Injury-in-Fact in Chilling Effect Challenges to Public University Speech Codes

Abstract

Campus speech codes began to spring up on university campuses during the 1980s and continue to operate today. The codes regulate various forms of arguably offensive speech, including speech regarding race, gender, sexual orientation, ideology, views, and political affiliation. Numerous litigants have challenged the chilling effect these policies have on student and faculty speech, but in cases where the challenged code has not yet been enforced, some courts find that the plaintiff has not met the "injury-in-fact" requirement for Article III standing. The Supreme Court has not ruled on standing requirements in speech code challenges and lower courts are divided. This Comment analyzes this division and proposes that the injury-in-fact requirement should be satisfied by a plaintiff's statement describing the intended speech and how it is chilled by the challenged speech code.