The opinion
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
STUDENTS FOR JUSTICE IN PALESTINE
AT THE UNIVERSITY OF FLORIDA,
Plaintiff,
V. Case No.: 1:23cv275-MW/MJF
RAYMOND RODRIGUES, et al.,
Defendants.
__________________________/
ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION
On October 24, 2023, less than three weeks after Hamas’s horrific attack on
Israel and a spike in antisemitic hate crimes throughout the United States, the
Chancellor of the Board of Governors sent a memorandum to each university
president in the State University System, including Defendant Ben Sasse, President
of the University of Florida. The memorandum described Hamas’s attack and linked
Hamas’s actions to an organization called the National Students for Justice in
Palestine, based on statements that the national organization made in response to
events in Israel. The Chancellor cited Florida’s criminal law against providing
material support to designated foreign terrorist organizations and implied that the
national organization violated that statute based on its statements. The Chancellor
then identified two student chapters of Students for Justice in Palestine that exist as
registered student organizations at two of Florida’s state universities. One of those
chapters is Plaintiff, Students for Justice in Palestine at the University of Florida.
The Chancellor incorrectly described these student chapters as “active National SJP
Chapters” that “exist under the headship of the National Students for Justice in
Palestine.” ECF No. 1-1 at 1. In bold, the Chancellor stated: “Based on the National
SJP’s support of terrorism, in consultation with Governor DeSantis, the
student chapters must be deactivated.” Id.
A week after the Chancellor sent his memorandum, he addressed the matter
again at a Board of Governors (BOG) meeting on November 9, 2023. At the meeting,
the Chancellor indicated that the student chapters of the Students for Justice in
Palestine, including Plaintiff, have constitutions that clearly state that their
organizations are not subservient to or under the control of the national organization,
as he had suggested in his memorandum. He also indicated that officials at the
University of Florida had sought their own legal opinion about deactivating Plaintiff
and the opinion raised concerns that officials at the University of Florida could be
exposed to personal liability if they deactivated the student organization consistent
with Defendant Rodrigues’s memorandum.
Plaintiff filed suit about a week after this BOG meeting. ECF No. 1. Without
dispute, the University of Florida has not deactivated Plaintiff as a registered student
organization. But Plaintiff asks this Court to decide whether this memorandum and
the threat of deactivation that this memorandum arguably represents violates
Plaintiff’s First Amendment rights to free speech and association.
Before this Court can reach the weighty constitutional question Plaintiff
poses, this Court must first satisfy itself that Plaintiff is substantially likely to
establish standing for purposes of a preliminary injunction. This Court heard
Plaintiff’s motion for preliminary injunction on January 26, 2024. For the reasons
set out below, this Court concludes that Plaintiff has failed to demonstrate a
substantial likelihood of establishing standing, and thus, Plaintiff is not entitled to
preliminary injunctive relief.
I
Under Rule 65 of the Federal Rules of Civil Procedure, a district court may
grant a preliminary injunction “only if the moving party shows that: (1) it has a
substantial likelihood of success on the merits; (2) irreparable injury will be suffered
unless the injunction issues; (3) the threatened injury to the movant outweighs
whatever damage the proposed injunction may cause the opposing party; and (4) if
issued, the injunction would not be adverse to the public interest.” Siegel v. LePore,
234 F.3d 1163, 1176 (11th Cir. 2000) (en banc) (per curiam). Although a
“preliminary injunction is an extraordinary and drastic remedy,” it nonetheless
should be granted if “the movant ‘clearly carries the burden of persuasion’ as to the
four prerequisites.” United States v. Jefferson Cty., 720 F.2d 1511, 1519 (11th Cir.
1983) (quoting Canal Auth. v. Callaway, 489 F.2d 567, 573 (11th Cir. 1974)). None
of these elements, however, is controlling; rather, this Court must consider the
elements jointly, and a strong showing of one element may compensate for a weaker
showing of another. See Fla. Med. Ass’n, Inc. v. U.S. Dep’t of Health, Educ. &
Welfare, 601 F.2d 199, 203 n.2 (5th Cir. 1979).
