United States District Court, D. South Carolina, Columbia Division
Ross Abbott, College Libertarians at the University of South Carolina, and Young Americans for Liberty at the University of South Carolina, Plaintiffs,
Harris Pastides, Dennis Pruitt, Bobby Gist, and Carl Wells, Defendants.
ORDER AND OPINION
Margaret B. Seymour, Senior United States District Judge
Ross Abbott (“Abbott”), College Libertarians at
the University of South Carolina
(“Libertarians”), and Young Americans for Liberty
at the University of South Carolina
(“YAL”)(together “Plaintiffs”) bring
this civil rights action pursuant 42 U.S.C. § 1983
against Defendants Harris Pastides, Dennis Pruitt, Bobby Gist
(“Gist”), and Carl Wells (“Wells”)
(together “Defendants”), alleging that Defendants
violated their rights under the First Amendment. This matter
comes before the court on Defendants' two motions for
summary judgment and Plaintiffs' cross-motion for partial
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
planned a Free Speech Event at the University of South
Carolina (“USC”) to draw attention to threats to
free expression on college campuses. ECF No. 1 at 5.
Plaintiffs planned “to create visual displays and
handouts depicting censorship controversies that have
occurred at USC and other universities throughout the
country.” Id. Prior to the event, Abbott met
with Director of Campus Life and the Russell House University
Union, Kim McMahon. Id. Abbott provided Ms. McMahon
a synopsis of the planned event, including details describing
the types of visuals that Plaintiffs intended to display.
Id. at 6. Abbott subsequently obtained the proper
space and facilities reservation to hold the event in front
of the Russell House Union Building, a building located
within USC's “free speech zone.”
Free Speech Event took place on November 23, 2015, as
planned. Plaintiffs “displayed posters and hand-outs
referencing censorship incidents at other
universities.” Id. at 6. Some of the incidents
highlighted included an incident where a student was
threatened punishment because of distributing copies of the
United States Constitution on Constitution Day outside of a
university's designated areas for free speech, and an
incident where a university's policies failed to
recognize a pro-choice group as a student organization.
Id. at 6-7. Further, the word “wet back”
and a picture of a swastika were among the visual displays.
Id. Contextual background for all of the incidents
displayed were provided by Plaintiffs.
the event, members of the campus community called USC
officials to complain about the displays. These complaints
were forwarded to Ms. McMahon by email. ECF No. 27-3 at 2.
One particular email from the Director of the Office of
Multicultural Student Affairs stated, “I am getting
calls from everyone from faculty to the Columbia Jewish
Federation concerning the swastika on Greene [S]treet.”
Id. Ms. McMahon responded to the email noting,
“This is free speech and they are in a free speech area
and if they are being respectful and trying to help learn and
create dialogue then I am not sure how to help those that are
uncomfortable about it.” Id. Ms. McMahon
responded again in a subsequent email wherein she continued
to describe the purpose of the event, writing,
“Discomfort is not surprising but they are hosting a
free speech education event with a variety of situations that
have been cited as examples of violation of free speech on
other campuses. As I am not there I can't provide context
and if group is doing what their event said it would.”
ECF No. 27-4 at 2.
November 24, 2015, Wells, Assistant Director of the Office of
Equal Opportunity Programs (“EOP”), sent a letter
to Abbott stating that three students filed Formal Complaints
of Discrimination. ECF No. 1-14 at 2. One student complained
of Plaintiffs' behavior at the event, including,
“engaging rudely with USC students, saying sexist and
racist statements.” ECF No. 1-14 at 8. In reference to
Plaintiffs' display of a swastika at the event, another
student complained that a friend “was violently
triggered by seeing the symbol, and now feels unsafe on
campus.” Id. at 11.
letter sent to Abbott indicated that a “Notice of
Charge” and copies of the official student complaints
were enclosed. Id. Abbott was instructed to contact
the EOP office within five days to “arrange an
appointment to fully discuss the charges as alleged.”
Id. Abbott was directed not to contact any of the
complainants, and not to discuss the issue with other members
of the campus community. Id. The letter further
With respect to a complaint that is filed with this office we
shall as a matter of policy attempt to resolve the complaint
through mutually agreeable mediation. Should we be unable to
mediate a complaint we shall move to investigate the
complaint and we shall upon completion of our investigation,
issue to all parties a copy of our findings and
recommendations which we shall make to the Provost and
President of the University.
November 24, 2015, Abbott called Wells to discuss the letter.
ECF No. 1 at 10. Abbott states that during his conversation
with Wells, “Mr. Wells confirmed that an investigation
into the complaints would comply with University policy EOP
1.01, which details Equal Opportunity Complaint
procedures.” ECF No. 57-1 at 5.
