Petition for Writ of Certiorari — Speech First, Inc., Petitioner v. Timothy Sands, Individually and in His Official Capacity as President of Virginia Polytechnic Institute and State University

Supreme Court briefAug 14, 2023

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No. ______

In the Supreme Court of the United States

SPEECH FIRST, INC.,

Petitioner,

TIMOTHY SANDS, in his individual capacity and

official capacity as President of Virginia Polytechnic

Institute and State University,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

J. Michael Connolly

Counsel of Record

Cameron T. Norris

James F. Hasson

Thomas S. Vaseliou

CONSOVOY MCCARTHY PLLC

1600 Wilson Blvd., Ste. 700

Arlington, VA 22209

(703) 243-9423

mike@consovoymccarthy.com

August 14, 2023

Attorneys for Petitioner

QUESTION PRESENTED

Hundreds of universities have a “bias-response

team”—an official entity that solicits reports of bias,

tracks them, investigates them, asks to meet with the

perpetrators, and threatens to refer students for formal discipline. Universities formally define “bias” to

cover wide swaths of protected speech. Bias-response

teams are staffed by administrators, disciplinarians,

and even police officers—a literal speech police.

The Fifth, Sixth, and Eleventh Circuits hold that

bias-response teams objectively chill students’ speech;

but the Fourth and Seventh Circuits hold that they

don’t. Compare Speech First, Inc. v. Schlissel, 939 F.3d

756 (6th Cir. 2019); Speech First, Inc. v. Fenves, 979

F.3d 319 (5th Cir. 2020); Speech First, Inc. v. Cartwright, 32 F.4th 1110 (11th Cir. 2022), with Speech

First, Inc. v. Sands, 69 F.4th 184 (4th Cir. 2023);

Speech First, Inc. v. Killeen, 968 F.3d 628 (7th Cir.

2020). All five cases in this 3-2 split involve the same

plaintiff, the same procedural posture, and the same

basic facts. To quote Judge Wilkinson’s dissent below:

“This circuit split creates a patchwork of First Amendment jurisprudence for schools across the country” on

“the vitally important issue of free speech.” Appendix

(App.) 73.

The question presented is:

Whether bias-response teams objectively chill students’ speech.

RULE 29.6 STATEMENT

Speech First, Inc., has no parent company or publicly held company with a 10% or greater ownership

interest in it.

iii

RELATED PROCEEDINGS

United States District Court (W.D. Va.):

Speech First, Inc. v. Sands, No. 7:21-cv-203 (Sept.

22, 2021) (opinion granting in part and denying

in part motion for preliminary injunction)

United States Court of Appeals (4th Cir.):

Speech First, Inc. v. Sands, No. 21-2061 (May 31,

2023) (opinion below)

TABLE OF CONTENTS

Table of Cited Authorities..........................................vi

Opinions Below ............................................................1

Jurisdiction ..................................................................1

Constitutional Provisions Involved ............................1

Introduction .................................................................2

Statement of the Case .................................................4

A. Universities adopt policies to silence

“biased” speech by students. ..........................4

B. Virginia Tech adopts a bias-incidents

policy enforced by its Bias Intervention

and Response Team. .......................................8

C. Speech First sues on behalf of its

members who attend Virginia Tech............. 11

D. The Fourth Circuit, over Judge

Wilkinson’s dissent, rules for Virginia

Tech. .............................................................. 13

Reasons for Granting the Petition ............................ 16

Whether bias-response teams objectively

chill speech is an important question that

has split five circuits. ................................... 17

II. This case is an ideal vehicle for reaching

the question presented. ................................ 22

III. The Fourth Circuit got it wrong. ................. 26

Conclusion ................................................................. 32

Appendix

Appendix A

Opinion in the United States

Court of Appeals for the Fourth

Circuit

(May 31, 2023) .......................... App.1

Appendix B

Memorandum Opinion in the

United States District Court for

the Western District of Virginia

(Sept. 22, 2021) ....................... App.81

Appendix C

Order in the United States

District Court for the Western

District of Virginia

(Sept. 22, 2021) ..................... App.147

Cases

TABLE OF CITED AUTHORITIES

303 Creative LLC v. Elenis,

143 S.Ct. 2298 (2023) ...................................... 5, 20

Am. Commc’ns Ass’n, C.I.O. v. Douds,

339 U.S. 382 (1950) ............................................. 26

Axon Enterprise, Inc. v. FTC,

143 S.Ct. 890 (2023) ............................................ 19

Backpage.com, LLC v. Dart,

807 F.3d 229 (7th Cir. 2015) ............................... 30

Bantam Books, Inc. v. Sullivan,

372 U.S. 58 (1963) ............................. 26, 27, 28, 31

Christian Legal Soc. v. Martinez,

561 U.S. 661 (2010) ...............................................2

Chrysafis v. Marks,

141 S.Ct. 2482 (2021) .......................................... 25

Counterman v. Colorado,

143 S.Ct. 2106 (2023) .............................. 19, 26, 30

Fort Wayne Books, Inc. v. Indiana,

489 U.S. 46 (1989) ............................................... 25

Friends of the Earth, Inc. v. Laidlaw Env’t Servs.

