REVISED October 30, 2020

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-50529

SPEECH FIRST, INCORPORATED,

Plaintiff - Appellant

v.

GREGORY L. FENVES, In His Official Capacity as 

President of the University of Texas at Austin,

Defendant - Appellee

Appeal from the United States District Court

for the Western District of Texas

Before KING, JONES, and COSTA, Circuit Judges.1

EDITH H. JONES, Circuit Judge:

On behalf of a group of students, Speech First, Inc., appeals the dismissal 

of its First and Fourteenth Amendment challenges to several policies that 

intend to regulate speech at the University of Texas at Austin. After Speech 

First sought a preliminary injunction against enforcement of these policies, 

and the University responded, the district court dismissed the case on the basis

that Speech First lacked standing. This conclusion was mistaken. The chilling 

effect of allegedly vague regulations, coupled with a range of potential 

1 Judge Costa concurs in the judgment.

United States Court of Appeals

Fifth Circuit

FILED

October 28, 2020

Lyle W. Cayce

Clerk

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penalties for violating the regulations, was, as other courts have held,2

sufficient “injury” to ensure that Speech First “has a ‘personal stake in the 

outcome of the controversy.’” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 

158, 134 S. Ct. 2334, 2341 (2014) (quoting Warth v. Seldin, 422 U.S. 490, 498, 

95 S. Ct. 2197, 2205 (1975)).

BACKGROUND

Speech First, Inc., (“Speech First”) is an organization of free-speech 

advocates that includes students at the University of Texas at Austin (“the 

University”). Speech First sued the Defendant-Appellee, Gregory L. Fenves, 

in his official capacity as president of the University, in December 2018. At 

that time, the University had promulgated four policies governing students’ 

speech: (1) the 2018-2019 General Information Catalog, Appendix C, 

Institutional Rules on Students Services and Activities; (2) the Acceptable Use 

Policy for University Students (last revised in 2015); (3) the 2018-2019

Residence Hall Manual; and (4) the Handbook of Operating Procedures

(revised no later than March 2017). Here are the pertinent portions of the 

regulations.

1. The Institutional Rules

Fenves describes the Institutional Rules as “bedrock standards to which 

all University community members must adhere.” The Rules’ Chapter 13 is 

titled “Speech, Expression, and Assembly,” and begins generally, declaring the

“freedoms of speech, expression, and assembly” to be “fundamental rights of all 

persons.” Section 13-101. This section pronounces students’ (and others’) 

freedom to “express their views . . . on any topic . . . subject only to rules 

2 See, e.g., Dambrot v. Central Mich. Univ., 55 F.3d 1177, 1182 (6th Cir. 1995) 

(affirming that campus discriminatory harassment speech policy is, on its face, 

unconstitutionally overbroad and vague, after district court found that students had standing 

to sue despite lack of enforcement against them).

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necessary to preserve the equal rights of others and the other functions of the 

University.” The section disclaims viewpoint discrimination “[e]xcept as 

expressly authorized by subchapter 13-200 [titled, “Prohibited Expression”].

In the next subchapter, “Prohibited Expression” includes paragraphs 

covering obscenity, defamation, and incitement to imminent violations of law. 

By far the longest prohibition covers “Harassment,” which is the “mak[ing], 

distribut[ing], or display[ing] on the campus any statement that constitutes 

verbal harassment of another.” “Verbal harassment” is defined as “hostile or 

offensive speech, oral, written, or symbolic,” that:

A. is not necessary to the expression of any idea described in the 

following subsection [“an argument for or against the substance 

of any political, religious, philosophical, ideological, or academic 

idea is not verbal harassment even if some listeners are 

offended by the argument or idea”];

B. is sufficiently severe, pervasive, or persistent to create an 

objectively hostile environment that interferes with or 

diminishes the victim’s ability to participate in or benefit from 

the services, activities, or privileges provided by the University; 

and

C. personally describes or is personally directed to one or more 

specific individuals.

The Rules elaborate that “[v]erbal harassment may consist of threats, 

insults, epithets, ridicule, [and] personal attacks,” and “is often based on the 

victim’s appearance, personal characteristics, or group membership, including 

but not limited to race, color, religion, national origin, gender, age, disability, 

citizenship, veteran status, sexual orientation, gender identity or gender 

expression, ideology, political views, or political affiliation.”

Under the Rules, the Dean of Students has primary authority and 

responsibility for the administration of student discipline, but other University 

actors play various roles in responding to particular types of alleged violations. 

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Disciplinary sanctions range from written warning to suspension, expulsion, 

and the denial of a degree.

2. Acceptable Use Policy

The Acceptable Use Policy outlines permitted and prohibited uses of the 

information technology devices and systems provided and maintained by the 

University. Under the Policy “[a]ll university students granted access to or use 

of university Information Resources must be aware of and agree to abide by 

[certain] acceptable use requirements.” Among these “requirements” is:

 5.6 Be civil. Do not send rude or harassing correspondence.

1. If someone asks you to stop communicating with him or her, you 

should. If you fail to do so, the person can file a complaint and you 

can be disciplined.

2. If you ever feel that you are being harassed, university staff 

members will assist you in filing a complaint. . . . 

“The authoritative source on [the Acceptable Use Policy] and 

responsibility for its implementation rests with the Office of the Associate Vice 

President and Chief Information Officer,” although other offices may be 

involved in discipline relating to the requirements. The Policy provides a nonexhaustive list of “[p]unishment[s] for infractions of [the requirements],” 

ranging from “[v]erbal warnings” to “[s]uspension from the university” or

“[c]riminal prosecution.” The Policy notes that suspension from the University 

happens to “several people each semester.”

On the other hand, the Policy notes, “In general, expressions of opinion 

by members of the university community that do not otherwise violate state 

and federal laws or university rules are protected as ‘free speech.’” Also: 

“Disagreements between people, even heated arguments, unless threatening 

or otherwise unlawful, are not considered violations. UT Austin does, however, 

strongly encourage all its users to be polite and courteous.”

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3. Residence Hall Manual

The “Personal Responsibility and Student Conduct” section of the 

Residence Hall Manual includes sections on “Harassment” and “Incivility.”

Under “Harassment,” the University states a policy “to maintain an 

educational environment free from harassment and intimidation” and states a 

related “commit[ment] to responding appropriately to acts of racism, sexism, 

heterosexism, cissexism, ageism, ableism, and any other force that seeks to 

suppress another individual or group of individuals.” “When acts of 

harassment or intimidation occur in the residence hall environment, the 

Residence Life staff, in conjunction with the Residence Hall Council, may lead 

a floor or hall meeting to discuss the incident and decide, as a community, 

appropriate steps that need to be taken to address the incident.” More 

generally, “[r]esidents who are suspected to have engaged in harassment as 

defined in the Institutional Rules will be referred to the Dean of Students for 

possible disciplinary action.”

Immediately following, under “Incivility,” the University states:

Students are expected to behave in a civil manner that is respectful 

of their community and does not disrupt academic or residential 

activity. Uncivil behaviors and language that interfere with the 

privacy, health, welfare, individuality, or safety of other persons 

are not permitted.

