Speech First, Inc. v. Sands

Cite as: 601 U. S. ____ (2024) 1

T
HOMAS, J., dissenting

SUPREME COURT OF THE UNITED STATES
SPEECH FIRST, INC. v. TIMOTHY SANDS,
INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY
AS PRESIDENT OF VIRGINIA POLY-
TECHNIC INSTITUTE AND
STATE UNIVERSITY
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23–156. Decided March 4, 2024
The petition for a writ of certiorari is granted. The judg-
ment with respect to the Bias Policy claims is vacated, and
the case is remanded to the United States Court of Appeals
for the Fourth Circuit with instructions to dismiss those
claims as moot. See United States v. Munsingwear, Inc.,
340 U. S. 36 (1950). J
USTICE JACKSON, dissenting: I would
deny the petition. In my view, the party seeking vacatur
has not established equitable entitlement to that remedy.
See Acheson Hotels, LLC v. Laufer, 601 U. S. ___ (2023)
(J
ACKSON, J., concurring in the judgment).
J
USTICE THOMAS, with whom JUSTICE ALITO joins, dis-
senting.
Speech First, a national membership organization seek-
ing to protect free speech on college campuses, brought suit
against Virginia Tech to enjoin the university’s “bias inter-
vention and response team policy.” Under that policy, Vir-
ginia Tech encourages students to report one another for
expressions of “bias”—defined as any “expressio[n] against
a person or group because of
” an enumerated list of charac-
teristics. App. in No. 21–2061 (CA4), p. 140. Students are
instructed to “[r]eview” their “language, images, and other
forms of communication to make sure all groups are fairly
represented.” Id., at 144. A “bias intervention and re-

2 SPEECH FIRST, INC. v. SANDS
T
HOMAS, J., dissenting
sponse team” made up of university officials then investi-
gates reports, with the option to refer students for discipline
or to the police. Speech First argues that this policy
amounts to “a literal speech police.” Pet. for Cert. i. It con-
tends that the policy violates the First Amendment by
chilling its student-members’ speech, causing students to
stay silent on controversial or unpopular issues for fear of
being reported to the university. The Court of Appeals for
the Fourth Circuit held that Speech First lacked standing
to bring this claim because the university’s policy does not
objectively chill students’ speech. 69 F. 4th 184, 197
(2023).
1
It acknowledged that this conclusion diverged from
that of three other Courts of Appeals. Id., at 197–198.
Speech First asks us to review whether Virginia Tech’s
bias response policy objectively chills students’ speech.
2
I
would grant the petition. It raises an important question
affecting universities nationwide; Speech First estimates
that over 450 universities have similar bias-reporting
schemes. Pet. for Cert. 7. Yet, because of the split among
——————
1
To establish organizational standing under our precedent, Speech
First must first show that one of its student-members has suffered an
injury. See Students for Fair Admissions, Inc. v. President and Fellows
of Harvard College, 600 U. S. 181, 199 (2023). The Courts of Appeals
have reasoned that Speech First’s students suffered an injury sufficient
to confer standing if it could show the bias response policies chilled stu-
dents’ speech.
2
Shortly before Speech First petitioned for certiorari, Virginia Tech
changed its policy. Other universities have attempted a similar maneu-
ver, but two Courts of Appeals have found that these policy changes did
not moot Speech First’s challenges. See Speech First, Inc. v. Fenves, 979
F. 3d 319, 328 (CA5 2020) (“This is not the first appeal in which a public
university has had a sudden change of heart, during litigation, about the
overbreadth and vagueness of its speech code, and then advocated moot-
ness”); see also Speech First, Inc. v. Schlissel, 939 F. 3d 756, 769–770
(CA6 2019). Of course, a defendant’s voluntary cessation of its chal-
lenged conduct does not always moot a case. See Friends of the Earth,
Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 189
(2000). I thus refer to Virginia Tech’s policy in the present tense.

3 Cite as: 601 U. S. ____ (2024)
T
HOMAS, J., dissenting
the Courts of Appeals, many of these universities face no
constitutional scrutiny, simply based on geography. I have
serious concerns that bias response policies, such as Vir-
ginia Tech’s, objectively chill students’ speech.
The First Amendment provides that “Congress shall
make no law . . . abridging the freedom of speech.” “[S]tate
colleges and universities,” including Virginia Tech, “are not
enclaves immune from the sweep of the First Amendment.”
Papish v. Board of Curators of Univ. of Mo., 410 U. S. 667,
670 (1973) (per curiam) (internal quotation marks omitted).
Although the First Amendment applies most straightfor-
wardly to government regulations that directly restrict
speech, this Court has recognized that “constitutional vio-
lations [can also] arise from the deterrent, or ‘chilling,’ ef-
fect of governmental regulations.” Laird v. Tatum, 408
U. S. 1, 11 (1972). After all, “the threat of invoking legal
sanctions and other means of coercion, persuasion, and in-
timidation” may cause self-censorship in violation of the
First Amendment just as acutely as a direct bar on speech.
Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 67 (1963).
In applying these principles, the Courts of Appeals have
divided over whether bias response policies have a “chilling
effect” on students’ speech. Compare Speech First, Inc. v.
Cartwright, 32 F. 4th 1110, 1124 (CA11 2022); Speech First,
Inc. v. Fenves, 979 F. 3d 319, 338 (CA5 2020); and Speech
First, Inc. v. Schlissel, 939 F. 3d 756, 765 (CA6 2019); with
69 F. 4th, at 197; and Speech First, Inc. v. Killeen, 968 F. 3d
628, 644 (CA7 2020). In this case, the Fourth Circuit held
that Virginia Tech’s bias response policy does not chill stu-
dents’ speech because the bias response team lacks author-
ity to discipline or otherwise punish students and the im-
plementation of the policy is not so heavyhanded that it
deters students’ speech. 69 F. 4th, at 196–197.
I am skeptical of the Fourth Circuit’s conclusion. The
scope of Virginia Tech’s policy combined with how it is en-
forced suggests that the university is stifling students’