This Court begins with whether Plaintiff has shown a substantial likelihood
of success on the merits. This Court addresses this factor first because, typically, if
a plaintiff cannot “establish a likelihood of success on the merits,” this Court “need
not consider the remaining conditions prerequisite to injunctive relief.” Johnson &
Johnson Vision Care, Inc. v. 1-800 Contacts, Inc., 299 F.3d 1242, 1247 (11th Cir.
2002). And because standing is always “an indispensable part of the plaintiff’s case,”
this Court begins its merits analysis with standing. Lujan v. Defs. of Wildlife, 504
U.S. 555, 561 (1992).
A
Standing is not just some technical hurdle—it concerns a fundamental
question about whether this Court has jurisdiction to hear Plaintiff’s constitutional
claim. Any evaluation of Plaintiff’s claim, thus, necessitates an inquiry into
Plaintiff’s ability to bring such a claim. Accordingly, this Court first considers
whether Plaintiff has met its affirmative burden to demonstrate a substantial
likelihood of success in establishing standing against each Defendant in this case.1
Over time, the Supreme Court has developed a three-part test for determining
when standing exists. Under that test, a plaintiff must show (1) that they have
suffered an injury-in-fact that is (2) traceable to the defendant and that (3) can likely
be redressed by a favorable ruling. See Lujan, 504 U.S. at 560–61. And “where a
plaintiff moves for a preliminary injunction, the district court . . . should normally
evaluate standing ‘under the heightened standard for evaluating a motion for
summary judgment.’ ” Waskul v. Washtenaw Cnty. Cmty. Mental Health, 900 F.3d
250, 255 n.3 (6th Cir. 2018) (quoting Food & Water Watch, Inc. v. Vilsack, 808 F.3d
905, 912 (D.C. Cir. 2015)); see also Cacchillo v. Insmed, Inc., 638 F.3d 401, 404
(2d Cir. 2011). Thus, “a plaintiff cannot ‘rest on such mere allegations, [as would be
appropriate at the pleading stage] but must set forth by affidavit or other evidence
specific facts, which for purposes of the summary judgment motion will be taken to
be true.’ ” Cacchillo, 638 F.3d at 404 (some alteration in original) (quoting Lujan,
504 U.S. at 561). And at the preliminary-injunction stage, this Court need not accept
Plaintiff’s allegations as true or draw all reasonable inferences in Plaintiff’s favor.
1 Although the UF BOT Defendants and President Sasse have remained silent in this case,
this Court also considers whether Plaintiff has standing to proceed against them, including but not
limited to whether Plaintiff has standing for purposes of a preliminary injunction, given this
Court’s “independent obligation . . . to examine its own jurisdiction . . . at each stage of the
proceedings, even if no party raises the jurisdictional issue . . . .” Hallandale Prof. Fire Fighters
Local 2238 v. City of Hallandale, 922 F.2d 756, 759 (11th Cir. 1991).
See New Hope Family Servs., Inc. v. Poole, 966 F.3d 145, 165 (2d Cir. 2020). With
these principles in mind, this Court turns to the record to determine whether Plaintiff
has clearly carried its burden to demonstrate a substantial likelihood of establishing
standing, starting with whether there is a substantial likelihood that Plaintiff can
demonstrate an injury-in-fact within the meaning of the law.
B
Plaintiff points to both the threat of deactivation and its members’ and
prospective members’ chilled speech as injuries for purposes of standing. See ECF
No. 3-1 at 30–31; ECF No. 41 at 18. “To have standing, ‘a plaintiff must have
suffered or be imminently threated with a concrete and particularized injury in fact .
. . .’ ” Dream Defenders v. Gov. of the State of Fla., 57 F.4th 879, 886 (11th Cir.
