I mentioned a roiling controversy at FIU involving a group chat involving several students (including one law student) that engaged in all sorts of racist, sexist, antisemitic, etc., speech. The university announced an investigation of the students. The law student (who was the secretary of the Miami-Dade Republican Party until he resigned today) filed suit in the Southern District.
A bunch of questions and issues.
Civ Pro I: The Complaint is surprisingly restrained, given the high-profile nature of the case and the perverse incentives for the plaintiff and the (Trumpy) attorney. No over-the-top rhetoric, no performative outrage, no pleading-as-press-release, no “this is the greatest injustice in the history of injustice” shouts. The statement is short-and-plain–six pages, plus eight pages of exhibits.
Civ Pro II: The Complaint does not quote or describe the statements at issue. Paragraph 16 characterizes the statements (“racial slurs, gender-based slurs, antisemitic rhetoric, and anti-LGBTQ language”), then alleges that none falls within a category of unprotected speech. There is a nice question whether that is sufficient in a Twiqbal world, even as modified. How can the court determine whether the plaintiff has plausibly alleged that his speech is protected if the court cannot know from the complaint what the plaintiff said. It does not get much more conclusory than “racial slurs, gender-based slurs, antisemitic rhetoric, and anti-LGBTQ language.” He does seek damages, so the complaint could matter down the line.
Civ Pro III: This illustrates how little the complaint matters in constitutional litigation seeking injunctive relief. The real action will surround the coming Motion for a Preliminary Injunction, which will get beyond the pleading to examine at evidence and the actual statements, with the court (of equity) acting as fact-finder. Followed, of course, by immediate review. Much as we sometimes try, these cases do not follow the same course as ordinary cases (Complaint/Answer/Discovery/SJ Motion).
Judicial Ethics I: The case was assigned to Chief Judge Cecilia Altonaga. Altonaga is an engaged FIU (undergrad) alum; she co-chaired the dean search committee in 2018. Grounds for recusal?
Free Speech I: I was confident when the story broke that nothing in the chat was unprotected. Although I did not look at 1200 pages of texts, I presumed the news reports published the worst of the worst and nothing in the stories crossed (or came close to) any lines. So my take on March 9 (when this broke) was the school cannot punish this speech or would get sued and lose if it tried. And here we are. But as I said then, I would be more confident without this Eleventh Circuit abomination. This speech is farther off campus than the UF case. But this makes it a closer case than it should be.