An excerpt 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), which generally strikes me as quite right:
[In] determining the propriety of preliminary injunctive relief[, we consider, among other things, whether plaintiff has shown a] substantial likelihood of success on the merits ….
The discriminatory-harassment policy is almost certainly unconstitutionally overbroad…. [T]he policy (1) prohibits a wide range of "verbal, physical, electronic, and other" expression concerning any of (depending on how you count) some 25 or so characteristics; (2) states that prohibited speech "may take many forms, including verbal acts, name-calling, graphic or written statements" and even "other conduct that may be humiliating"; (3) employs a gestaltish "totality of known circumstances" approach to determine whether particular speech, for instance, "unreasonably alters" another student's educational experience; and (4) reaches not only a student's own speech, but also her conduct "encouraging," "condoning," or "failing to intervene" to stop another student's speech.
The policy, in short, is staggeringly broad, and any number of statements—some of which are undoubtedly protected by the First Amendment—could qualify for prohibition under its sweeping standards. To take a few obvious examples, the policy targets "verbal, physical, electronic or other conduct" based on "race," "ethnicity," "religion [or] non-religion," "sex," and "political affiliation." Among the views that Speech First's members have said they want to advocate are that "abortion is immoral," that the government "should not be able to force religious organizations to recognize marriages with which they disagree," that "affirmative action is deeply unfair," that "a man cannot become a woman because he 'feels' like one," that "illegal immigration is dangerous," and that "the Palestinian movement is anti-Semitic."