(TOC), Inc.,

528 U.S. 167 (2000) ............................................. 16

Fulton v. City of Philadelphia,

141 S.Ct. 1868 (2021) .......................................... 25

Harris v. Quinn,

573 U.S. 616 (2014) ............................................ 21

vii

Healy v. James,

408 U.S. 169 (1972) ......................................... 4, 20

Keyishian v. Bd. of Regents of Univ. of N.Y.,

385 U.S. 589 (1967) ......................................... 4, 20

Lac du Flambeau Band of Lake Superior Chippewa

Indians v. Coughlin,

143 S.Ct. 1689 (2023) .......................................... 19

Laird v. Tatum,

408 U.S. 1 (1972) ................................................. 26

Lane v. Franks,

573 U.S. 228 (2014) ............................................. 20

Levin v. Harleston,

966 F.2d 85 (2d Cir. 1992) .................................. 32

Lorillard Tobacco Co. v. Reilly,

533 U.S. 525 (2001) ............................................. 20

Mahanoy Area Sch. Dist. v. B.L. ex rel. Levy,

141 S.Ct. 2038 (2021) .......................................... 20

Manhattan Cmty. Access Corp. v. Halleck,

139 S.Ct. 1921 (2019) .......................................... 20

Miami Herald Pub. Co. v. Tornillo,

418 U.S. 241 (1974) ............................................. 25

MOAC Mall Holdings LLC v. Transform Holdco

LLC,

143 S.Ct. 927 (2023) ............................................ 19

Okwedy v. Molinari,

333 F.3d 339 (2d Cir. 2003) .................... 27, 28, 31

Papish v. Bd. of Curators of Univ. of Mo.,

410 U.S. 667 (1973) ...............................................4

viii

Parents Involved in Community Schools v. Seattle

School Dist. No. 1,

551 U.S. 701 (2007) ............................................. 12

Ramirez v. Collier,

142 S.Ct. 1264 (2022) .......................................... 25

Rutan v. Republican Party of Ill.,

497 U.S. 62 (1990) ............................................... 32

Snyder v. Phelps,

562 U.S. 443 (2011) ...............................................4

Sorrell v. IMS Health Inc.,

564 U.S. 552 (2011) ............................................. 26

Speech First, Inc. v. Cartwright,

2021 WL 3399829 (M.D. Fla. July 29) ............... 18

Speech First, Inc. v. Cartwright,

32 F.4th 1110 (11th Cir. 2022) .................i, 14, 23,

26, 29, 30, 31

Speech First, Inc. v. Fenves,

979 F.3d 319 (5th Cir. 2020) .....................i, 2, 3, 6,

14, 26, 29, 30

Speech First, Inc. v. Killeen,

968 F.3d 628 (7th Cir. 2020) .....................i, 14, 19,

23, 26, 29

Speech First, Inc. v. Sands,

69 F.4th 184 (4th Cir. 2023) ................................. i

Speech First, Inc. v. Schlissel,

939 F.3d 756 (6th Cir. 2019) ................i, 6, 14, 23,

24, 26, 29, 30, 31

Students for Fair Admissions, Inc. v. President &

Fellows of Harvard Coll.,

143 S.Ct. 2141 (2023) .......................................... 26

Susan B. Anthony List v. Driehaus,

573 U.S. 149 (2014) ............................................. 26

Ward v. Rock Against Racism,

491 U.S. 781 (1989) ............................................. 20

Whole Woman’s Health v. Jackson,

141 S.Ct. 2494 (2021) .......................................... 25

Statutes

28 U.S.C. §1254 ...........................................................1

Other Authorities

A Letter on Justice and Open Debate, Harper’s

(July 7, 2020), perma.cc/48K8-H73R ...................2

Belkin, Stanford Faculty Say Anonymous Student

Bias Reports Threaten Free Speech, Wall St. J.

