Speech First, Equality Last

52 Pages Posted: 10 Jul 2023 Last revised: 21 Sep 2023

See all articles by Brian Soucek

Brian Soucek

University of California, Davis - School of Law

Date Written: July 4, 2023

Abstract

Universities have been put in an impossible situation. They are liable under nondiscrimination laws if they allow hostile speech to interfere with someone’s education, but they are increasingly said to be liable under the Free Speech Clause if they do anything to stop speech before that point. Put simply, universities are liable for acting until the moment when they are liable for not having acted.

This conundrum - what this Article calls the Double Liability Dilemma - is the result of remarkably successful litigation brought in courts across the country by a recently formed, conservative free-speech organization called Speech First. Three courts of appeals, with a fourth perhaps soon to come, have recently enjoined universities from enforcing their harassment policies. These schools now find themselves unable to act to counteract hostile speech based on race or sex before it is too late.

To see the Double Liability Dilemma is to see that these cases simply cannot be rightly decided - and to wonder how courts or commentators might ever think otherwise. Providing the first close look at litigation that is reshaping speech and harassment regulation throughout American higher education, this Article highlights the procedural mechanisms Speech First has used to push courts into taking what critical race theorists have long referred to as the “perpetrator perspective.” By contrast, this Article shows how a broader perspective, taking both sides of the dilemma into account, forces us to rethink the meaning and reach of the First Amendment on college and university campuses.

Suggested Citation

Soucek, Brian, Speech First, Equality Last (July 4, 2023). 55 Arizona State Law Journal 681 (2023), Available at SSRN: https://ssrn.com/abstract=4500504

Brian Soucek (Contact Author)

University of California, Davis - School of Law ( email )

400 Mrak Hall Dr
Davis, CA CA 95616
United States

HOME PAGE: http://law.ucdavis.edu/faculty/soucek

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