December 8, 2015, Wells met with Abbott, who was joined by
Michael Kriete (“Kriete”), the President of YAL.
ECF No. 1 at 13. The meeting lasted forty-five minutes and
was recorded by Abbott. Id. At the beginning of the
meeting, Abbott provided Wells with a letter setting forth
his defense to the Free Speech Event. ECF No. 27-5 at 7. The
letter also listed actions USC “would need to take to
prevent its policies from chilling the exercise of
constitutionally protected speech.” ECF No. 1 at 14.
Abbott explained the purpose of the free speech event and
expressed his concerns with the meeting. ECF No. 27-5. Wells
confirmed that the meeting was a
pre-complaint/pre-investigation remedy to obtain more
information concerning the details of the event in response
to the student complaints. ECF No. 27-5 at 3.
December 23, 2015, Wells sent a letter to Abbott notifying
Abbott that the EOP Office “will not move any further
in regard to this matter. The Office of Equal Opportunity
Programs has found no cause for investigating this
matter.” ECF No. 27-6 at 2. On February 23, 2016,
Plaintiffs brought the underlying action. ECF No. 1. First,
Plaintiffs raise an “as-applied” challenge,
asserting that when Defendants required Abbott to attend a
meeting to address student complaints, Defendants
unconstitutionally applied USC policies to Plaintiffs in a
way that chilled Plaintiffs' speech. Next, Plaintiffs
allege USC's “policies and actions create a hostile
atmosphere for free expression on campus, chilling the speech
of other registered student organizations, as well as
students, who are not before the court.” ECF No. 1 at
challenge USC's Student Non-Discrimination and
Non-Harassment Policy, STAF 6.24; and the Carolinian
Creed as unconstitutional, claiming that the terms of
both are broad and undefined and “vest University
officials with unbridled discretion in their ability to
review and restrict student speech.” Id. at
21. Plaintiffs argue that the types of speech prohibited in
STAF 6.24- “‘unwelcome' and
‘inappropriate' speech, including
‘objectionable epithets, demeaning depictions, '
‘unwelcome and inappropriate letters, telephone calls,
electronic mail, or other communication, '
‘repeated inappropriate personal comments, ' speech
that employs ‘sexual innuendos and other sexually
suggestive or provocative behavior, ' and even
‘suggestive or insulting gestures or
sounds'”- is unconstitutionally vague. Id.
6.24's definitions of “harassment” and
“sexual harassment” state, in pertinent part:
Harassment is a specific type of illegal discrimination. It
includes conduct (oral, written, graphic, or physical) which
is directed against any student or group of students because
of or based upon one or more of the characteristics
articulated in Section II above, that is sufficiently severe,
pervasive, or persistent so as to interfere with or limit the
ability of an individual or group to participate in or
benefit from the programs, services, and activities provided
by the University.
Such harmful conduct may include, but is not limited to,
objectionable epithets, demeaning depictions or treatment,
and threatened or actual abuse or harm. Harassment does not
include the use of materials by students or discussions
involving students related to any characteristic articulated
in Section II for academic purposes appropriate to the
ECF No. 1-16 at 3.
Sexual harassment is a specific type of discrimination which
is defined as unwelcome conduct of a sexual nature that is
sufficiently severe or pervasive that it adversely affects a
student's or student group's ability to participate
in or benefit from the programs and services provided by the
University. Examples of conduct that may constitute sexual
harassment in violation of this policy include, but are not
limited to, the following types of unwelcome and harmful
a. Physical Conduct
i. Unnecessary or unwanted touching, patting, massaging, etc.
ii. Impeding or blocking movements
iii. Acts of sexual violence
iv. Other unwanted conduct of a physical nature
b. Non-Verbal Conduct
i. Suggestive or insulting gestures or sounds
c. Verbal conduct
i. Direct propositions of a sexual nature
ii. Sexual innuendos and other sexually suggestive or
iii. Repeated, unwanted requests for dates
iv. Repeated inappropriate personal comments
v. Unwelcome and inappropriate letters, telephone calls,
electronic mail, or other communication or gifts
vi. Requests for sexual favors
Sexual harassment may occur between members of the same or
opposite sex. Sexual harassment directed at any student or
other member of the University community, regardless of his
or her sexual orientation, is a violation of this policy.
Sexual harassment does not refer to occasional, nonsexual
compliments, nonsexual touching, or other nonsexual conduct.
Id. at 3-4.
Carolinian Creed, which encourages students to
adhere to the following ideals, provides:
A. I will practice personal and academic integrity.
A commitment to this ideal is inconsistent with cheating in
classes, in games, or in sports. It should eliminate the
practice of plagiarism or borrowing another student's
homework, lying, deceit, excuse making, and ...