Cases & Developments

Issue Brief from the American Council on Education (ACE) on the Respecting the First Amendment on Campus Act. The brief identifies key concerns with the “Respecting the First Amendment on Campus Act” (H.R. 7683) introduced on March 5, 2024. Those concerns include increased litigation resulting from the Act’s proposed private right of action and waiver of public institutions’ sovereign immunity rights based on receipt of Title IV funding; the potential loss of Title IV aid resulting from noncompliance with even minor reporting or disclosure requirements; administrative and safety concerns related to the designation of all publicly accessible areas at public institutions as “traditional public forums;” safety concerns related to proposed limits to assess security fees for campus events involving controversial speakers; a prohibition on “all-comers” policies for religious student organizations; constraints on recruitment and academic pursuits entailed in the proposed prohibition on “political litmus tests;” and potential equal protection and Title IX concerns related to the proposed prohibition on actions to “limit or deny” students’ ability to form or participate in single-sex social organizations. ACE also released a Bill Summary detailing the Act’s provisions.  

Settlement Agreement between Speech First, Inc. and Oklahoma State University. Speech First, a nationwide free speech watchdog group, sued Oklahoma State University alleging that the University’s harassment policy, computer use policy (with respect to transmission of political campaign messages), and the University’s Bias Incident Response Team chilled protected speech. Through the Agreement, the University agreed to maintain changes it had made to its harassment and computer use policies and to disband its Bias Incident Response Team. The Agreement also provides that Speech First will not challenge the University’s definition of sexual harassment in its Title IX policy so long as it mirrors “the governing definition promulgated by the United States Department of Education via notice-and-comment rulemaking under Title IX or the Violence Against Women Act.”  

Opinion vacating and remanding for further proceedings. When James Freed became city manager for Port Huron, Michigan in 2014, he updated his Facebook page to reflect his new position and began posting job-related information. When Kevin Lindke posted comments critical of officials and the city’s response to COVID-19, Freed blocked him. Lindke sued under 42 U.S.C. §1983, characterizing the comments sections on Freed’s Facebook page as a public forum and alleging that Freed had violated his First Amendment rights. The district court granted summary judgment to Freed, finding that he managed his Facebook page in his private capacity and that blocking Lindke was not state action as required to give rise to §1983 liability. The Sixth Circuit affirmed, finding insufficient indicia of a connection between Freed’s official duties and his social-media postings to transform the postings into official action. In vacating and remanding, the Supreme Court held that “[t]he state-action doctrine requires Lindke to show that Freed (1) had actual authority to speak on behalf of the State on a particular matter, and (2) purported to exercise that authority in the relevant posts.” In a Per Curiam opinion in O’Connor-Ratcliff v. Garnier (Mar. 15, 2024), concerning Facebook accounts of two school board trustees created originally for their election campaigns, the Court vacated the judgment of the Ninth Circuit for further proceedings in light of its opinion in Lindke v. Freed.