At the end of the “Personal Responsibility and Student Conduct” section, 

there is a subsection on the “Conduct Process,” which explains the process for 

“cases that remain in Housing for adjudication.” This process may result in 

“Housing Sanctions,” which are “educational measure[s] implemented by the 

Housing Conduct Board or Residence Hall Conduct Administrator designed to 

affect [sic] a change in behavior and to help the student understand how their

behavior impacted others in the residence hall community.” “Sanctions” might 

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include “loss of privileges,” “assign[ments]” such as “on-line educational

modules, meetings with University staff members, educational/reflection 

papers, poster assignments, or presentations at hall meetings,” or 

“administrative sanctions” such as a forced room change, fine, or bar on the 

student’s record.

4. Hate and Bias Incidents Policy and CCRT

Finally, within the University’s Handbook of operating procedures is the 

“Hate and Bias Incidents” policy. According to its “Policy Statement,” the 

University “unequivocally condemns and prohibits . . . harassment,” “is 

committed to an academic and work environment free from acts of intolerance, 

hate, bias or prejudice,” and “is committed to the principles of free inquiry and 

expression and is dedicated to creating an environment where the expansion 

of knowledge and the freedom to exchange ideas is safeguarded.”

The Hate and Bias Incidents policy describes verbal harassment in the 

same language as the Institutional Rules. It specifies that individuals may 

report threatened or actual “harassment” to the Office of the Dean of Students 

or the Office of Inclusion and Equity.

The policy’s “Responsibilities & Procedures” section includes a “Campus 

Climate Incident” subsection, which states:

The University strongly encourages individuals who believe they 

have been discriminated against or have experienced threatened 

or actual violence on the basis of their race, color, religion, national 

origin, gender, gender identity or gender expression, age, 

disability, citizenship, veteran status, sexual orientation, ideology, 

political views, or political affiliation to report such incidents as 

provided in this policy.

Individuals may report a campus climate incident to the 

University’s Campus Climate Response Team by clicking on the 

“Report a Bias Incident Campus Climate Response Team” button

. . . . Individuals may report concerns such as a student 

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organization hosting a party with a racist theme, derogatory 

graffiti regarding sexual orientation or gender identity and 

expression, malicious threats that intimidate another person

because of his or her religion or concerns that someone has created 

a hostile or offensive classroom environment.

The Campus Climate Response Team (“CCRT”) was instituted in 2011 

after an investigation into whether the university’s dispute resolution 

procedures were sufficient to handle outbreaks of “hateful or violent speech.” 

The CCRT is described as “a university-wide strategy resource team that 

develops and facilitates the implementation of appropriate responses to 

campus climate incidents impacting the UT Austin community.” “[C]ore 

functions” of the CCRT include “[g]athering information and managing the 

specific incident,” “[s]upporting individuals involved in an incident,” 

“[i]dentifying and connecting with appropriate support services,” “[e]valuating 

the response process post incident,” and “[c]oordinating, when appropriate, 

activities with other campus-wide entities, especially those involved with crisis 

management.” Last, the University hopes that “through the work of the CCRT, 

potential gaps in UT Austin policies and procedures that may impede the 

university’s ability to minimize campus climate incidents may be addressed.”

The CCRT acts in response to campus climate incident reports, which 

may be filed online by the “victim” of an alleged incident, a witness, or any 

third party “who was informed of the incident but was not present at the time 

of its occurrence.” The reports may be anonymous. Upon filing, usually online, 

the report is examined by the CCRT Lead Team “to determine whether the 

situation, as reported, falls within the parameters of a campus climate incident 

or whether the incident should be referred to other response teams or offices.”

CCRT Lead Team members “will also determine if there is a possible violation 

of the [Institutional Rules].” Among other responses, the CCRT may decide to 

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provide “support and information to student(s), staff or faculty who initiated 

the incident.”

Following the provision relating to the CCRT, the Hate and Bias 

Incidents Policy (re)authorizes the sanctions listed in the Institutional Rules 

and assures that “a discriminatory purpose will be treated as an aggravating 

factor for the purpose of determining the appropriate sanction(s).”

District Court Proceedings

Speech First challenged all of these policies on their face. Nicole Neily, 

the president of Speech First, stated in a sworn declaration that the 

organization’s members “hold a wide array of different views and opinions on 

matters such as politics, race, religion, gender identity, abortion, gun rights, 

immigration, foreign affairs, and countless other sensitive and controversial 

topics.” She stated further that Speech First’s members at the University 

“want to be able to have open and robust intellectual debates and discussion 

about these issues in their dormitories, on campus, online, and in the City of 

Austin,” but they are “afraid to voice their views out of fear that their speech 

may be considered ‘offensive,’ ‘biased,’ ‘rude,’ ‘uncivil,’ or ‘harassing.’” That is, 

they “fear that they will be investigated or punished by the University for 

engaging in speech or expression that is protected by the First Amendment.”

In its complaint, Speech First described more specifically the views of its 

student-members at the University. For example, it stated that one studentmember considers herself a “Tea Party conservative,” “strongly supports 

Israel, believes in a race-blind society, supports President Trump, is pro-life, 

and supports the border wall.” Another student-member “strongly supports 

the Second Amendment right to keep and bear arms, believes in a race-blind 

society, and has serious concerns that the ‘Me Too’ movement will erode due 

process.” He thinks “affirmative action should be prohibited and that Justice 

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Brett Kavanaugh was innocent of the accusations made against him and was 

properly confirmed to the U.S. Supreme Court.” A third student-member 

“believes that the breakdown of the nuclear family has had many negative 

effects on society, he is strongly pro-life, he strongly supports the Second 

Amendment, and he believes that Justice Kavanaugh was treated unfairly 

during his confirmation proceedings.”

Speech First sought a declaratory judgment that “the University’s 

prohibition on ‘verbal harassment,’’’ its “prohibitions on incivility, rudeness, 

and harassment in section 5.6 of the Acceptable Use Policy,” and its 

“prohibitions on harassment, intimidation, and incivility in the Residence Hall 

Manual” violate the First and Fourteenth Amendments. It also sought a 

declaratory judgment that “the CCRT and its prohibitions on ‘bias incidents’ 

and ‘campus climate incidents’ violate the First and Fourteenth Amendments.” 

Speech First sought a permanent injunction prohibiting University officials 

from “taking any actions to investigate, threaten, or punish students for 

violations of the [allegedly unconstitutional policies]” and from “using the 

CCRT to investigate, threaten, or punish students (including informal 

punishments) for ‘bias incidents’ or ‘campus climate incidents.’”

Soon after filing its complaint, Speech First moved for a preliminary 

injunction against enforcement of the challenged policies and against use of 

the CCRT to investigate, log, threaten, or punish students for bias incidents. 

The University opposed the motion and attached declarations from a number 

of University officials. The court convened a non-evidentiary hearing directed 

at the preliminary injunction motion alone.

A couple months later, the court issued an opinion dismissing Speech 

First’s case for lack of standing. The court ruled that Speech First had failed 

to present “specific evidence of the speech in which the students wish to 

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engage,” leaving the court unable to determine whether the students “have an 

intention to engage in speech that is prohibited or arguably covered by the 

challenged policies.” The court discerned “no evidence that any University 

students . . . have been disciplined, sanctioned, or investigated for their 

speech,” and thus no “credible threat of enforcement of the challenged policies.” 