(Feb. 23, 2023), perma.cc/4ZWC-LVT6 ................7

Bipart. Policy Ctr., Campus Free Expression: A New

Roadmap (Nov. 2021), perma.cc/7LB7-E7CA ......2

Cabranes, For Freedom of Expression, For Due

Process, and For Yale: The Emerging Threat to

Academic Freedom at a Great University,

35 Yale L. & Pol. Rev. Inter Alia 345 (2017)........6

Chemerinsky & Gillman, Free Speech

on Campus (2017) .................................................2

College Pulse et al., College Free Speech Rankings

(2021), perma.cc/8TAA-NZ8H ............................ 21

Court Battles, Speech First,

perma.cc/4MLT-2NR6 ..................................... 7, 12

Ed. Bd., Virginia Tech’s Bias Response Team and the

First Amendment, Wall St. J. (June 11, 2023),

perma.cc/JY86-QJEY .......................................... 18

Ferguson, Bias-Response Teams Are a Bad Idea,

Chron. of Higher Ed. (June 5, 2023) ....................6

FIRE, Guide to Free Speech on Campus

(2012) .....................................................................2

Garces et al., Legal Challenges to Bias Response

Teams on College Campuses,

51 Sage Journals 431 (2022)............................... 18

Hoffman, Summers Tells Sun He Worries Economic

Policy Being Driven by ‘Sentiment,’ ‘Politics,’ N.Y.

Sun (Mar. 4, 2022), perma.cc/9GVS-6SPH ..........5

If You See Something, Say Something, DHS,

perma.cc/USW7-UGQH ...................................... 10

Lee, General Counsel’s Corner: Bias Response Teams

– No Easy Answers, JD Supra (Feb. 2, 2022),

perma.cc/28NY-7L9Y .......................................... 21

Miller et al., A Balancing Act: Whose Interests Do

Bias Response Teams Serve?,

42 Rev. of Higher Ed. 313 (2018) .........................6

Note, University Bias Response Teams: Balancing

Student Freedom from Discrimination and First

Amendment Rights Through Student Outreach,

55 Ind. L. Rev. 809 (2022)................................... 18

Report a Bias Crime or Incident, Ore. Dep’t of

Justice, perma.cc/KQ3P-HUNN ......................... 22

Responding to Bias, NYC,

perma.cc/WU5A-7FBT ........................................ 22

Schneider, ‘Bias Teams’ Welcome the Class of 1984,

Wall St. J. (Aug. 5, 2019),

perma.cc/KMA3-33DK ..........................................5

Schneider, A Year of Discontent on Campus,

Dispatch (Feb. 6, 2020) .........................................3

Schneider, Virginia Tech on the Hunt for Campus

Penis Artists, The College Fix (May 3, 2019),

perma.cc/JSL9-RT8V .......................................... 10

Shapiro et al., Supreme Court Practice

(11th ed. 2019) .................................................... 17

Shultz, Ice Ice, Maybe?: Do University Bias Incident

Report Teams Really Chill Student Speech, or

Are They Just a Conduit?,

U. Cinn. L. Rev. Blog (Oct. 21, 2022) ................. 18

Speech First, Free Speech in the Crosshairs: Bias

Reporting on College Campuses (2022),

perma.cc/DGR4-ERU3 .................................... 7, 21

Steinbaugh, Hundreds of Campuses Encourage

Students to Turn in Fellow Students for Offensive

Speech, Wash. Examiner (Feb. 21, 2017),

perma.cc/YL4Q-PB52 ............................................3

Unsafe Space: The Crisis of Free Speech on Campus

(Slater ed. 2016) ....................................................2

Yockey, Bias Response on Campus,

48 J.L. & Educ. 1 (2019) ..................................... 22

xii

Rules

S.Ct.R.10 .................................................................... 20

Constitutional Provisions

U.S. Const. art. III.......................................................1

U.S. Const. amend. I ...................................................1

U.S. Const. amend. XIV ..............................................1

OPINIONS BELOW

The Fourth Circuit’s opinion is reported at 69

F.4th 184 and is reproduced at App.1-80. The Western

District of Virginia’s opinion is reported at 2021 WL

4315459 and is reproduced at App.81-146.

JURISDICTION

The Fourth Circuit’s judgment was entered on

May 31, 2023. This Court has jurisdiction under 28

U.S.C. §1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

Article III vests “[t]he judicial Power of the United

States” in the federal courts and limits that power to

certain “Cases” and “Controversies.” U.S. Const. art.

III, §§1-2.

The Free Speech Clause of the First Amendment

prohibits Congress from abridging “the freedom of

speech”; the Fourteenth Amendment extends that

prohibition to the States and guarantees “due process

of law.” U.S. Const. amends. I, XIV.

INTRODUCTION

This Court hasn’t addressed the free-speech rights

of college students since at least 2010. See Christian

Legal Soc. v. Martinez, 561 U.S. 661 (2010). Over that

time, those rights have not fared well. “[C]ampus censorship has reached epidemic levels.” Unsafe Space:

The Crisis of Free Speech on Campus 2 (Slater ed.

