Speech First, Inc. v. Killean

Dist. Ct. did not err in denying plaintiff’s request for issuance of preliminary injunction in section 1983 action alleging that three policies of defendant-University impermissibly chilled free speech rights of student members of its organization. Specifically, plaintiff sought to enjoin: (1) defendant’s requirement prohibiting without prior approval posting of leaflets about candidates for non-campus elections; (2) defendant from using BARFT and BIP processes to investigate or punish students for bias-motivated incidents; and (3) defendant’s issuance of No Contact Directives (NCD) without procedures ensuring that said directives were consistent with First Amendment. Plaintiff lacked standing to challenge BART and BIP processes or imposition of NCDs, where plaintiff failed to show that any of its members faced credible threat of enforcement or that said policies had objective chilling effect on their speech. This is so, Ct. found, because: (1) bias-motivated speech alone is not student code violation; (2) plaintiff failed to identify specific statements that any student wished to make that defendant’s policies have chilled; and (3) students interactions with BART were optional and BART itself did not have any disciplinary authority. Plaintiff also failed to present any example of defendant issuing NCD  on basis of speech. Moreover, plaintiff’s challenge to prior approval rule was moot, where said rule is now abolished, and where there was no evidence that said rule was ever enforced. (Partial dissent filed.)