Concluding that Speech First failed to make a clear showing of standing and 

thus lacked standing to sue, the court not only denied the preliminary 

injunction but dismissed the case.

Speech First filed its timely notice of appeal on June 6, 2019. Numerous 

amici filed briefs in support of Speech First. Unexpectedly, in August, pending 

appeal, the University amended its policies. First, it changed the prohibition 

on harassment in the Institutional Rules from banning “hostile or offensive

speech” that is “severe, pervasive, or offensive” to banning “hostile or 

threatening” speech that is “severe, pervasive, and objectively offensive”

(emphasis added). Second, the University eliminated the Acceptable Use 

Policy’s references to “civil” and “[not] rude or harassing correspondence.” 

Third, the University eliminated the Residence Hall Manual’s prohibition on 

“uncivil behaviors and language” and redefined the Manual’s harassment rule 

to match strictly the Institutional Rules. See The University of Texas at 

Austin, 2019 - 2020 Residence Hall Manual 16 (Aug. 29, 2019), 

https://housing.utexas.edu/sites/default/files

/ResidenceHallManual_ 10182019.pdf. Fourth, the University changed the 

Manual’s disciplinary process for harassment in order to channel all 

allegations of harassment directly to the Dean of Students, thus eliminating 

the separate Housing disciplinary process. See id.

The University did not change either the CCRT or the Hate and Bias 

Incidents Policy, according to which the University continues to “unequivocally 

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condemn[] and prohibit[] . . . harassment,” defined as “hostile or offensive 

speech” that is “sufficiently severe, pervasive, or offensive so as to interfere 

with an individual or group’s academic or work performance, or to create a 

hostile work or academic environment.” The University of Texas at Austin, 

Hate and Bias Incidents Policy (Mar 8, 2017), 

https://policies.utexas.edu/policies/hate-and-bias-incidents. The policy 

remains enforceable as originally written. Students are “strongly 

encourage[d]” to report such speech to the CCRT. Id.

DISCUSSION

On appeal, Speech First seeks, at least, to reverse the district court’s 

dismissal for lack of standing. The University supports dismissal, but also 

contends that its policy amendments render moot appellant’s challenges to the 

original policies. We start with mootness. 

I. Mootness

Because “the University consolidated and revised its policies governing 

expressive activities in time for the 2019–20 school year,” Fenves contends, 

“Speech First’s challenges to the Use Policy and Residence Hall Manual are 

focused exclusively on language that was eliminated by the University’s recent 

revisions.” In addition to touting the changes, Fenves’s brief states that “the 

University has no plans to, and will not, reenact the former policies.” As a 

result, Speech First’s challenges to the original versions of the Institutional 

Rules, Use Policy, and Residence Hall Manual have allegedly become moot.

In general, “‘a defendant’s voluntary cessation of a challenged practice 

does not deprive a federal court of its power to determine the legality of the 

practice,’ even in cases in which injunctive relief is sought.” Meza v. 

Livingston, 607 F.3d 392, 399–400 (5th Cir. 2010) (quoting City of Mesquite v. 

Aladdin’s Castle, Inc., 455 U.S. 283, 289, 102 S. Ct. 1070, 1074 (1982)). That 

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general rule is not absolute, but “[v]oluntary cessation of challenged conduct” 

moots a case “only if it is ‘absolutely clear that the allegedly wrongful behavior 

could not be reasonably expected to recur.’” Adarand Constructors, Inc. v. 

Slater, 528 U.S. 216, 222, 120 S. Ct. 722, 725 (2000) (quoting United States v. 

Concentrated Phosphate Exp. Ass’n, 393 U.S. 199, 203, 89 S. Ct. 361, 364

(1968)).

In some cases this court has “treat[ed] a voluntary governmental 

cessation of possibly wrongful conduct with some solicitude,” Sossamon v. Lone 

Star State of Texas, 560 F.3d 316, 325 (5th Cir. 2009), aff’d sub nom. Sossamon 

v. Texas, 563 U.S. 277, 131 S. Ct. 1651 (2011), but this relaxed standard has 

not been applied to voluntary cessation by a public university. We do not adopt 

the relaxed standard, but assume its applicability arguendo for purposes of 

this case.

Even applying “some solicitude,” however, the continuing existence of 

the unaltered definition of “harassment” in the Hate and Bias Incidents Policy 

does not make it “absolutely clear” that the University will not reinstate its 

original policies. After all, that Policy maintains the exact definition of 

harassment that was eliminated from the Institutional Rules. Of course, the 

University could reconcile the contradictory policies by revising the Hate and 

Bias Incidents Policy to align with the newly fashioned Institutional Rules, but 

it could easily reconcile them in the opposite way. On that basis alone, the

partial voluntary cessation does not moot this case.

Mootness by voluntary cessation is further inadvisable to avoid a circuit 

split. This is not the first appeal in which a public university has had a sudden 

change of heart, during litigation, about the overbreadth and vagueness of its 

speech code, and then advocated mootness under a relaxed standard. In 

Speech First, Inc. v. Schlissel, the Sixth Circuit considered the alleged 

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mootness of challenges to speech codes at the University of Michigan. 939 F.3d 

756, 767–70 (6th Cir. 2019). The Schlissel court “presume[d] that the same 

allegedly wrongful conduct by the government is unlikely to recur.” Id. at 767. 

Yet the Sixth Circuit held that presumption defeated for three reasons: (1) the

absence of a controlling statement of future intention; (2) the suspicious timing 

of the change; and (3) the university’s continued defense of the challenged 

policies. Id. at 769–70. Following Schlissel, this case is not moot.

To the first point, the University has not issued a controlling statement 

of future intention. Of course, Fenves, in his official capacity, represents in his 

brief that “[t]he University has no plans to, and will not, reenact the former 

policies.” Schlissel, in contrast, reviewed sworn testimony to determine

whether “the University has . . . affirmatively stated that it does not intend to 

reenact the challenged definitions.” 939 F.3d at 769. The University advances

no such sworn affirmative statement here. Schlissel looked to “evidence in the 

record that [the person making a statement] . . . has control over whether the 

University will reimplement the challenged definitions.” There is no evidence

here that Fenves controls whether the University will restore the challenged 

definitions during or after his tenure. Cf. United States v. Atkins, 323 F.2d 

733, 739 (5th Cir. 1963); ACLU v. Fla. Bar, 999 F.2d 1486, 1494 (11th Cir. 

1993). Indeed, the newly made policy amendments are being submitted to the 

Board of Regents for consideration sometime this year.3 Thus, Fenves’s 

statements in brief are not a controlling statement of future intention. 

3 Cf. N.Y. State Rifle & Pistol Ass’n v. City of New York, No. 18-280, 2020 WL 1978708, 

at *1 (U.S. Apr. 27, 2020) (mootness resulted when City exercised its formal legislative 

powers to change an ordinance and “the State enacted a law making the old New York City 

ordinance illegal,” id. at *2 (Alito, J., dissenting)).