2016). “Every month, if not every week, has brought

additional instances of campuses being urged to punish students for their speech.” Chemerinsky & Gillman, Free Speech on Campus 7 (2017). And universities, “in a spirit of panicked damage control, are delivering.” A Letter on Justice and Open Debate, Harper’s

(July 7, 2020), perma.cc/48K8-H73R. The result, according to “overwhelming survey research,” is that

students don’t feel free to speak. Bipart. Policy Ctr.,

Campus Free Expression: A New Roadmap 6 (Nov.

2021), perma.cc/7LB7-E7CA. “Simply put, at most of

America’s colleges and universities, speech is far from

free.” FIRE, Guide to Free Speech on Campus 5 (2012).

Though the First Amendment contains no exception for “hateful,” “harassing,” or “biased” speech, universities often try to suppress it. Speech codes—outright prohibitions on speech—are one tool. But speech

codes have a terrible record in court. Fenves, 979 F.3d

at 338-39 & n.17. Precisely because speech codes are

often struck down, universities have looked for subtler, more sophisticated ways to chill “offensive”

speech. CA4.Joint.App’x (JA) 246.

Enter the bias-response team. Instead of outright

banning biased speech, these teams deter it by threatening students with adverse consequences. They also

burden it by imposing a series of administrative and

other costs on students who commit “bias incidents.”

Jurists and commentators have dubbed these teams

•

“the clenched fist in the velvet glove of student

speech regulation,” Fenves, 979 F.3d at 338;

•

a “bureaucratic superstructure” with “such incipient inquisitorial overtones” that it “turns

its campus into a surveillance state,” App.40,

44 (Wilkinson, J., dissenting); and

•

“the stuff of Orwell, although even he might

have found the name ‘Bias Response Team’ to

be over-the-top,” Steinbaugh, Hundreds of

Campuses Encourage Students to Turn in Fellow Students for Offensive Speech, Wash. Examiner (Feb. 21, 2017), perma.cc/YL4Q-PB52.

The resulting atmosphere created by these teams is

arguably even “more stifling” than traditional speech

codes. Schneider, A Year of Discontent on Campus,

Dispatch (Feb. 6, 2020).

Bias-response teams are designed to get as close

to the constitutional line as possible, so it’s no surprise

that they’ve divided the lower courts. Five circuits

have considered five lawsuits. All were filed by Speech

First, against major universities, challenging similarly structured teams. The circuits have split 3-2 on

whether Speech First has Article III standing—specifically on whether bias-response teams objectively chill

students’ speech. Because the answer to that question

is vitally important to the rights of college students

nationwide, this Court should grant certiorari.

STATEMENT OF THE CASE

Bias-response teams are the latest in a long-running effort by universities to deter certain undesirable

speech. Virginia Tech’s team—the Bias Intervention

Response Team, or BIRT—is a classic of the genre.

The Fourth Circuit held that it doesn’t objectively chill

speech, joining the bottom of a 3-2 circuit split.

A. Universities adopt policies to silence

“biased” speech by students.

The First Amendment reflects “‘a profound national commitment to the principle that debate on

public issues should be uninhibited, robust, and wideopen.’” Snyder v. Phelps, 562 U.S. 443, 452 (2011). The

“‘vigilant protection’” of these freedoms is “‘nowhere

more vital than in the community of American

schools.’” Healy v. James, 408 U.S. 169, 180 (1972).

Universities are “peculiarly the marketplace of ideas,”

training future leaders “through wide exposure to that

robust exchange of ideas which discovers truth out of

a multitude of tongues, rather than … authoritative

selection.” Keyishian v. Bd. of Regents of Univ. of N.Y.,

385 U.S. 589, 603 (1967) (cleaned up). So the “mere

dissemination of ideas—no matter how offensive to

good taste—on a state university campus may not be

shut off in the name alone of ‘conventions of decency.’”

Papish v. Bd. of Curators of Univ. of Mo., 410 U.S. 667,

670 (1973).

Yet universities across the country have resisted

these principles. Instead of allowing free-ranging debate, many colleges are more interested in protecting

students from ideas that make them uncomfortable.

They embody the “unfortunate tendency by some to

defend First Amendment values only when they find

the speaker’s message sympathetic.” 303 Creative

LLC v. Elenis, 143 S.Ct. 2298, 2321 (2023). As former

Harvard president Lawrence Summers recently

warned, universities too often “resist intellectual diversity, including conservative and non-coastal viewpoints,” and have “creat[ed] a stifling orthodoxy … as

oppressive as McCarthyism.” Hoffman, Summers

Tells Sun He Worries Economic Policy Being Driven by

‘Sentiment,’ ‘Politics,’ N.Y. Sun (Mar. 4, 2022), perma.

cc/9GVS-6SPH. Universities do this by adopting policies and procedures that discourage speech by students who reject the prevailing campus orthodoxy.

