Speech First, Inc. v. Mark Schlissel, 939 F.3d 756

Background

Speech First, an advocacy group with student members at the University of Michigan, sued the University claiming its anti‑bullying/harassment provisions (as defined on an OSCR webpage) and the University’s Bias Response Team (BRT) abridge student First Amendment rights.
Speech First specifically challenged Merriam‑Webster–sourced definitions of “harassing” and “bullying” that had been posted on the OSCR website; the University removed those dictionary definitions after the complaint was filed but left statutory definitions intact.
The Bias Response Team is an informal campus unit that logs anonymized “bias incident” reports, offers support to reporters, may invite the accused to voluntary meetings, and can refer matters to OSCR or police but has no direct disciplinary authority.
Speech First sought a preliminary injunction barring the University from investigating, threatening, or punishing students under the harassment/bullying prohibitions and from using the BRT to investigate or punish students for bias incidents.
The district court denied the preliminary injunction, finding lack of standing to challenge the BRT and mootness as to the challenged dictionary definitions; the Sixth Circuit majority disagreed on both points and vacated and remanded for consideration of the merits.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Standing to challenge Bias Response Team	BRT’s referrals and invitations to meet create an objective chill because referrals can trigger OSCR/police processes and the meeting invitation implies threat	BRT lacks punitive power; referrals (if any) merely pass reports to entities already able to act; no evidence BRT has threatened or caused discipline	Court: Speech First has associational standing—BRT’s referral power and voluntary‑meeting practices create an objective chill sufficient at PI stage
Standing to challenge harassment/bullying definitions	Merriam‑Webster definitions are overbroad/vague and chill protected speech of members	No credible threat that members would be disciplined for protected speech; robust university free‑speech language and lack of sanctions against similar speech show no injury	Court: Speech First has associational standing to bring an overbreadth facial challenge
Mootness of definitions after removal	Removal was voluntary and timed to litigation; university hasn’t shown change is unlikely to recur	University argues it replaced definitions and senior officials approved new definitions, so claim is moot	Court: Not moot—voluntary removal after suit, lack of formal binding process to prevent reenactment, and continued defense of prior definitions mean dispute remains live
Preliminary injunction / relief	PI necessary to prevent chilling and enforcement while case proceeds	District court found other PI factors (irreparable harm, balance of harms, public interest) weighed against relief	Court: Vacated denial and remanded for district court to consider likelihood of success on the merits in light of standing and mootness rulings; declined to order PI itself

Key Cases Cited

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (Article III injury‑in‑fact requirement)
Laird v. Tatum, 408 U.S. 1 (1972) (distinguishing objective vs. subjective chill for standing)
Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013) (allegations of subjective chill insufficient for standing)
Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963) (governmental communications that operate as thinly veiled threats can chill speech)
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167 (2000) (voluntary cessation and mootness standard)
Los Angeles County v. Davis, 440 U.S. 625 (1979) (voluntary cessation does not automatically moot a case)
Village of Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620 (1980) (overbreadth doctrine in First Amendment context)
Morrison v. Bd. of Educ. of Boyd Cty., 521 F.3d 602 (6th Cir. 2008) (standing and chill analysis where policy later changed)
Dambrot v. Cent. Mich. Univ., 55 F.3d 1177 (6th Cir. 1995) (students may have standing to bring facial challenges to university harassment policies)
McGlone v. Bell, 681 F.3d 718 (6th Cir. 2012) (concrete, objective chill where campus officials took specific actions)
Bailey v. Callaghan, 715 F.3d 956 (6th Cir. 2013) (four preliminary‑injunction factors)
Hunter v. Hamilton Cty. Bd. of Elections, 635 F.3d 219 (6th Cir. 2011) (standard of review for PI determinations)