David French of National Review Online details the latest legal setback for university speech codes.

There was a time, in the recent past, when universities were in the grip of a kind of speech-code fever. Even as recently ten years ago, after a wave of litigation striking down campus speech regulations, the vast majority of American colleges and universities still kept clearly unconstitutional speech codes on the books. They kept losing in court, yet they still couldn’t quit their codes.

Fast-forward a decade and that’s changed. Between 2009 and 2019, the portion of surveyed American universities with what the Foundation for Individual Rights in Education classifies as “red light” speech codes has shrunk from 74.2 percent to a mere 28.5 percent, and a total of 17 states have enacted some form of campus free-speech legislation. But the impulse to censor dies hard, and some schools have been nothing if not creative in their efforts to control speech without explicitly and clearly running afoul of the law. Witness, for example, the phenomenon of the “bias-response team.” …

… Last year, a group called Speech First filed an important lawsuit against the University of Michigan, challenging the content of the university’s bullying and harassment policy and its bias-response team’s procedures. The district court denied Speech First’s request for an injunction. …

… [I]n a decision with national implications, the Sixth Circuit Court of Appeals sided with Speech First, reversed the district court and ordered it to reconsider the group’s request for an injunction. …

… The dissent argues that Speech First did not present any evidence of actual or imminent interaction with the bias response team, but — as the majority notes — that’s the entire point of the chilling-effect analysis. When the spectral threat of government action looms, private actors will refuse to engage in any speech that could even potentially result in state investigation.
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The university will now be required to defend its response team on the merits, and it is highly likely to lose.