This post examines an opinion a U.S. District Court Judge
who sits in the U.S. District Court for the Northern of Illinois recently
issued in Beverly v. Watson, 78
F.Supp.3d 717 (2015). She begins her
opinion, as judges usually do, explaining how the lawsuit arose and what it
involved:
Plaintiffs Phillip Beverly and Robert
Bionaz are two professors at Chicago State University (`CSU’). The defendants
are Wayne Watson (CSU's President), Patrick Cage (CSU's Vice President of Labor
and Legal Affairs and CSU's General Counsel), and Janelle Carter (CSU's
Associate General Counsel). All three
defendants were sued in their official and individual capacities.
The plaintiffs are regular contributors
to a blog called CSU Faculty Voice that criticizes the administration at CSU (www.csufacultyvoice.blogspot.com).
According to the plaintiffs, the CSU Faculty Voice blog is not hosted on CSU's
servers. The plaintiffs assert that the defendants violated their First
Amendment rights by trying to shut down the blog and adopting a `Cyberbullying
Policy’ that prohibits electronic communications that may have an `adverse
impact on the work environment of a CSU faculty member or employee.’ (Complaint
at ¶ 2).
The Cyberbullying Policy prohibits
`deliberate or repeated conduct’ that `harasses [or] intimidates an individual
. . . . or has the effect of substantially disrupting the individual's daily
life via the use of *electronic information and communication devices; [ ] the
use of information and communication technologies to support a deliberate,
repeated, and hostile course of conduct that is intended to harm others; or [ ]
intentional and repeated harm through the use of computers, cell phones, and
electronic devices.’ . . . The Cyberbullying Policy applies to `electronic
speech,’ including `[e]xpressive conduct’ in any form that is conveyed via any
means (e.g., tweets, blog postings, and text messages), regardless of whether
it is associated with CSU computers.
Beverly v. Watson,
supra.
She went on to explain that the
plaintiffs also challenge CSU's
`Computer Usage Policy,’ which requires electronic communications, `including
websites and blog posts on the university server,’ to `adhere to the University
standards of conduct which prohibit any communication which tends to embarrass
or humiliate any member of the community.’ . . . In addition, the plaintiffs
allege that the defendants wrongly asserted trademark claims relating to the
CSU Faculty Voice blog to chill the plaintiffs' First Amendment expression.
Specifically, the plaintiffs allege that the defendants sought to prevent the
plaintiffs from speaking by claiming, without basis, that the use of CSU's name
and trademarks on the blog `caused confusion, diminished the University's
brand, and implied CSU's endorsement of the blog's commentary.’ . . .
The complaint also contains a few
broadly worded allegations about retaliation against plaintiff Beverly based on
his criticism of CSU and its administration. . . . Specifically, Beverly
contends that CSU canceled his reservation for a room where he planned to hold
a meeting to discuss the repression of free speech at CSU. Beverly moved the
meeting to a classroom space and some of the students from his public
management class attended. CSU initiated disciplinary hearings against Beverly
based on his holding of class in an unauthorized location. At an initial
hearing on the disciplinary charges, CSU alleged that Beverly violated its
policy that forbids professors from imposing their personal beliefs on
students. It appears that the disciplinary charges against Beverly remain
pending.
Beverly v. Watson,
supra.
You can, if you are interested, read more about the facts in
the case and the litigation in the news stories you can find here, here and
here.
Next, the judge’s opinion says the “complaint contains four
counts”, which are as follows:
1. Count I—`Facial challenge to violation of right to free
speech under the plaintiffs' First and Fourteenth Amendment rights (42 U.S.Count § 1983) -- Computer Usage Policy) (all defendants)’
2. Count II—“Violation of right to free speech under the
plaintiffs' First and Fourteenth Amendment Rights (42 U.S. Code § 1983)—(Cyberbullying
Policy) (all defendants)’
3. Count III—`As-applied Violation of plaintiffs' right to
free speech under the First and Fourteenth Amendments (42 U.S. Code § 1983)
(individual defendants).’ This count challenges the individual defendants'
alleged efforts to shut down the CSU Faculty Voice blog or
`sanction’ the plaintiffs for views expressed in the blog.
4. Count IV—The plaintiffs request declaratory judgment
based on the prior three counts.
Beverly v. Watson,
supra.
As to why the counts repeatedly refer to the
First and Fourteenth Amendments, Wikipedia explains that the Fourteenth
Amendment is the device the U.S. Supreme Court has used to apply the
Constitutional Amendments known as the Bill of Rights to the states. As Wikipedia also notes, in Barron v. Baltimore, 32 U.S. 243 (1833),
the U.S. Supreme Court held that the Bill of Rights could not be applied to the
states. The Court later used the Fourteenth Amendment to apply various protections in the Bill of Rights to the states.