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Second, the timing of the University’s policy amendments is at least as

suspicious as was the timing of the changes in Schlissel. In that case, the 

university changed its policies after the complaint was filed, albeit as part of a 

review process that preceded litigation. 939 F.3d at 769. In this case, the 

University did not commence review, much less change its policies, until after 

the district court decision. The changes were first announced only in the 

University’s appellate brief. Cf. Knox v. SEIU, 567 U.S. 298, 307, 132 S. Ct. 

2277, 2287 (2012) (“[M]aneuvers designed to insulate a decision from review 

by this Court must be viewed with a critical eye.”). The University does not 

“explain the expedient timing of the [policies’] removal.” Schlissel, 939 F.3d at 

770.

Finally, Fenves continues to defend the original policies originally as it 

did in the district court. His brief states, “The plain text of the challenged 

policies makes clear that none of the challenged policies . . . prohibits any 

constitutionally protected speech in general, and the types of speech in which 

Speech First’s members wish to engage in particular.” (emphasis added). 

Although the points that follow extend to all the University provisions, original 

and amended, the University’s definitions of arguably protected conduct and 

the alleged lack of a history of past enforcement necessarily involve the preexisting policies. As in Schlissel, the University is still defending the legality 

of its original policies.

Even if Schlissel required all three bases of its ruling to preclude 

mootness,4 all of them obtain here. Accordingly, even under Schlissel’s relaxed 

presumption in favor of a university’s voluntary cessation (which we apply only 

4 Cf. DeJohn v. Temple Univ., 537 F.3d 301, 311 (3d Cir. 2008) (rejecting mootness by 

voluntary cessation after considering only the timing of a policy change and continued 

defense of contested policy).

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arguendo), Fenves has not shown an absolute certainty that the original 

provisions of its Institution Rules, Acceptable Use Policy, and Residence Hall 

Manual will not be reinstituted. Nor has Fenves even alleged mootness 

regarding the CCRT. Speech First’s challenges are not moot.

II. Standing

A preliminary injunction, like final relief, cannot be requested by a 

plaintiff who lacks standing to sue. At earlier stages of litigation, however, the 

manner and degree of evidence required to show standing is less than at later 

stages. See Lujan v. Def’s of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130 (1992)

(“each element [of standing] must be supported . . . with the manner and 

degree of evidence required at the successive stages of the litigation”). At the 

preliminary injunction stage, the movant must clearly show only that each 

element of standing is likely to obtain in the case at hand. Compare Barber v. 

Bryant, 860 F.3d 345, 352 (5th Cir. 2017), with Pendergest-Holt v. Certain 

Underwriters at Lloyd’s of London, 600 F.3d 562, 568–69 (5th Cir. 2010); see 

also Waskul v. Washtenaw Cty. Cmty. Mental Health, 900 F.3d 250, 256 n.4 

(6th Cir. 2018); Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 913 (D.C. 

Cir. 2015).

Because Speech First seeks a preliminary injunction on behalf of its 

members, it must clearly show that it likely has associational standing to bring 

its case on the merits. Speech First satisfies that requirement if it shows a

likelihood that “(a) its members would otherwise have standing to sue in their 

own right; (b) the interests it seeks to protect are germane to the organization’s 

purpose; and (c) neither the claim asserted nor the relief requested requires 

the participation of individual members in the lawsuit.” Int’l Union, United 

Auto., Aerospace & Agr. Implement Workers of Am. v. Brock, 477 U.S. 274, 282, 

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106 S. Ct. 2523, 2529 (1986) (quoting Hunt v. Wash. State Apple Advert. 

Comm’n, 432 U.S. 333, 343, 97 S. Ct. 2434, 2441 (1977)).

The only one of those criteria disputed here is whether it is likely that 

any of Speech First’s members would have standing to sue in his own right.5 

To have standing, a plaintiff must (1) have suffered an injury in fact, (2) that 

is fairly traceable to the challenged action of the defendant, and (3) that will 

likely be redressed by a favorable decision. Lujan v. Def’s of Wildlife, 504 U.S. 

555, 560–61, 112 S. Ct. 2130 (1992).

A plaintiff has suffered an injury in fact if he (1) has an “intention to 

engage in a course of conduct arguably affected with a constitutional interest,”

(2) his intended future conduct is “arguably . . . proscribed by [the policy in 

question],” and (3) “the threat of future enforcement of the [challenged policies] 

is substantial.” See Susan B. Anthony List, 573 U.S. at 161–64, 134 S. Ct. at 

2343–45. For purposes of a preliminary junction, Speech First must clearly 

show a likelihood that at least one of its members suffered such an injury.

The gravamen of Speech First’s claims is that its student-members wish 

to engage in robust debate on timely and controversial political topics from a 

contrarian point of view. Because their views do not mirror those of many on 

campus, their speech may be deemed “harassment,” “rude,” “uncivil,” or 

“offensive,” as those terms are defined in the University’s policies. Their 

speech may also credibly run afoul of the Hate and Bias Incidents Policy and 

may be investigated by the CCRT. Either way, credible threats of enforcement

exist under these policies or through referral from the CCRT. Alleging a facial 

5 The latter two elements of associational standing are uncontested. Speech First’s 

purpose is “to preserv[e] civil rights secured by law, including the freedom of speech 

guaranteed by the First Amendment to the U.S. Constitution,” especially for the sake of 

“students and others at colleges and universities, through litigation and other lawful means.” 

The student speech interests are germane to its purpose, and neither the claims nor the relief 

sought require the participation of individual members in the lawsuit.

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challenge to these rules, Speech First insists that its members’ First 

Amendment rights have been chilled, their speech deterred, by the prospect of 

adverse application of the policies.

This court has repeatedly held, in the pre-enforcement context, that 

“[c]hilling a plaintiff’s speech is a constitutional harm adequate to satisfy the 

injury-in-fact requirement.” Houston Chronicle v. City of League City, 488 F.3d 

613, 618 (5th Cir. 2007). See also Freedom Path, Inc. v. I.R.S., 913 F.3d 503, 

507 (5th Cir. 2019) (same); Fairchild v. Liberty ISD, 597 F.3d 747, 754–55 (5th

Cir. 2010) (same); Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655, 

660 (5th Cir. 2010) (same) (“As the district court noted, ‘[t]he First Amendment 

challenge has unique standing issues because of the chilling effect, selfcensorship, and in fact the very special nature of political speech itself.’”).6 It 

is not hard to sustain standing for a pre-enforcement challenge in the highly 

sensitive area of public regulations governing bedrock political speech.

A. Intention to Engage in Protected Conduct

Concerning the first criterion enunciated in Susan B. Anthony List, 

Fenves attempts only in a footnote to defend the district court’s erroneous 

conclusion that Speech First did not adequately support its members’ 

intentions to engage in speech protected by the First Amendment. Speech 

First’s complaint alleged that one of its student-members at the University 

“wants to engage in open and robust intellectual debate with her fellow 

students” about, for example, “open borders and the protection of illegal 

immigrants,” “the BDS movement to end support for Israel,” and opposition to 

6 Other circuits concur. See, e.g., Ariz. Right to Life PAC v. Bayless, 320 F.3d 1002, 

1006 (9th Cir. 2003) (plaintiff forced to modify political behavior had standing); Majors v. 

