5th Circuit says “Horns down” to UT….

Welcome back, Loyal Daily Dawg Readers!!  I hope Thanksgiving was restful, giving you the break you need before this three-week sprint to the next holiday. 

There were predictions of a lot of family strife this Thanksgiving, mirroring the polarization in our country.  Of course there have always been arguments among family members at Thanksgiving, but in the past, they focused on fairly safe topics.  A long, long time ago there was a football game on Thanksgiving Day featuring two major Texas universities. Does anyone else remember that? It was a tradition that (we thought) would go on forever.  Now that’s gone, and we look back nostalgically at the days when the biggest argument was Horns v. Aggies.

And of course there is the perennial: Pumpkin v. Pecan.

Usually it was not too hard to maintain courtesy and civility when we argued over these things.  There was an underlying sense of good humor and family unity.  But this year….oh boy. 

So I suspect that some of you tiptoed past sensitive topics as you buttered the biscuits and scooped up the gravy.  You probably wanted to avoid any verbal outbursts that were “rude,” “uncivil,” “harassing,” or “offensive.” 

That’s exactly what UT-Austin tries to do.  But a group of students, backed by a nonprofit advocacy organization called Speech First, Inc. sued UT, alleging that these efforts to enforce niceness violated the First Amendment.  

The 5th Circuit did not hold that the University’s speech codes violated the 1st Amendment, but they sure threw a lot of shade over them. The court was not dealing with the merits of the lawsuit, but rather, the preliminary issue of whether or not the plaintiffs had “standing” to pursue this matter. The lower court ruled that the plaintiffs did not suffer any particular injury, and thus lacked the legal authority to pursue litigation.  Now, the 5th Circuit has reversed that. Thus the case will proceed to the merits, if it does not settle. 

The court’s opinion is a strong reminder that our Constitution often protects speech that is “rude” “uncivil” and “offensive.”  It’s a little different, however, in K-12 schools where teaching young children the proper way to express themselves and interact with others is a crucial component of the school’s mission.  I don’t think this decision will cast doubt on public school anti-bullying policies or other efforts to enforce a basic level of courtesy.  However, it’s abundantly clear that students who express views on issues of public concern that some people find “offensive” are protected by the Constitution.  Mary Beth Tinker established that a long time ago. 

This one is Speech First, Inc. v. Fenves, decided by the 5th Circuit on October 28, 2020.  We found it at 2020 WL 6305819.


Tomorrow: Toolbox Tuesday!!