The judge then explained that the defendants in this case
have filed a motion to dismiss for lack
of subject matter jurisdiction. According to the defendants,
they have never enforced the Computer Usage Policy or the Cyberbullying
Policy against the plaintiffs and there is no reasonable probability that these
policies will ever be enforced against the plaintiffs. In the plaintiffs' response
to the motion to dismiss, . . . they allege that contrary to the defendants'
contention that there is no present case or controversy, the defendants
attempted to shut down the CSU Faculty Voice blog and engaged
in retaliation based on their protected speech. In addition, the plaintiffs
assert that the defendants' activities have chilled their expressive
activities.
Beverly v. Watson,
supra.
He goes on to outline the legal standard federal judges
apply when they are ruling on a motion to dismiss for lack of subject-matter
jurisdiction:
When considering a motion to dismiss
for lack of subject matter jurisdiction, the court accepts the complaint's well
pleaded factual allegations as true and draws all reasonable inferences in the
plaintiffs' favor. Center for Dermatology and Skin Cancer, Ltd. v.
Burwell, 770 F.3d 586 (U.S. Court of Appeals for the 7th Circuit 2014).
. . . Plaintiffs facing a 12(b)(1) motion to dismiss, however, bear the burden
of establishing that jurisdiction is proper. Center for Dermatology and Skin Cancer, Ltd. v. Burwell, supra. Because
the defendants have challenged facial jurisdiction, the court is limited to the
allegations in the plaintiffs' complaint. See Leveski v.
ITT Educational Serv., Inc., 719 F.3d 818 (U.S. Court of Appeals for
the 7th Circuit 2013) (holding that `because [the defendant] raised a
factual (instead of a facial) challenge to jurisdiction, we are not bound to
accept as true the allegations of the complaint which tend to establish
jurisdiction’) . . . ; Apex Digital, Inc. v. Sears, Roebuck & Co., 572
F.3d 440 (U.S. Court of Appeals for the 7th Circuit 2009) (`Facial
challenges require only that the court look to the complaint and see if the
plaintiff has sufficiently alleged a basis of subject matter jurisdiction’).
Beverly v. Watson,
supra.
The judge began is analysis of the issues in this case by
explaining that the defendants
argue that this case must be dismissed
because the plaintiffs lack standing to pursue their claims. Relatedly, the
defendants argue that the plaintiffs' claims are not ripe. Standing is `an
essential and unchanging part of the case-or-controversy requirement of Article
III of the United States Constitution. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). `As a jurisdictional requirement, the plaintiff bears the burden
of establishing standing.’ Apex Digital, Inc. v. Sears, Roebuck &
Co., 572 F.3d 440 (U.S. Court of Appeals for the 7th Circuit 2009). To
establish standing, a plaintiff must prove that: (1) he suffered a concrete and
particularized injury that is actual or imminent; (2) the injury is fairly
traceable to the defendant's actions; and (3) it is likely that the injury will
be redressed by a favorable decision. Lujan v. Defenders of Wildlife,
supra.
In turn, ripeness requires `an actual dispute
between parties with adverse legal interests.’ See Kawasaki Heavy
Indus., Ltd. v. Bombardier Recreational Prods., Inc., 660 F.3d 988 (U.S.
Court of Appeals for the 7th Circuit 2011); see also Medimmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007) (holding that to
determine if there is an actual controversy between the parties, the court must
consider `whether the facts alleged, under all the circumstances, show that
there is a substantial controversy, between parties having adverse legal
interests, of sufficient immediacy and reality to warrant the issuance of a
declaratory judgment’). “The difference between an abstract question
calling for an advisory opinion and a ripe ‘case or controversy’ is one of
degree, not discernible by any precise test.” Wisconsin. Environmental
Decade, Inc. v. State Bar of Wisconsin, 747 F.2d 407 (U.S. Court of Appeals
for the 7th Circuit 1984).
Beverly v. Watson,
supra.
The judge then analyzed the issues of ripeness and standing,
in that order. She began with ripeness,
i.e., with whether the plaintiffs
have alleged an actual or imminent
injury that is concrete and particularized (standing). This inquiry overlaps
with the requirement that a plaintiff allege sufficient facts to show that
there is an actual dispute (ripeness). The court's consideration of these
standards starts and ends with the plaintiffs' allegations about the cease and
desist letter sent to Beverly regarding the CSU Faculty Voice blog.
According to the plaintiffs, the
defendants collectively attempted to chill their First Amendment right to free
speech by sending a cease and desist letter demanding that they shut down the
blog. In that letter, in addition to assertions about the use of CSU's
trademarks, Cage states that `the lack of civility and professionalism
expressed on the blog violates the University's values and policies requiring
civility and professionalism.’ . . .
The plaintiffs stress that this letter
is dated one business day after a post appeared on the blog contending that a
senior CSU administrator (Angela Henderson, CSU's Interim Provost and Senior
Vice President for Academic Affairs) had partially falsified her resume. The
plaintiffs allege that they fear discipline under the Computer Usage Policy for
publishing the CSU Faculty Voice, even though that the blog is not hosted in
CSU's servers. They also allege that the Computer Usage Policy is improperly
vague and overbroad. Finally, they allege that they fear discipline under CSU's
Cyberbullying Policy.