One rapidly growing effort to suppress speech is

the “bias response team.” Living up to their Orwellian

name, these teams encourage students to monitor

each other’s speech and to report incidents of “bias” to

the university. “Bias” is defined broadly and covers

protected speech on virtually any topic; in fact,

whether speech is “biased” often turns on the listener’s subjective reaction to it. JA.246, 249-51. Students have been reported to bias-response teams for,

among other things,

•

writing a satirical article about “safe spaces”;

•

tweeting “#BlackLivesMatter”;

•

chalking “Build the Wall” on a sidewalk; and

•

watching a video of Ben Shapiro.

JA.252-55; Schneider, ‘Bias Teams’ Welcome the Class

of 1984, Wall St. J. (Aug. 5, 2019), perma.cc/KMA333DK. Because accusers need not identify themselves,

these policies create “anonymous snitch system[s]”

where students “aggressively police one another’s

speech.” Ferguson, Bias-Response Teams Are a Bad

Idea, Chron. of Higher Ed. (June 5, 2023).

After receiving reports of a bias incident, the biasresponse team typically logs the incident, investigates

it, meets with the relevant parties, attempts to reeducate the “offender,” and recommends an intervention

(including formal or informal discipline). E.g., Fenves,

979 F.3d at 325-26; Schlissel, 939 F.3d at 762-63.

Bias-response teams are usually staffed by university

administrators, disciplinarians, and even police officers—a literal “speech police.” JA.245, 256. Studies

have found that, “[d]espite espousing educational philosophies,” bias-response teams really adopt a “punitive/criminal justice orientation toward focusing on individual acts and the individuals responsible.” Miller

et al., A Balancing Act: Whose Interests Do Bias Response Teams Serve?, 42 Rev. of Higher Ed. 313, 32627 (2018). As Judge Cabranes puts it, these campus

“‘Civility Police’ have started to adopt the tactics of the

real police”—except “to fight speech, not to fight

crime.” Cabranes, For Freedom of Expression, For Due

Process, and For Yale: The Emerging Threat to Academic Freedom at a Great University, 35 Yale L. & Pol.

Rev. Inter Alia 345, 360 (2017).

Though universities insist that bias-response

teams aren’t threatening, they know that students

don’t see it that way. According to a comprehensive

study by FIRE, bias-response teams “effectively establish a surveillance state on campus where students …

must guard their every utterance for fear of being reported to and investigated by the administration.”

JA.265. Professors, too, stress that these teams “result

in a troubling silence”: They leave students “afraid to

speak their minds” and empower virtually anyone to

“leverage bias reporting policies to shut down unpopular or minority viewpoints.” JA.264. Other professors

say these policies resemble “McCarthyism,” or “the

way citizens were encouraged to inform on one another by governments in the Soviet Union, East Germany and China.” Belkin, Stanford Faculty Say Anonymous Student Bias Reports Threaten Free Speech,

Wall St. J. (Feb. 23, 2023), perma.cc/4ZWC-LVT6.

Yet bias-response teams are proliferating. In

2017, more than 200 universities had bias-response

teams and the number was “growing rapidly.” JA.241.

By 2022, that number has more than doubled, with

more than 450 universities maintaining sophisticated

bias-reporting schemes. See Speech First, Free Speech

in the Crosshairs: Bias Reporting on College Campuses 3 (2022), perma.cc/DGR4-ERU3. To be sure,

Speech First has challenged several of these teams in

court, including Michigan’s Bias Response Team,

Texas’s Campus Climate Response Team, and Central

Florida’s Just Knights Response Team. Those teams

no longer exist: Once the appellate courts held that

Speech First likely had standing, all three universities signed binding settlement agreements eliminating their bias-response teams. See Court Battles,

Speech First, perma.cc/4MLT-2NR6. Despite these

victories, the overall trend is negative: Many more

universities are creating new bias-response teams or

clinging to old ones. Crosshairs 3.

B. Virginia Tech adopts a bias-incidents policy

enforced by its Bias Intervention and

Response Team.

Virginia Tech joined this unfortunate trend. For

years, it has monitored, logged, and responded to student speech through its “bias-incidents” policy. That

policy is enforced through a bias-response team, called

the Bias Intervention and Response Team or BIRT.

App.4; JA.368. BIRT is staffed with senior university

officials, including administrators with disciplinary

power. App.4-5 & n.1; JA.370. On BIRT are members

of the Office of Student Conduct, the Virginia Tech Police Department, and others. JA.370. BIRT’s purpose,

as reflected in its name, is straightforward: to “eliminate” biased speech through “immediate direct or indirect responses to bias-related incidents.” JA.369.

The University’s policy formally defines “bias incident.” JA.333. The definition is broad, legalistic, and

focused on speech: Bias incidents are “expressions

against a person or group” based on “age, color, disability, gender (including pregnancy), gender identity,

gender expression, genetic information, national origin, political affiliation, race, religion, sexual orientation, veteran status, or any other basis protected by

law.” App.4 (emphases added); see JA.333, 204. A bias

incident can occur on or off campus, including on social media. App.105; JA.149. Students “can be referred for bias-related behavior” at all times—“[f]rom

admission to commencement.” JA.372.