2023). “A threat of future injury is sufficient to establish standing when ‘the
threatened injury is certainly impending or there is a substantial risk that the harm
will occur.’ ” Id. at 887 (quoting Susan B. Anthony List v. Driehaus, 573 U.S. 149,
158 (2014)). But where there is a “sequence of uncertain contingencies involving
multiple independent actors . . . that must occur before” Plaintiff’s members would
experience the threatened harm, Plaintiff is unlikely to demonstrate a substantial
likelihood that the threat is imminent. Id. at 888. In addition, “ ‘an actual injury can
exist when the plaintiff is chilled from exercising her right to free expression or
forgoes expression in order to avoid enforcement consequences.’ ” Wilson v. State
Bar of Ga., 132 F.3d 1422, 1428 (11th Cir. 1998) (quoting N.H. Right to Life Pol.
Action Comm. v. Gardner, 99 F.3d 8, 13 (1st Cir. 1996)). “In such an instance, . . .
the injury is self-censorship.” Id. (citing ACLU v. The Fla. Bar, 999 F.2d 1486, 1492
(11th Cir. 1993)).
To start, this Court recognizes that it is limited to the record before it in ruling
on Plaintiff’s motion. And the parties were free to develop this record ahead of the
hearing. Indeed, this Court adopted the parties’ proposed briefing schedule,
accommodated requests to exceed word limits, and did not limit either side in calling
live witnesses at the hearing. See, e.g., ECF No. 29. This Court notes this up top to
emphasize it is Plaintiff’s burden to demonstrate standing and, as the case law
teaches, establishing standing is dependent on the unique facts and context of each
case. There need not be a case directly on point—instead, this Court looks to both
established principles from the cases that govern its analysis and the unique facts of
this case to determine whether Plaintiff has met its burden.
This Court began the hearing on Plaintiff’s motion by determining which
Defendants have legal authority to take certain actions. This consideration is not
determinative of Plaintiff’s standing, but it is certainly relevant. Both sides agree
that, ultimately, the UF Board of Trustees (BOT) is the entity responsible for directly
regulating registered student organizations.
Neither the Governor, nor the Chancellor, nor the BOG have the formal power
to punish student organizations. The BOG has delegated such regulatory authority
to the Boards of Trustees of its constituent universities, and the record is devoid of
any evidence that the BOG has taken steps to officially wrest back control. And as
for the BOT, this Court finds, based on the record, that at the time of filing, the
University of Florida had taken no steps to deactivate Plaintiff following advice from
outside counsel suggesting that deactivation would risk opening the BOT members
to personal liability. See https://thefloridachannel.org/videos/11-9-23-florida-board-
of-governors-meeting/ (Nov. 9, 2023 Bd. of Govs. Meeting at 2:31-2:33) (last visited
Jan. 29, 2024).
This Court’s finding is based on the fact that nobody introduced any evidence
of additional actions the University took in furtherance of the memorandum before
Plaintiff filed its complaint. In addition, based on the recording of the November 9th
BOG meeting, this Court can reasonably infer that following the transmission of the
Chancellor’s memorandum, officials at the University of Florida communicated to
the Chancellor that his facts were wrong—the University had investigated and
learned that Plaintiff is fully autonomous from the national SJP organization—and
that the BOT had “liability concerns” with respect to deactivation. In short, this
Court finds that the University does not intend to deactivate Plaintiff consistent with
the Chancellor’s memorandum.
But even if the BOT has not taken any actions in furtherance of deactivation,
Plaintiff asserts that the other Defendants need not have the formal power to punish
registered student organizations for Plaintiff to have standing against them. As a
general legal principle, Plaintiff is correct. At the hearing, much discussion was had
regarding Judge Newsom’s opinion discussing and applying this principle in Speech
First, Inc. v. Cartwright, 32 F.4th 1110, 1120 (11th Cir. 2022). But the general
principle does not insulate Plaintiff from its burden to come forward with evidence
demonstrating a cognizable constitutional injury in the first instance.