In contrast, the defendants contend
that the reference to civility in the cease and desist letter does not show
that CSU threatened the plaintiffs with legal action based on the Computer
Usage or Cyberbullying Policies. The court disagrees. At this stage in the proceedings,
the court must draw all reasonable inferences in the plaintiffs' favor. Ctr.
for Dermatology and Skin Cancer, Ltd., supra. The references to civility do not appear to be
related to the claims of trademark infringement raised elsewhere in the cease
and desist letter. It is eminently reasonable to read the letter as a demand to
shut down the CSU Faculty Voice blog based on its alleged failure
to meet CSU on-line civility standards.
It is also eminently reasonable to
conclude that those civility standards are the ones memorialized in CSU's
Computer Usage Policy, which requires electronic communications to “adhere to
the University standards of conduct which prohibit any communication which
tends to embarrass or humiliate any member of the community.” . . . The same
goes for the Cyberbullying Policy, which could be read as prohibiting a series
of negative blog posts.
The defendants assert that the
inference that they were relying on the Computer Usage or Cyberbullying
Policies is obviously wrong because the plaintiffs specifically allege that the
blog is not hosted on a CSU server. According to the allegations in
the complaint, however, CSU's Computer Usage Policy states that it `includ[es]
websites and blog posts on the university server.’ . . . It is not explicitly
limited to Internet websites and blog posts hosted on CSU's server. That is a
possible interpretation of the policy but the court cannot make findings of
fact at this stage of the proceedings. Similarly, the Cyberbullying Policy is
not limited to communications made using CSU's computer equipment. Thus, the
allegation that the blog is hosted on a non-CSU server does not negate the
inference that the defendants were threatening the plaintiffs based on the
Computer Usage and Cyberbullying Policies.
Discovery may belie the plaintiffs'
allegations. At this stage in the proceedings, however, the court must construe
the plaintiffs' allegations in their favor. It thus declines to ignore the fact
that a letter ostensibly about alleged trademark violations contains assertions
about the tone and content of the CSU Faculty Voice blog.
Accordingly, the court finds that the plaintiffs' allegations satisfy the
actual or imminent injury requirement for both standing and ripeness. This
means that the plaintiffs have satisfied the single-element test for ripeness. See Kawasaki Heavy Indus., Ltd. v. Bombardier
Recreational Prods., supra. The court turns to the remaining two elements
necessary to establish standing: a traceable injury and redressability.
Beverly v. Watson,
supra.
He began with “traceable injury:”
The defendants argue that the
plaintiffs' allegations fail to link their claimed injuries to the defendants'
actions. The defendants' lead example is their claim that the cease and desist
letter did not rest, at least in part, on the Computer Usage or Cyberbullying
Policies because the letter did not explicitly refer to those policies. The
court rejects this argument, for the reasons explained above.
The defendants also claim the
plaintiffs are merely speculating that the cease and desist letter was based on
CSU's Computer Usage and Cyberbullying Policies and, therefore, cannot meet the
traceable injury requirement. It is true that a plaintiff's speculation that a
defendant injured him is insufficient. See, e.g., Area
Transp., Inc. v. Ettinger, 219 F.3d 671 (U.S. Court of Appeals for the
7th Circuit 2000). The so-called
speculation here, however, is the plaintiffs' allegation that their First
Amendment rights were chilled due to CSU's Computer Usage and Cyberbullying
Policies. According to the defendants, this claim has no factual basis because
they never threatened to enforce CSU's Computer Usage and Cyberbullying
Policies. As discussed above, since the court must construe the plaintiffs'
allegations liberally, the court cannot accept this position at the motion to
dismiss stage.
Beverly v. Watson,
supra.
He also went on to point out that the
defendants also allege that the plaintiffs'
claim that their First Amendment rights were chilled is speculative because the
plaintiffs do not specify what expressive speech they have been prevented from
making. `A "subjective chill” [i.e., a subjective apprehension] on
one's exercise of First Amendment rights is not, by itself, sufficient to
support standing.’ Zamecnik v. Indian Prairie School Dist. No. 207 Bd.
of Educ., 2009 WL 805654 (U.S. District Court for the Northern
District of Illinois 2009) (quoting Laird v. Tatum, 408 U.S. 1 (1971)). `Instead, a “specific present objective harm or a threat of
specific future harm’ is necessary to support standing.’ Zamecnik v. Indian
Prairie School Dist. No. 207 Bd. of Educ., supra (quoting Laird v. Tatum, supra).
Here, the general tenor of the speech
at issue is not speculative: the plaintiffs clearly wish to continue to
criticize CSU's administration as they have done in the past. . . .
(finding that the plaintiff did not have standing to pursue claims based on
speech when the record did not show what conduct the plaintiff wished to engage
in). Once the court accepts the plaintiffs' reading of the letter (which it
must do given this case's procedural posture), the link between the defendants'
actions and the alleged chilling of the plaintiffs' First Amendment rights is
not speculative.
Beverly v. Watson,
supra.
The judge therefore denied the defendants’ motion to
dismiss, which means the case goes forward.
Beverly v. Watson, supra.
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