liberty) obtained approval to hold a "Free Speech Event" that included controversial displays (e.g., a swastika and a sign reading "wetback").
The University approved the event, it occurred without interference, but multiple students filed complaints with the Office of Equal Opportunity Programs (EOP) alleging offensive symbols and alleged sexist/racist statements by event sponsors.
EOP sent Ross Abbott (event sponsor) a letter asking him to meet to discuss the complaints and to refrain from contacting complainants; Abbott met with Assistant Director Carl Wells about two weeks later. Wells said no one had been charged and the Office was in "pre-investigation" mode; two weeks after the meeting EOP informed Abbott it would take no further action.
Abbott and the two student groups sued under § 1983 claiming (1) the University’s inquiry chilled their First Amendment rights (as-applied claim seeking damages) and (2) STAF 6.24 (the student harassment policy) is facially overbroad and vague (seeking injunctive relief).
The district court granted summary judgment to the University, holding (a) the inquiry did not violate the First Amendment and (b) plaintiffs lacked standing to pursue a facial challenge to STAF 6.24. The Fourth Circuit affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the University’s inquiry/meeting chilled plaintiffs’ speech so as to violate the First Amendment and permit damages	Abbott: the letter referring to a "Notice of Charge" and the required meeting reasonably caused self-censorship and a cognizable past injury	USC: the University approved the event, did not sanction plaintiffs, the meeting was a routine, minimally intrusive fact-gathering step and no constitutional violation occurred	Court: any chill was temporary and, even if it existed briefly, the inquiry was narrowly tailored to a compelling interest and did not violate the First Amendment; qualified immunity also protects defendants
Whether plaintiffs can recover damages for a past chilling effect without showing deterrence of a specific intended expression	Abbott: damages available for past chill even if prospective conduct was unperformed	USC: plaintiffs must show they were deterred from specific planned speech during the relevant period	Court: to recover damages for chill plaintiffs must show objective, non-speculative deterrence of a specific intended act; plaintiffs failed to do so
Whether the University’s inquiry was the least restrictive means and therefore failed strict scrutiny	Abbott: University could have screened complaints or interviewed complainants/witnesses first, avoiding burden on speakers	USC: the single confidential meeting was a narrowly tailored, minimally burdensome method to assess complaints, consistent with obligations to protect students	Court: the inquiry was narrowly tailored and permissible under strict scrutiny in light of the compelling interest in preventing unlawful harassment
Whether plaintiffs have standing to bring a facial challenge to STAF 6.24	Abbott: the inquiry and policy create a credible threat of future enforcement and self-censorship, so they can seek injunctive relief	USC: no credible threat—University approved the event, declined further action, and the policy expressly excludes academic speech; no past enforcement history against similar speech	Court: plaintiffs lack a credible threat of future enforcement and may not rely on past injury alone; therefore no standing for the facial injunction claim

Key Cases Cited

Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629 (recognition that actionable student-on-student harassment must be severe, pervasive, and objectively offensive)
Healy v. James, 408 U.S. 169 (First Amendment applies fully on college campuses)
Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105 (strict scrutiny for content-based speech restrictions)
Reed v. Town of Gilbert, 135 S. Ct. 2218 (definition and scrutiny of content-based regulations)
Pearson v. Callahan, 555 U.S. 223 (qualified immunity framework)
Laird v. Tatum, 408 U.S. 1 (discussion of chilling effect and standing for prospective relief)
Reyes v. City of Lynchburg, 300 F.3d 449 (Fourth Circuit recognition of damages claim for past chilling where specific deterrence shown)
Benham v. City of Charlotte, 635 F.3d 129 (chill must be objectively reasonable — "person of ordinary firmness" standard)
Cooksey v. Futrell, 721 F.3d 226 (administrative monitoring and explicit warnings can create objectively reasonable chill)
Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334 (credible-threat analysis for pre-enforcement challenges; administrative procedures can themselves be burdensome)