More from today's Eleventh Circuit decision in Speech First, Inc. v. Cartwright (written by Judge Kevin Newsom and joined by Judge Stanley Marcus and District Judge Richard Story); seems quite right to me:
The bias-related-incidents policy creates a mechanism by which a UCF student can be anonymously accused of an act of "hate or bias"—i.e., an "offensive" act, even if "legal" and "unintentional," that is directed toward another based on any of a number characteristics that echo (but do not precisely mirror) those listed in the discriminatory-harassment policy. The JKRT "monitor[s]" and "track[s]" bias-related incidents, "coordinate[s] university resources," marshals a "comprehensive response[]," and, where necessary, coordinates "interventions" among affected parties….
The district court held that Speech First lacked standing to challenge the bias-related-incidents policy because, the court said, the JKRT couldn't punish students itself but, rather, could only refer them to other university actors for discipline. We hold that the district court erred in focusing so singularly on the JKRT's power to punish. The reason, already explained, is that a government actor can objectively chill speech—through its implementation of a policy—even without formally sanctioning it. Punishment is no doubt relevant to the objective-chill analysis, and may well be sufficient to prove the requisite chill, but analogous precedent makes clear that it is not decisive and, in any event, is not uniformly necessary.
The seminal case is Bantam Books, Inc. v. Sullivan (1963). There, the Supreme Court considered the constitutionality of certain actions of the "Rhode Island Commission to Encourage Morality in Youth," whose charge it was to "educate the public concerning any book, picture, pamphlet, ballad, printed paper or other thing containing obscene, indecent or impure language, or manifestly tending to the corruption of the youth." The commission's usual practice was to notify a bookseller "on official stationery that certain designated books or magazines distributed by him had been reviewed by the Commission and had been declared by a majority of its members to be objectionable for sale," to "thank[ him] in advance[] for his 'cooperation,'" to "remind[ him] of the Commission's duty to recommend to the Attorney General prosecution of purveyors of obscenity," and to inform him that "[c]opies of the lists of 'objectionable' publications were circulated to local police departments."