Examples of bias incidents include “words or actions that contradict the spirit of the Principles of

Community,” “jokes that are demeaning to a particular group of people,” “assuming characteristics of a minority group for advertising,” and “posting flyers that

contain demeaning language or images.” App.101;

JA.333. To avoid a bias incident, the University warns

students to “[b]e aware of words, images, and situations that suggest all or most of a group are the same”;

“[b]e aware of language that has questionable racial,

ethnic, class, or sexual orientation connotations”; and

“[r]eview language, images, and other forms of communication to make sure all groups are fairly represented.” JA.144.

Reporting bias incidents is easy. Students and

third parties can submit complaints through an online

reporting tool (“Bias Incident Reporting Form”),

email, or social media. App.105; JA.355-56 ¶8; JA.14647. Like a crime-reporting hotline, complaints about

biased speech can be made anonymously. App.4. The

intake form asks students to specify the date and location of the alleged incident and to “list all involved

parties.” JA.147-48. Entries include the perpetrator’s

name, role in a student organization (if any), email address, and Virginia Tech student ID number. JA.14748. Complainants can choose from a list of twelve personal characteristics (e.g., race, gender identity, political affiliation) as the alleged source of bias. JA.14849. Complainants then identify where the speech was

made, such as a “Comment in Class or Assignment,”

“Comment in Person,” “Comment in Writing or on Internet,” “Comment via Email/Text,” or “Comment via

Phone/Voicemail.” JA.149.

The University has long encouraged students to

report bias incidents and ensured that BIRT is “publicized and known to all community members.” JA.

372; App.4. For example, the University developed a

“See Something? Say Something!” campaign—borrowing from the Department of Homeland Security’s famous program to stop terrorism. App.4; JA.204; see

generally If You See Something, Say Something, DHS,

perma.cc/USW7-UGQH. The Dean of Students “encourage[s]” students “to make a report” if they “hear

or see something that feels like a bias incident, statement, or expression,” even if they are “unsure.” JA.200

(emphasis added). “In short, if you see something, say

something!” JA.200; accord JA.202, 209, 213. Like law

enforcement, BIRT uses terminology suggesting that

serious wrongdoing has occurred, including “perpetrator,” “victim,” “bystander,” “targeted,” “incident,” and

“accused.” JA.369-70.

Bias reports often involve protected speech. These

reports can be obtained via public-records requests,

and journalists obtained several reports to BIRT from

2018. See Schneider, Virginia Tech on the Hunt for

Campus Penis Artists, The College Fix (May 3, 2019),

perma.cc/JSL9-RT8V. Those reports are in the record.

They show that students at Virginia Tech have been

accused of a bias-related incident for, among other

things,

•

writing “Saudi Arabia” on a whiteboard outside of a student’s dorm room (bias based on

“national or ethnic origin”);

•

describing female students as unathletic (bias

based on “gender”); and

•

telling a joke that included “Caitlyn Jenner’s

deadname” (bias based on “gender identity”).

App.105-06.

Virginia Tech strives to be “proactive and responsive” to bias incidents. JA.368, 372. BIRT usually responds to complaints “within 24 hours.” JA.278. Complaints about bias incidents are directed to the Office

of the Dean of Students. App.101; JA.372. The Dean’s

office will “[r]ecord exactly what was said” and will

“[l]og details of the incident” in a case-management

system. JA.368-69; JA.372; JA.361 ¶17; App.102. To

determine whether “bias” occurred, the Dean’s office

will ask, among other things, whether the expression

was “bias-motivated” or “violate[s] the shared values

and expectations of university community members.”

JA.333. If BIRT “determine[s] [that] bias exists,” it

will engage in an “interventio[n]” with the student

that is “educational or restorative.” JA.372; see

JA.143. If “appropriate,” the incident will be referred

to the “Virginia Tech or Blacksburg Police Department, [the] Threat Assessment Team, [the] Student

Conduct Office, [or the] Title IX Office.” JA.368;

JA.355-56 ¶8; JA.359-60 ¶15; App.102.

C. Speech First sues on behalf of its members

who attend Virginia Tech.

Speech First is a nationwide membership organization of students, alumni, and others that is dedicated to preserving civil rights secured by law, including the freedom of speech. App.84; JA.640. Speech

First has successfully vindicated students’ rights at

the University of Michigan, the University of Texas,

the University of Illinois, Iowa State University, the

University of Central Florida, and the University of

Houston. See Court Battles.

Speech First has members who currently attend

Virginia Tech. App.8 n.3; see CA4.Dkt.67-4 ¶1; CA4.