In Speech First, the Eleventh Circuit held that the district court erred in
concluding that the student speech at issue was not reasonably chilled because those
students faced no credible threat of enforcement where the task force responsible for
implementing the challenged university policy had no authority to discipline
students. Whether the student’s speech was, in fact, chilled was not in dispute in
Speech First. Indeed, the verified amended complaint in that case included dozens
of factual allegations describing the ways in which the organization’s student
members were self-censoring under the challenged policy. See Amended Complaint
at 22–33, Speech First, Inc. v. Cartwright, Case No.: 6:21cv313-GAP-GJK (M.D.
Fla. Mar. 27, 2021), ECF No. 30. Ultimately, the question on appeal was whether
the students’ self-censorship was objectively reasonable. In answering this question
in the affirmative, the Eleventh Circuit determined that notwithstanding the task
force’s inability to directly discipline students for violating the challenged policy, a
reasonable college student would be intimidated by subjection to the policy and the
task force’s role in enforcing it. 32 F.4th at 1124.
Plaintiff hangs its hat on Judge Newsom’s conclusion that “[b]ecause the
[challenged] policy objectively chills student speech, Speech First’s members have
standing to challenge it.” Id. But, again, this conclusion was not premised on some
hypothetical chill. Instead, Speech First’s standing was based on a record with
dozens of sworn factual allegations demonstrating that the organization’s members
were actually self-censoring for fear of violating the challenged policy.
Here, on the other hand, the record is devoid of any evidence that Plaintiff’s
members or prospective members have self-censored.2 Instead, the only evidence
before this Court regarding the effect that this threat of deactivation has had on
Plaintiff is a declaration from one of its student members that demonstrates only that
the organization’s members and unidentified prospective members are “scared,”
“disheartened,” and “disappoint[ed],” when it comes to the Chancellor’s
memorandum. ECF No. 1-4 ¶¶ 40, 41, 43. This Court asked Plaintiff’s counsel on
the record at the hearing to identify “specific allegations or facts through declarations
2 Of course, Plaintiff could also demonstrate that its members continue to speak despite a
credible threat of prosecution for purposes of establishing an injury-in-fact. But, as this Court notes
below, the record is devoid of facts giving rise to a reasonable inference that any criminal
investigation or prosecution is imminent with respect to Plaintiff’s activities or speech.
and/or complaints that puts meat on the bones as to what the fear is causing
somebody to do or not do.” Tr. at 51–52. Plaintiff’s counsel responded that “with
respect to the members and their participation in the group, we’re limited to what’s
in paragraph 43 of the declaration.” Id. at 52. That is, the only evidence that Plaintiff
has come forward with to demonstrate that its members’ or prospective members’
speech or association is chilled is the statement that “multiple current and potential
members of UF SJP are afraid of being punished or investigated by the University
or law enforcement because of their participation in our group.” ECF No. 1-4 ¶ 43.
But evidence of subjective fear or anxiety, on its own, does not give rise to a
cognizable constitutional injury.
This Court does not fault Plaintiff’s members for feeling anxious about the
fact that the Governor—arguably the most powerful man in Florida—has repeatedly
disparaged Plaintiff’s members as “terrorists” who support “jihad” and repeated the
falsehood that their organization has been “deactivated.” But this Court rejects
counsel’s suggestion that it should infer that because students are fearful, that means
that they are going to self-censor or continue to speak under the threat of future
punishment—this Court cannot rewrite Plaintiff’s declarations to assist Plaintiff in
meeting its burden. Plaintiff’s suggestion that because someone, even someone
cloaked with great power, makes coercive statements that cause college students to
fear some hypothetical future harm means they must have standing stretches the
injury-in-fact requirement beyond the boundaries that case law has established for
standing in First Amendment pre-enforcement challenges. This Court is not free to
exceed those boundaries.