Abell, 317 F.3d 719, 721 (7th Cir. 2003) (if statute “arguably covers” plaintiff’s speech, “and 

so may deter constitutionally protected expression . . . , there is standing”) (citing Virginia v. 

Am. Booksellers’ Ass’n, Inc., 484 U.S. 383, at 392–93 (1988)).

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“the President.” This student “wants to speak passionately and forcefully 

about these issues” and wants to point out the flaws in her fellow students’ 

arguments and encourage her fellow students to change their minds.” Speech 

First alleges that two more student-members have similar, and similarly 

concrete, plans. These allegations and others were supported by the Neily 

Declaration.7 According to that sworn statement, “Speech First has a number 

of members who are current students at the University of Texas at Austin.” 

Further, the association’s members at the University wish to engage in debates 

and discussions covering “a wide array of different views on matters such as 

politics, race, religion, gender identity, abortion, gun rights, immigration, 

foreign affairs, and countless other sensitive and controversial topics.” The 

Neily Declaration avers that students “are afraid to voice their views out of 

fear that their speech” may violate University policies. For purposes of a 

preliminary injunction, the Declaration substantiates the allegations raised in

the complaint, and Fenves suggests no grounds to doubt its veracity.8

It is at least likely, therefore, that Speech First’s three student-members 

at the University have an intention to engage in a certain course of conduct, 

7 In this way, Speech First differs from the plaintiffs in National Federation of the 

Blind of Texas, Inc. v. Abbott, a case cited by the district court. In that case, “the stipulated 

facts [were] silent” as to whether the plaintiffs intended to engage in the relevant activity. 

647 F.3d 202, 209 (5th Cir. 2011). Speech First alleges, however, with support in the record, 

its members’ direct intention to engage in the particular activity that it alleges to be arguably 

regulated by the challenged provisions.

8 Contrast that with two cases cited by the district court. In Mississippi State 

Democratic Party v. Barbour, a political party declared an intention to hold a closed primary 

for the first time ever, without support in the record, without having adopted any policy or 

taken any vote on the matter, and without having pursued necessary preclearance from the 

Department of Justice to hold such a primary. 529 F.3d 538, 545 (2008). That dubiously 

alleged group intention bears no resemblance to the uncontested individual intention alleged 

and supported here. And in Zimmerman v. City of Austin, the candidate who challenged 

municipal campaign funding restrictions had no demonstrated intention whatsoever to 

accept donations exceeding the limits. 881 F.3d 378, 382 (5th Cir. 2018).

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namely political speech. Moreover, “[b]ecause [their] intended future conduct 

concerns political speech, it is certainly ‘affected with a constitutional 

interest.’” Susan B. Anthony List, 573 U.S. at 162, 134 S. Ct. at 2344. Speech 

First satisfies the first element of injury-in-fact.

B. Arguably Proscribed

Next, Speech First must clearly show a likelihood that its members’ 

constitutionally protected speech is arguably proscribed, or at least arguably 

regulated, by the University speech policies. See id.; Laird v. Tatum, 408 U.S. 

1, 11, 92 S. Ct. 2318, 2324 (1972) (“[C]onstitutional violations may arise from 

the deterrent, or ‘chilling,’ effect of governmental regulations that fall short of 

a direct prohibition against the exercise of First Amendment rights.”); see also 

Schlissel, 939 F.3d at 764–65.

As has been noted, Speech First members plan to engage the University 

community in debate encompassing a broad array of controversial political 

topics. Comparably broad, however, are the categories of speech arguably 

covered by the University’s Institutional Rule on “verbal harassment,” the 

Acceptable Use Policy’s requirement to be “civil” and not to send “rude” 

correspondence, the Residence Hall Manual proscriptions of “harassment,” 

“intimidation,” and “incivility,” and the Hate and Bias Incidents policies

against “bias incident[s]” and “campus climate incident[s].” Terms like 

“harassment,” “intimidation,” “rude,” “incivility,” and “bias” beg for 

clarification.9 These pejoratives arguably cover the plaintiffs’ intended speech. 

Adding credibility to their argument, the University itself eliminated or

materially altered the challenged definitions—pending appeal. It is far9 Similar terms have in fact been declared overbroad and vague when embedded in 

speech policies at other universities. See, e.g., Dambrot, 55 F.3d at 1182–84.

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fetched to suppose that the policies were amended in a relevant way absent 

any likelihood that they arguably covered Speech First’s members’ speech.

Undeterred, Fenves argues the policies have no bearing on the students’ 

speech. He denies that any speech at all is “arguably proscribed” except by the 

Institutional Rules.10 Ostensibly, the other speech regulations must be 

precatory, not sanctionable. In addition, he commends the policies’ provisions 

that declare the value of free speech and argumentation.

First, even assuming that actual proscription is necessary, contra Laird, 

408 U.S. at 11, 92 S. Ct. at 2324; Schlissel, 939 F.3d at 764–65, the 

Institutional Rules are not the exclusive vehicle for imposing speech penalties.

The Acceptable Use Policy lists “punitive sanctions,” all the way up to “criminal 

prosecution.” The Residential Hall Manual threatens, in addition to referral 

to the Dean of Students for punishment under the Institutional Rules, 

independent Housing sanctions for violating the Manual’s rules. Such

sanctions include compelled participation in educational modules, paperwriting, and presentations, as well as room reassignment and more. Finally,

the Hate and Bias Incidents Policy provides for “Interim Measures and Final 

Sanctions,” including suspension from campus, residence hall, or classes—or 

any of the sanctions authorized in the Institutional Rules.

It is uncontradicted, to be sure, that “the Dean of Students testified that 

‘[s]tudent discipline is administered only for violations of the Institutional 

10 Parroting the district court, Fenves also contends that the “relevant inquiry is 

whether the policy actually prohibits the speech in question—not whether some might 

mistakenly believe it does.” This is wrong. Under Susan B. Anthony List, the question is

simply whether speech is “arguably . . . proscribed by” the challenged policies.” 573 U.S. at 

162, 134 S. Ct. at 2344; see also Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 

298, 99 S. Ct. 2301, 2309 (1979). Even though a plaintiff does not intend to violate a policy, 

the policy’s language may still be claimed to fall within the statutory regulation, e.g., of “false” 

statements, and the plaintiff may thus have standing. 573 U.S. at 163, 134 S. Ct. at 2344–

45.

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Rules.’” Nevertheless, in light of the plain language concerning sanctions in

all of the challenged policies, the Dean appears to have testified as to

definition, indicating that “student discipline” is the University’s name only for 

what follows from violations of the Institutional Rules. In contrast, sanctions 

described in the Residence Hall Manual, for example, are not “student 

discipline” but rather “educational measure[s] implemented by the Housing 

Conduct Board or Residence Hall Conduct Administrator designed to affect

[sic] a change in behavior and to help the student understand how their 

behavior impacted others in the residence hall community.” The Dean and 

University are entitled to their own definitions, but their nomenclature does 

not alter reality and does not contradict the proscriptive nature of the policies.

