Free speech experts, administration weigh in on Speech First lawsuit

Thursday, September 13, 2018 - 8:54pm

A month after Judge Linda V. Parker of the U.S. District Court denied Speech First’s motion to halt the University of Michigan’s Bias Response Team, the University administration and free speech experts reflect on the ruling and predict the case will likely move to becoming a legal moot point. 

The ruling in early August followed a lawsuit filed by the nonprofit against the University claiming the BRT interfered with free speech.

University spokeswoman Kim Broekhuizen said the litigation is still ongoing and the University continues to support BRT and its efforts.

“As we stated in July, we are pleased to see the court has affirmed our definitions of bullying and harassment and agrees that the mission of the University’s Bias Response Team is educational, not punitive and does not violate the First Amendment,” Broekhuizen wrote in an email interview.

Online records published by the BRT detail more than 120 individual bias reports lodged with the office since April 2017. The log has not been updated, however, since the lawsuit was filed in May 2018. 

Faith Sparr, a lecturer in the Communications Studies Department, researches free speech and its usage in public events and on the internet. Sparr said Judge Parker’s opinion seems well reasoned.

“The judge has explained that Speech First’s allegation that the Bias Response Team procedure violates free speech rights is not sustainable, because the BRT has no authority to discipline students through that procedure,” Sparr wrote in an email interview. “As such, there is no concrete harm that is cognizable under the law with respect to the BRT.”

In Parker’s statement, she said there was no instance when BRT criticized the speech of an individual who was reportedly engaged in bias conduct.

The Daily reached out to Free Speech President Nicole Neily but did not receive a response before publication. In a previous Daily article, Neily explained the motives behind the lawsuit.

“We have multiple members of the organization at the University,” Neily said. “The University of Michigan also has a combination of a very bad speech code that is very vague, a very active bias response team that is very proud of its achievements because it keeps a log and we have numbers there, though not all were listed in the complaint. These were the three things we needed.”

Sparr said because the BRT doesn’t hand down discipline, its process does not infringe on free speech.

“I don’t believe (based on what I’ve read) just having the BRT process and responding to alleged bias incidents are a free speech violation,” Sparr wrote. “There is no discipline meted out by the BRT. They are a resource for students who believe they have been targeted. You can speak freely, but if I interpret your speech as problematic (if I believe it is racist, or misogynistic, or homophobic, or xenophobic), that is my right as well.”

Sparr wrote any concerns of vagueness are likely moot as the University changed the definitions for harassment and bullying to mirror state law.

“I suspect that the procedural steps that might occur next is the University might ask the court to dismiss the case,” Sparr wrote. 

Sparr also wrote about the University’s obligation to protect free speech while also protecting its students.

“I’d emphasize that while the University certainly has obligations to uphold vigorous notions of free speech on campus (ethically, pedagogically, legally) it also has obligations to ensure that students who live and work on campus are not bullied or harassed by other community members,” Sparr wrote. “In fact, some of these obligations are specified by federal law to ensure that the educational setting is not a hostile environment based on race or sex.”