In addition, to the extent Plaintiff asserts its board members remain
determined to spread their message about the Palestinian people despite their fears
of punishment or criminal investigation, the record demonstrates that their fears of
punishment or criminal investigation are not reasonable. For starters, Plaintiff has
proffered no evidence to raise a reasonable inference that any criminal investigation
or prosecution is imminent.3 Instead, Plaintiff’s evidence only demonstrates that the
Chancellor’s memorandum implied criminal liability based on Plaintiff’s association
with the national SJP organization, but despite this implication, Plaintiff’s board
members “are still determined to stand up for [their] morals and spread awareness
in [the] community about the rights and cause of Palestinian people.” ECF No. 1-4
¶ 45. This might have been a different case had Plaintiff presented testimony from
members demonstrating an unusually pronounced law enforcement presence at their
meetings following the memorandum or requests for voluntary questioning
concerning their organization’s activities. Such evidence might demonstrate that
3 This also begs the question of whether Plaintiff’s asserted chill based on some fear of
criminal prosecution could even be redressed with an injunction against the Governor, the BOG,
or the BOT Defendants, when the law enforcement officials who would ultimately conduct such
an investigation are not parties to this action, nor would they be bound by an injunction against the
Defendants in this case.
authorities were indeed acting in furtherance of the coercive threats from the
Governor or the Chancellor. But those are not the facts before me.
Simply put, Plaintiff has failed to demonstrate a substantial likelihood of
establishing an injury-in-fact. Plaintiff’s evidence falls short of demonstrating that
any member’s or prospective member’s speech or association is reasonably
chilled—or chilled at all—for fear of punishment. Indeed, as noted on the record at
the hearing, this might also be a different case if the facts demonstrated that the threat
of deactivation was accompanied by evidence of some action in furtherance of it. If
Plaintiff could point to evidence that the University was taking actions to circumvent
its normal procedures for disciplining student organizations following the
memorandum, this might also demonstrate that these administrators were cowed by
the memorandum and its threat of adverse employment actions for failing to
deactivate Plaintiff. But, again, those are not the facts before me.
In short, the record demonstrates that neither deactivation nor criminal
investigation is imminent. Instead, this Court finds that no actions have been taken
in pursuit of deactivation under the Chancellor’s memorandum. And, as this Court
has already found, the Defendants with legal authority to directly regulate registered
student organizations do not intend to deactivate Plaintiff. The Chancellor has
switched tactics from deactivation to other actions the University might take in lieu
of deactivation—but Plaintiff has proffered no record evidence demonstrating that
the University of Florida has taken any action based on the Chancellor’s statements
on November 9th. The Chancellor has also acknowledged that the premise upon
which his memorandum is based—that Plaintiff is under the “headship” or control
of the national SJP organization—is false, and thus, it is not clear whether the
memorandum even continues to apply to Plaintiff.
Ultimately, the evidence before this Court demonstrates that “deactivation”
remains simply an amorphous threat contingent upon either the BOT reevaluating
its aversion to possibly incurring personal liability or the BOG taking some action
to pass a new regulation to take back its delegation of authority over student
organizations. Absent any evidence to suggest either of these future contingencies
are imminent, the asserted injury of threatened deactivation remains merely
speculative.
For these reasons, this Court finds that Plaintiff has not met its burden to
demonstrate a substantial likelihood of establishing standing for purposes of a
preliminary injunction.4 Accordingly, Plaintiff’s motion, ECF No. 3, is DENIED
with respect to all Defendants. Because Plaintiff lacks standing for purposes of the
4 Defendants raise additional arguments concerning the justiciability of Plaintiff’s claim.
This Court need not address each argument in full—although this Court recognizes that some of
these asserted deficiencies preclude preliminary injunctive relief. For instance, Plaintiff has not
demonstrated how an injunction against the Governor would redress its asserted injuries when the
Governor has neither the legal authority to discipline student organizations nor the ability to retract
the Chancellor’s memorandum.
motion for preliminary injunction, this Court does not have jurisdiction to rule on
the merits of the First Amendment claim.
SO ORDERED on January 31, 2024.
s/Mark E. Walker ____
Chief United States District Judge