Dkt.67-5 ¶1. 1 These students’ views are “unpopular,

controversial, and in the minority on campus.” CA4.

Dkt.67-4 ¶4; CA4.Dkt.67-5 ¶4; CA4.Dkt.67-6 ¶6. For

example, one student believes that “biological males

are [not] actually ‘female’ simply because they identify

that way.” CA4.Dkt.67-4 ¶6; accord CA4.Dkt.67-5 ¶6.

Another believes that Black Lives Matter is “destructive and fundamentally racist” and that “people who

cross the border should be referred to as ‘illegal aliens,’ because that is what they are.” CA4.Dkt.67-5 ¶7.

Speech First’s members want to “engage in open and

robust intellectual debate” with their fellow students

and “speak passionately and repeatedly” about their

views in class, online, and in the broader community.

1 In the district court, Speech First provided declarations

from three of its members who self-censor because of the University’s bias-response team. See App.84-86; JA.337-51. After those

students graduated, the Fourth Circuit allowed Speech First to

“supplement the appellate record with affidavits from four additional students … who assert identical injuries and are currently

enrolled at Virginia Tech.” App.8 n.3; see CA4.Dkt.67. The

Fourth Circuit thus “consider[ed] the declarations of [these students] as part of the record on appeal.” App.8 n.3; accord Parents

Involved in Community Schools v. Seattle School Dist. No. 1, 551

U.S. 701, 718-19 (2007). Two of those students are still enrolled

at Virginia Tech, and the youngest will not graduate until 2025.

CA4.Dkt.67-4 ¶1; CA4.Dkt.67-5 ¶1.

CA4.Dkt.67-4 ¶9-10; CA4.Dkt.67-5 ¶9-10; CA4.Dkt.

67-6 ¶7.

But these students censor their speech because of

the University’s bias-incidents policy. CA4.Dkt.67-5

¶11-12; CA4.Dkt.67-5 ¶11-12; CA4.Dkt.67-6 ¶8. They

fear that students, faculty members, or others will report them to university officials for committing a bias

incident. CA4.Dkt.67-4 ¶12; CA4.Dkt.67-5 ¶12. Because the definition of “bias” is so broad and vague,

they know that someone will find their speech to be

biased and report them to BIRT, and they fear the

many repercussions. CA4.Dkt.67-4 ¶12; CA4.Dkt.675 ¶12. For example, they fear that the Dean will keep

a dossier on them, share the allegations with others at

the university, call them in for meetings or “interventions,” or refer the allegations to disciplinary authorities, including the Office of Student Conduct. CA4.

Dkt.67-4 ¶12; CA4.Dkt.67-5 ¶12. As a result, these

students do not fully express their beliefs and avoid

certain topics altogether. CA4.Dkt.67-4 ¶12; CA4.

Dkt.67-5 ¶12; CA4.Dkt.67-6 ¶8.

D. The Fourth Circuit, over Judge Wilkinson’s

dissent, rules for Virginia Tech.

In April 2021, Speech First sued Virginia Tech

and moved for a preliminary injunction, asking the

Court to enjoin the University from enforcing its biasincidents policy. Speech First supported its motion

with a verified complaint, more than two dozen exhibits, and declarations from its executive director and

three student-members. JA.9-351.

The district court declined to enjoin enforcement

of the bias-incidents policy. Speech First lacked standing, the court reasoned, because the policy “do[es] not

proscribe anything” and BIRT “lacks any authority to

discipline or otherwise punish students.” App.107. In

so holding, the court “recogniz[ed] its departure from

the Sixth Circuit’s decision in Speech First v. Schlissel

and the Fifth Circuit’s decision in Speech First v. Fenves,” but it found the Seventh Circuit’s decision in

Speech First v. Killeen more persuasive. App.109, 112

(cleaned up). After the district court issued its opinion,

the Eleventh Circuit held that Speech First had

standing to challenge another bias-response team in

Florida, further deepening the split. Cartwright, 32

F.4th at 1110.

The Fourth Circuit affirmed in a divided opinion,

with Judge Wilkinson in dissent. Like the district

court, the majority found that Speech First lacked

standing because Virginia Tech’s bias-response team

has no “‘authority to discipline or otherwise punish

students’” and so no “objectively reasonable student

would self-censor to avoid encountering it.” App.19,

22. Acknowledging the split, the majority sided with

“the Seventh Circuit and [the dissent in] the Sixth Circuit.” App.23-25. In stark contrast to the Fifth, Sixth,

and Eleventh Circuits, the majority praised the University’s bias-response team as “a way to educate [the]

student body” about “harmful stereotypes,” “discriminatory tropes,” and “‘the role of tolerance in the campus community.’” App.27.