Nor is it tenable, as the district court found, that the CCRT “does not 

engage in investigations or punishment of any sort.” The implicit suggestion 

here is that, insofar as the Hate and Bias Incidents Policy is enforced by the 

CCRT, it is not sufficiently proscriptive. This point fails under Schlissel. In 

that case, the court “recognize[d] that [the University of Michigan’s Bias 

Response Team] lacks any disciplinary power and that bias incidents are not 

directly punishable.” 939 F.3d at 765. Nevertheless, it found that “[t]he 

Response Team’s ability to make referrals—i.e., to inform [the Office of Student 

Conflict Resolution] or the police about reported conduct—is a real 

consequence that objectively chills speech.” Id. So, too, when the “CCRT 

determines there is a possible violation of the university’s [Institutional Rules]

or policies outlined in the General Information Catalog, [the] CCRT refers the 

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incident to the appropriate entity.” Under Schlissel, a policy thus enforced is 

sufficiently proscriptive to objectively chill student speech.11

Fenves ultimately wraps the University in the flag of its policies’ paeans 

to the freedom of speech. According to Fenves, “the University’s policies 

expressly protect and encourage [the speech at issue].” Without exception, he 

contends, the Institutional Rules, Acceptable Use Policy, and Residence Hall 

Manual, respectively, exclude arguments about ideas from “verbal 

harassment,” affirm the “great value of freedom of thought and expression,” 

and “encourage all members of [the University’s] community to support the 

freedom of speech.”

Examined more closely, however, none of these statements detracts from 

the likelihood that the University’s policies arguably cover Speech First’s

members’ intended speech. First, the Residence Hall Manual’s 

“encourage[ment]” of the freedom of speech does not appear in the sections on 

“Harassment” and “Incivility,” nor anywhere in the chapter on “Personal 

Responsibility and Student Conduct.” Instead, it appears in a subsection of 

the Guidelines on “Posters,” where freedom of speech is qualified by 

admonishments to “respect the mission and value[] . . . [of] providing all 

residents with a ‘comfortable, friendly environment’ and ‘sense of community’” 

and to “not engage in gratuitously offensive expression.” Second, the 

Acceptable Use Policy states that “[w]e do not punish or prevent expression 

that . . . violates no specific law or university regulation” and that “[i]n general, 

expressions of opinion by members of the university community that do not 

otherwise violate state and federal laws or university rules are protected as 

11 Accordingly, we need not consider, for example, Speech First’s suggestion that the 

CCRT’s public logging of incidents in a manner easily identifiable by members of the 

University community also indicates that the Hate and Bias Incidents Policy is proscriptive.

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‘free speech’” (emphasis added). The Residence Hall Manual and Acceptable 

Use Policy clearly delimit the freedom of speech by their prohibitions, not the 

other way around.

The Institutional Rules, on the other hand, explicitly exclude from 

“verbal harassment” the “mak[ing] [of] an argument for or against the 

substance of any political, religious, philosophical, ideological, or academic 

idea.” Fenves suggests that this phrase “straightforwardly conveys that the 

exclusion applies to speech that conveys the substance of an idea” and is 

qualified only to discourage expression extraneous to the idea itself. We 

disagree. Stated more precisely, the definition is this: “verbal harassment” 

includes “hostile or offensive” speech that “is not necessary to the expression 

of any idea [defined as “an argument for or against the substance of any 

political . . . idea].”12 Interpreted grammatically, the exclusion applies only to 

speech that conveys the substance of an idea and is necessary to such 

conveyance. Such a qualified limitation on the scope of the term “verbal 

harassment” increases rather than decreases its uncertainty.

In sum, while purporting to invoke free speech, the Institutional Rules 

qualify protected speech and fail to cabin the terms “harassment,”

12 Section 13–204(b)(1) and (2) state in full:

1. “Verbal harassment” means hostile or offensive speech, oral, written, or symbolic, that

A. is not necessary to the expression of any idea described in subsection 13–204(b)(2);

B. is sufficiently severe, pervasive, or persistent to create an objectively hostile

environment that interferes with or diminishes the victim’s ability to participate in or 

benefit from the services,

activities, or privileges provided by the University; and

C. personally describes or is personally directed to one or more specific individuals.

2. To make an argument for or against the substance of any political, religious, philosophical, 

ideological, or academic idea is not verbal harassment, even if some listeners are offended by 

the argument or idea. The categories of sexually harassing speech set forth in Policy 3-3031 

of the Handbook of Operating Procedures are rarely, if ever, necessary to argue for or against 

the substance of any political, religious, philosophical, ideological, or academic idea.

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“intimidation,” “rude[eness],” “incivility,” and “bias.” It is likely that the

University’s policies arguably proscribe speech of the sort that Speech First’s 

members intend to make.

C. Substantial Threat of Future Enforcement

The last element of injury in fact, in this context, is whether it is clearly 

likely that “the future threat of enforcement of the [challenged policy] is 

substantial.” Susan B. Anthony List, 573 U.S. at 164, 134 S. Ct. at 2345. At 

this point, “[t]he distinction between facial and as-applied challenges bears 

legal significance.” See Schlissel, 939 F.3d at 766. Whereas “[t]here must be 

some evidence that [a] rule would be applied to the plaintiff in order for that 

plaintiff to bring an as-applied challenge,” that is not the case for facial 

challenges. Id.; accord Carmouche, 449 F.3d 655, 659 (5th Cir. 2006); see also

Google Inc. v. Hood, 822 F.3d 212, 227–28 (5th Cir. 2016) (involving no facial 

challenge). Instead, “when dealing with pre-enforcement challenges to 

recently enacted (or, at least, non-moribund) statutes that facially restrict 

expressive activity by the class to which the plaintiff belongs, courts will 

assume a credible threat of prosecution in the absence of compelling contrary 

evidence.” N.H. Right to Life PAC v. Gardner, 99 F.3d 8, 15 (1st Cir. 1996);

accord Carmouche, 449 F.3d at 660; McCauley v. Univ. of the V.I., 618 F.3d 

232, 237–39 (3d Cir. 2010) (determining standing based on policies alone); Ariz. 

Right to Life PAC v. Bayless, 320 F.3d 1002, 1006–07 (9th Cir. 2003); Majors v. 

Abell, 317 F.3d 719, 721 (7th Cir. 2003); N.C. Right to Life, Inc. v. Bartlett, 

168 F.3d 705, 710 (4th Cir. 1999).

The University of Texas members of Speech First plainly belong to a 

class arguably facially restricted by the University policies. Not only this, 

Speech First has also shown, by producing the University’s public log of bias 

incidents, that the Hate and Bias Incidents Policy has been resorted to

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countless times regarding hundreds of events since 2012. Significantly, the 

largest numbers of reported complaints have related to Israel and affirmative 

action, two topics on which Speech First member Student A, for example, 

intends to speak. Such evidence establishes a threat of enforcement, not only 

of the Hate and Bias Incidents Policy, but also of the University’s other

intertwined policies. The Hate and Bias Incidents Policy, after all, specifically

refers to the Institutional Rules, as do the CCRT webpage and the Residence 

Hall Manual regarding the same issues. In addition, the Institutional Rules 

on speech specifically refer to the Acceptable Use Policy for “[r]ules protecting 

and regulating speech on University computer networks.” These overlapping

policies strongly suggest that enforcement of one produces a credible threat of

enforcement of the others. Speech First has clearly shown a credible threat of 

enforcement of those policies upon its members.