4 SPEECH FIRST, INC. v. SANDS
T
HOMAS, J., dissenting
speech, at least enough to provide Speech First standing to
pursue its First Amendment claim. First, the university’s
bias response policy appears limitless in scope. According
to Virginia Tech, “bias incidents” are “expressions against
a person or group” based on “age, color, disability, gender,
gender identity, gender expression, genetic information, na-
tional origin, political affiliation, race, religion, sexual ori-
entation, veteran status, or any other basis protected by
law.” App. in No. 21–2061 (CA4), at 140. The university
provided examples of bias incidents, such as “words or ac-
tions that contradict the spirit of the Principles of Commu-
nity” and “jokes that are demeaning to a particular group
of people.” Ibid. Unsurprisingly, such an expansive policy
has prompted students to report any and all perceived
slights. For example, one report was submitted when “a
student in a University residence hall overheard several
male students privately talking crap about the women who
were playing in a snowball fight, calling them not ‘ath-
letic.’” Speech First, Inc. v. Sands, 2021 WL 4315459, *10
(WD Va., Sept. 22, 2021) (some internal quotation marks
and alteration omitted). Another person submitted a report
after someone “observed the words Saudi Arabia on the
white board of [a] room”—despite acknowledging that “[i]t
was unclear what the motive or complete message of the
text originally was.” Decl. of C. Norris in No. 7:21–cv–
00203 (WD Va., Apr. 12, 2021), ECF Doc. 4–2, p. 123. Other
universities with bias response policies have received simi-
lar reports. See, e.g., App. in No. 21–2061 (CA4), at 254
(explaining that Ohio State University received a report for
“a chalk message stating ‘Build the Wall’”); id., at 252
(highlighting that Texas Tech University received a report
for a student group tweeting “ ‘All lives don’t matter . . .
#BlackLivesMatter’”).
Second, the threshold for reporting is intentionally low.
The policy permits anonymous reporting, meaning there is
little to no social cost for accusing a classmate of bias. And,

5 Cite as: 601 U. S. ____ (2024)
T
HOMAS, J., dissenting
students are encouraged to report other students for any-
thing that even hints of “bias.” Indeed, the university ran
a campaign: “[I]f you hear or see something that feels like a
bias incident, statement, or expression, we encourage you
to make a report. In short, if you see something, say some-
thing!” Id., at 200. The policy does not limit the ability to
report to fellow students—anyone in the “university com-
munity” may report Virginia Tech students for bias inci-
dents. Id., at 141. Reports may also cover incidents that
take place outside the university, including off campus or
on social media. Thus, the policy follows Virginia Tech stu-
dents wherever they go. From the moment a student enters
the university until graduation, he is under the university’s
surveillance.
Third, a report can have weighty consequences. After a
report is filed, it goes to the bias response team. The team
includes university officials from the Office of the Dean of
Students, Office for Equity and Accessibility, Office for In-
clusion and Diversity, Student Conduct, and the Virginia
Tech Police Department. The university officials may call
in the accused student—whom the policy pre-emptively la-
bels as the “perpetrator”—for a meeting. The team may re-
quire “[i]nterventions of either an educational or restora-
tive nature.” Id., at 372. The team even possesses the
authority to refer a student for formal discipline or to the
police. And, of course, every report—regardless of whether
the team determines bias exists—is recorded and kept on
permanent file by the university. See ibid.; see also 69
F. 4th, at 212 (Wilkinson, J., dissenting). Thus, even if the
“perpetrator” is not technically required to accept the
team’s invitation to meet, it is hard to believe a college stu-
dent could so easily ignore a university official’s request, es-
pecially when the report will be filed and “the referral
power lurks in the background of the invitation.” Schlissel,
939 F. 3d, at 765.
Considering the scope and enforcement of the university’s

6 SPEECH FIRST, INC. v. SANDS
T
HOMAS, J., dissenting
policy, it is at least a close question whether “students
[may] self-censor, fearing the consequences of a report to
[the bias response team] and thinking that speech is no
longer worth the trouble.” 69 F. 4th, at 204 (Wilkinson, J.,
dissenting). This seems particularly true regarding contro-
versial issues where dissenting opinions might be deemed
biased.
This petition presents a high-stakes issue for our Nation’s
system of higher education. Until we resolve it, there will
be a patchwork of First Amendment rights on college cam-
puses: Students in part of the country may pursue chal-
lenges to their universities’ policies, while students in other
parts have no recourse and are potentially pressured to
avoid controversial speech to escape their universities’ scru-
tiny and condemnation. We should grant certiorari to re-
solve this issue.