Speech First, Inc. v. Timothy L. Killeen
968 F.3d 628
| 7th Cir. | 2020Background
- Speech First sued University of Illinois administrators on behalf of four anonymous students, challenging three campus policies as chilling political speech: (1) Bias Assessment and Response Team (BART) and University Housing Bias Incident Protocol (BIP); (2) No Contact Directives (NCDs); and (3) a Student Code prior-approval rule for non‑campus election materials.
- Speech First moved for a preliminary injunction but submitted only a short, second‑hand declaration from its national president (Nicole Neily) based on unnamed students; no student affidavit with first‑hand, particularized facts was offered.
- The University submitted multiple detailed affidavits from administrators describing BART/BIP as voluntary, non‑disciplinary processes (no sanctioning power), NCDs as imposed only to enforce the Student Code to prevent misconduct, and that the prior‑approval rule had never been enforced and was formally repealed after litigation began.
- The district court denied the preliminary injunction, finding Speech First lacked standing to challenge BART/BIP and NCDs and that the prior‑approval claim was moot; the Seventh Circuit affirmed.
- The court emphasized Article III standing requirements for pre‑enforcement First Amendment challenges: either a credible threat of enforcement or an objectively reasonable chilling effect must be shown with particularized facts; Speech First’s evidence was held insufficient.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to challenge BART/BIP | BART/BIP programs chill students’ speech because outreach, reporting, and annual reports deter expression and may trigger referrals to discipline or police. | BART/BIP are voluntary, anonymize reports, lack sanctioning authority, and only refer conduct that independently violates law or Student Code; most invitees decline meetings and suffer no consequences. | No standing—Speech First failed to show a credible threat of enforcement or a particularized, objective chilling effect. |
| Standing to challenge No Contact Directives (NCDs) | NCDs can be imposed broadly and thus chill speech; policy text lacks clear limits. | NCDs are issued to enforce the Student Code or prevent imminent violations/violence; statistics show they are not imposed for speech alone and do not bar public commentary about the other party. | No standing—record shows NCDs are applied to prevent or respond to misconduct, not to punish protected speech; no particularized fear shown. |
| Mootness of prior‑approval rule (§2‑407) | Repeal was tactical and reversible; repeal occurred after suit, so controversy persists. | The University formally amended the Student Code, eliminated §2‑407, and represented it does not intend to reenact it. | Moot—the University, as a public actor, formally repealed the provision and represented it will not restore it; no evidence it was ever enforced. |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (standing requires concrete, particularized, actual or imminent injury)
- Susan B. Anthony List v. Driehaus, 573 U.S. 149 (pre‑enforcement First Amendment challenges may proceed without prior enforcement if credible threat exists)
- Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289 (credible threat of prosecution required for pre‑enforcement relief)
- Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (injury must be concrete and particularized)
- Laird v. Tatum, 408 U.S. 1 (mere existence of government investigatory system insufficient; subjective chill not enough)
- Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (official notices can be “thinly veiled threats” and thus coercive)
- Backpage.com, LLC v. Dart, 807 F.3d 229 (official coercive letters can chill conduct even without formal authority)
- Abbott v. Pastides, 900 F.3d 160 (university investigatory letters/meetings do not automatically create standing absent significant burden)
- Center for Individual Freedom v. Madigan, 697 F.3d 464 (chilling effect can be cognizable injury in pre‑enforcement First Amendment cases)
- Bell v. Keating, 697 F.3d 445 (plaintiff must substantiate a concrete, particularized chilling effect)
- Speech First, Inc. v. Schlissel, 939 F.3d 756 (6th Cir.) (contrast on standing re: university response teams)
- Friends of the Earth, Inc. v. Laidlaw Env. Serv., 528 U.S. 167 (voluntary cessation mootness test: defendant must show wrongful behavior cannot reasonably be expected to recur)