Fenves disagrees with the sufficiency of this showing based on case law 

and on “compelling contrary evidence” that belies a credible threat of 

prosecution. The district court focused on the proffered declarations of 

University officials that no sanctions had been imposed for violating the 

challenged policies.

On the case law, Fenves notes, Laird holds that “a complainant who 

alleges that the exercise of his First Amendment rights is being chilled by the 

mere existence, without more, of a governmental investigative and datagathering activity” faces no substantial threat of future harm. 408 U.S. at 10, 

14, 92 S. Ct. at 2324. This holding was necessitated by the facts of the case. 

But Laird also contrasted the facts before it with a number of cases where “this 

Court has found . . . that constitutional violations may arise from the 

deterrent, or ‘chilling,’ effect of governmental regulations that fall short of a 

direct prohibition against the exercise of First Amendment rights.” Id.

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(citations omitted). Standing existed in the Court’s prior cases because “the 

complainant was either presently or prospectively subject to the regulations, 

proscriptions, or compulsions he was challenging.” Id. at 11, 2325. Thus, 

according to Laird, a plaintiff who belongs in a class subject to the challenged 

policies has standing, while one who only resides in a country that maintains 

policies with which he disagrees, but who fails to allege himself personally 

subject to the policies, does not. Id. at 13, 2326. Laird does not prevent these 

plaintiffs, who are arguably covered by the allegedly unconstitutional policies, 

from having standing.

In a second thrust at Speech First’s invocation of Gardner, Fenves quotes

Carmouche, in which this court required more than “the mere existence of an 

allegedly vague or overbroad statute.” 449 F.3d at 660. This is in harmony 

with Laird. That Carmouche relied on a history of past enforcement to show a 

substantial threat of future enforcement does not contradict Laird’s 

acknowledgement that a plaintiff who is subject to a regulation or proscription

has standing to sue. Either type of evidence may establish “a fear of 

prosecution that is not ‘imaginary or wholly speculative.’” Id. (quoting Babbitt 

v. United Farm Workers Nat’l Union, 442 U.S. 289, 302, 99 S. Ct. 2301, 2311 

(1979)). As the Seventh Circuit explained, a plaintiff who mounts a preenforcement statutory challenge on First Amendment grounds “need not show 

that the authorities have threatened to prosecute him . . . ; the threat is latent 

in the existence of the statute.” Majors, 317 F.3d at 721.

Finally, Clapper v. Amnesty International USA imposes no obstacle to 

finding a threat in this case that is likely substantial. In Clapper, the Supreme 

Court determined that the plaintiffs were in a class that, under the challenged 

statute, could not be targeted. 568 U.S. 398, 411, 133 S. Ct. 1138, 1148 (2013). 

Having established this, the Court looked for a history of enforcement or 

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specific facts13 about the government’s targeting practices that might yet give 

rise to a substantial threat of enforcement. Id. The Court did not suggest, 

however, that if the plaintiffs had been the subject of the challenged policies, 

such evidence would have been necessary. Unsurprisingly, in Blum v. Holder, 

the First Circuit determined that “Clapper does not call into question the 

assumption that the state will enforce its own non-moribund criminal laws, 

absent evidence to the contrary.” 744 F.3d 790, 798 n.11 (1st Cir. 2014) (citing 

Gardner, 99 F.3d at 15). The standard articulated in Gardner remains sound.

Turning to the argument that the University offered “compelling 

contrary evidence” to the presumption of enforcement, Fenves alleges an 

absence of relevant past enforcement of the University’s policies. He reiterates 

the speech-protecting language of the policies in question and points to

declarations by University officials to support that the University lacks any 

intention to penalize the intended conduct of Speech First’s members.

This evidence is not compelling. First, both Fenves and a former Dean 

of Students assert that they know of no instance in which the University 

speech policies have been enforced against the speech topics described by 

Speech First.14 Past enforcement of speech-related policies can assure 

standing, but as the foregoing discussion shows, a lack of past enforcement 

does not alone doom a claim of standing. See, e.g., Carmouche, 449 F.3d at 660 

(“Controlling precedent . . . establishes that a chilling of speech because of the 

mere existence of an allegedly vague or overbroad [law] can be sufficient injury 

13 Unlike this case, Clapper reviewed dismissal for lack of standing at the summary 

judgment stage, at which a plaintiff “can no longer rest on . . . ‘mere allegations,’ but must 

‘set forth’ by affidavit or other evidence ‘specific facts.’” Id. at 412, 1148–49.

14 There is no reason to doubt their statements, which are based only on their personal 

experience; but on the other hand, the University’s student disciplinary records were 

unavailable to Speech First at this stage of litigation.

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to support standing.”). Where the policy remains non-moribund, the claim is 

that the policy causes self-censorship among those who are subject to it, and 

the students’ speech is arguably regulated by the policy, there is standing. See, 

e.g., Schlissel, 939 F.3d at 766 (fact that “there is no evidence in the record” of 

past enforcement “misses the point”). Second, as was discussed above, the 

policies’ protection for student free speech “rights” is qualified and limited by 

required adherence to “university rules.” And third, University officials’ 

disavowals of any future intention to enforce the policies contrary to the First 

Amendment are compatible with, and simply reinforce, the open-ended 

language in those policies. The difficulty with such disavowals is that

regulations governing “rude,” “uncivil,” “harassing,” or “offensive” speech can 

in fact cover speech otherwise protected by the First Amendment. See Snyder 

v. Phelps, 562 U.S. 443, 131 S. Ct. 1207 (2011); Vill. of Skokie v. Nat’l Socialist 

Party of Am., 373 N.E.2d 21, 23 (Ill. 1978).15 Moreover, the University 

continues to defend the use of these terms.

Even more to the point, if there is no history of inappropriate or 

unconstitutional past enforcement, and no intention to pursue discipline 

against students under these policies for speech that is protected by the First 

Amendment, then why maintain the policies at all? At least, why maintain 

the plethora of potential sanctions? After all, the University regulatory policy 

for speech, including the Acceptable Use Policy, could have stated succinctly

that students will be disciplined, up to and including academic punishment 

15 This difficulty is not avoided by the University’s reliance on Blum. The Blum court 

construed a federal statute and, in doing so, exercised special “rigor[ ]” due to separation of 

powers concerns. 744 F.3d at 797. The statute in that case specifically targeted conduct, 

violent threats, and economic damage, but specifically excluded criminal liability for 

protected First Amendment conduct. 744 F.3d at 794. The government’s disavowal of 

prosecutions for protected speech thus had a secure statutory basis, unlike the disavowals 

here.

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and criminal referral, for speech that is outside the protection of the First 

Amendment and, perhaps, Title IX, which covers sexual harassment in 

institutions receiving federal funds.16 A reasonable observer must deduce that 

the University meant to expand its regulatory authority beyond the First 

Amendment; consequently, a reasonable student must act on the same 

assumption and self-censor her speech in accord with the perceived policies.

Adding to the credible threat that the policies pose to the exercise of 

protected speech are two other circumstances: the University’s awareness that 

verbal harassment policies must be applied “narrowly” and the operation of the 

Hate and Bias Incidents Policy, through the CCRT, to deter those who would 

express controversial views.

The Institutional Rules’ definition of verbal harassment consumes 

nearly a full page of small type. This alone might raise questions about 

vagueness, but the uncertainty is magnified by the University’s caveat that:

Verbal harassment has been interpreted very narrowly by the federal 

courts. Policies on verbal harassment or hate speech at many 

universities have been held unconstitutional . . . . This policy should be 

interpreted as narrowly as need be to preserve its constitutionality.

Put in terms of prospective enforcement, what does this mean? Surely it 

reasonably implies that the University will protect and enforce its verbal

harassment policy as far as possible, but the distance to that horizon is 

unknown by the University and unknowable to those regulated by it.

Likewise, insofar as the CCRT’s evaluations of bias incident reports is 

based on the same definition of verbal harassment, the entire University 

community has been encouraged to and has funneled into the CCRT hundreds 

16 Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 119 S. Ct. 1661 (1999). Whether 

Davis may constitutionally support purely verbal harassment claims, much less speechrelated proscriptions outside Title IX protected categories has not been decided by the 

Supreme Court or this court and seems self-evidently dubious. 

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of wide-ranging complaints. Moreover, the CCRT has “referred” a large 

number of reporting individuals “to appropriate sources of support and/or 

coordinate[d] with a university entity as appropriate.” The CCRT describes its 

work, judgmentally, in terms of “targets” and “initiators” of incidents. Further, 

examples of CCRT responses to reported incidents have included “facilitating 

conversation between those who were targeted by and those who initiated an 

incident; and making referrals to campus resources such as the UT Austin 

Police Department, the Office of the Dean of Students, and the Office for 

Inclusion and Equity (OIE).” The CCRT, in some measure, represents the 

clenched fist in the velvet glove of student speech regulation.

That the CCRT invites anonymous reports carries particular overtones 

of intimidation to students whose views are “outside the mainstream.” As one 

expert explains, “[i]n both concept and design, such efforts [by “bias response 

teams”] to encourage students to anonymously initiate disciplinary 

proceedings for perceived acts of bias or to shelter themselves from 

disagreeable ideas are likely to subvert free and open inquiry and invite fears 

of political favoritism.” Keith Whittington, Free Speech and the Diverse 

University, 87 Fordham L. Rev. 2453, 2466 (2019); see also Hon. Jose Cabranes, 

For Freedom of Expression, For Due Process, and For Yale: The Emerging 

Threat to Academic Freedom at a Great University, 35 Yale L. & Pol. Rev. 345, 

360 (2017) (lamenting potential dangers of anonymous reports and 

recordkeeping by campus bias “police”).

For these reasons, the existence of the University’s policies, which the 

University plans to maintain as far as a federal court will allow it, suffices to 

establish that the threat of future enforcement, against those in a class whose 

speech is arguably restricted, is likely substantial. And such likelihood is all 

that is necessary to establish the final prong of injury-in-fact for standing to 

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seek a preliminary injunction in this kind of case. Speech First has established 

an injury in fact.

D. Causation and Redressability

As in Carmouche, “[t]he causation and redressability prongs of the 

standing inquiry are easily satisfied here.” 449 F.3d at 661. After all,

“[p]otential enforcement of the [challenged policies] caused [Speech First’s 

members’] self-censorship, and the injury could be redressed by enjoining 

enforcement of [those policies].” Id. Accordingly, Speech First has standing to 

seek a preliminary injunction.

III. Remaining Factors

On the record before us, the case is not moot, and the plaintiff has 

standing to seek a preliminary injunction. For purposes of a preliminary 

injunction, the next step would be to consider whether Speech First is likely to 

succeed on the merits. Because the district court did not move to the merits,

though, and because the new language Fenves proposes might yet be adopted 

by formal procedures of the Board of Regents and might—or might not—moot 

certain issues, we must remand to the district court for reassessment of the 

preliminary injunction. 

At the same time, we note the consistent line of cases that have 

uniformly found campus speech codes unconstitutionally overbroad or vague.17 

17 See, e.g., McCauley, 618 F.3d 232; DeJohn, 537 F.3d 301; Dambrot, 55 F.3d 1177;

Shaw v. Burke, No. 2:17-cv-02386, 2018 U.S. Dist. LEXIS 7584 (C.D. Cal. Jan. 17, 2018); 

Univ. of Cinc. Chapter of Young Ams. for Liberty v. Williams, No. 1:12-cv-155, 2012 U.S. Dist. 

LEXIS 80967 (S.D. Ohio June 12, 2012); Smith v. Tarrant Cty. Coll. Dist., 694 F. Supp. 2d 

610 (N.D. Tex. 2010); Coll. Repub’s at S.F. State Univ. v. Reed, 523 F. Supp. 2d 1005 (N.D. 

Cal. 2007); Pro-Life Cougars v. Univ. of Houston, 259 F. Supp. 2d 575 (S.D. Tex. 2003); UWM 

Post, Inc. v. Bd. of Regents of Univ. of Wis. Sys., 774 F. Supp. 1163 (E.D. Wis. 1991); Doe v. 

Univ. of Mich., 721 F. Supp. 852 (E.D. Mich. 1989).

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Of course, not every utterance is worth protecting18 under the First 

Amendment. In our current national condition, however, in which 

“institutional leaders, in a spirit of panicked damage control, are delivering 

hasty and disproportionate punishment instead of considered reforms,”19

courts must be especially vigilant against assaults on speech in the 

Constitution’s care. Otherwise, the people may not “be free to generate, debate, 

and discuss both general and specific ideas, hopes, and experiences,” to 

“transmit their resulting views and conclusions to their elected 

representatives,” “to influence the public policy enacted by elected 

representatives,”20 and thereby to realize the political and human common 

good.21

CONCLUSION

The judgment of the district court is VACATED, and we REMAND the 

case to proceed in light of this decision.

18 See generally John Finnis, Reason in Action: Collected Essays Volume I 277–324 

(2011); Harvey C. Mansfield, The Value of Free Speech, 37 National Affairs 164 (2018).

19 Elliot Ackerman et al., A Letter on Justice and Open Debate, Harper’s Magazine, 

July 7, 2020, https://harpers.org/a-letter-on-justice-and-open-debate/; cf. Marie-Rose 

Sheinerman, Eisgruber condemns professor’s op-ed that called Black Justice League a 

‘terrorist organization’, The Daily Princetonian, July 12, 2020, 

https://www.dailyprincetonian.com/article/2020/07/joshua-katz-black-justice-leagueterrorist-organization-quillette-letter-princeton.

20 Barr v. Am. Ass’n of Political Consultants, Inc., 140 S. Ct. 2335, 2358 (2020) (Breyer, 

J., concurring in part).

21 See generally Robert P. George, Making Men Moral 192–210 (1993).

Case: 19-50529 Document: 00515621737 Page: 32 Date Filed: 10/30/2020