Judge Wilkinson dissented. In his view, BIRT is

not the “sweet, innocent little system the majority envisions.” App.78. It imposes a “regime of comprehensive surveillance,” creating “an oppressive atmosphere of scrutiny from which there is no reprieve.”

App.49-50. The University’s “proffered assurance that

BIRT cannot directly punish students” ignores the

“real-world consequences.” App.39. The “reality” is

that the University “has constructed a complex apparatus for policing and reporting whatever administrators may deem ‘biased speech.’” App.39.

This “intricate program,” Judge Wilkinson observed, has “a straightforward effect: students selfcensor, fearing the consequences of a report to BIRT

and thinking that speech is no longer worth the trouble.” App.39-40. The policy’s “prohibitive effect on

speech” is “evident from its face” and follows “as surely

as the night follows the day.” App.42. The University’s

bias apparatus “causes students to self-censor for fear

of being reported, thus effecting an objective chill on

speech.” App.43. Speech First “of course … has standing.” App.43.

“Making matters worse,” Judge Wilkinson continued, the majority’s decision “splits from three of our

sister circuits.” App.70. No “mere theoretical disagreement,” this “circuit split creates a patchwork of First

Amendment jurisprudence for schools across the

country.” App.73. On “the vitally important issue of

free speech on college campuses,” this “circuit spli[t]”

means that “students in Michigan, Florida, and Texas

[are] protected from unconstitutional policies while

students in Virginia remain exposed.” App.73. Judge

Wilkinson would have “enjoin[ed] this ill-conceived

experiment in its entirety,” thus “allowing the University a new start, one which returns the fresh air of free

speech to its rightful place in campus life.” App.40.

Speech First filed this timely petition. All proceedings in the district court are stayed until this Court

finally resolves the petition. See D.Ct.Dkt.51. A month

after the Fourth Circuit issued its mandate (and days

after the University learned that Speech First was

likely seeking certiorari), counsel for the University

emailed counsel for Speech First, asserting that the

University “has dissolved its Bias Intervention and

Response Team.” Whatever that means in practice,

the University has not argued that such a late-breaking, voluntary change—after the University defended

BIRT’s legality for two years in two courts—could possibly moot the case. Any such argument would be a

blatant attempt to manipulate this Court’s jurisdiction, plainly wrong, and not a reason to deny certiorari

anyway. See, e.g., Friends of the Earth, Inc. v. Laidlaw

Env’t Servs. (TOC), Inc., 528 U.S. 167, 179, 189, 19394 (2000). If the University argues otherwise in its opposition, Speech First will respond in reply.

REASONS FOR GRANTING THE PETITION

The most common reason why this Court grants

certiorari—and the first one listed in its rules—is to

resolve circuit splits on important questions of federal

law. The question here has created an acknowledged

five-circuit split, and the answer could not be more important to the constitutional rights of college students.

This case is an ideal vehicle to resolve the split because Virginia Tech’s team is typical, the material

facts are undisputed, and the legal question is fully

vetted. The Fourth Circuit answered that question incorrectly. As explained by Judge Wilkinson and the

three circuits in the majority, bias-response teams objectively chill the speech of dissenting college students

like Speech First’s members. This Court should grant

certiorari and reverse.

Whether bias-response teams objectively

chill speech is an important question that

has split five circuits.

A circuit split is the most common and obvious

reason for this Court to exercise its discretionary jurisdiction. Shapiro et al., Supreme Court Practice

§4.I.4 (11th ed. 2019). To quote this Court’s Rule 10(a),

certiorari is warranted when two or more circuits

“conflict” on the “same important matter.” The conflict

here runs five circuits deep. And it is vitally important

to the free-speech rights of college students across the

country.

1. The circuits are split, three to two, on whether

bias-response teams objectively chill speech. The

Fifth, Sixth, and Eleventh Circuits are on one side,

while the Fourth and Seventh are on the other.

These five cases are materially indistinguishable,

as the Fourth Circuit acknowledged below. App.23-25.

All involve the same plaintiff (Speech First). All were

decided at the same stage (preliminary injunction).

And all address the same question of Article III standing. Hence why the Fourth Circuit did not distinguish

the other four cases; it said one was right and the

other three were wrong. App.24-25.

This split is widely acknowledged. The Fourth

Circuit “recognize[d]” that it was joining the Seventh

and splitting with the Fifth, Sixth, and Eleventh Circuits. App.23. The dissent was blunter: “[T]oday’s decision splits from three of our sister circuits.” App.70

(Wilkinson, J., dissenting). Even before the Fourth

Circuit deepened the split, courts recognized that the

“circuit courts of appeals are split on whether the implementation of a bias-response team … can support

standing.” Speech First, Inc. v. Cartwright, 2021 WL

3399829, at *4 (M.D. Fla. July 29); accord App.112

(district court recognizing its “departure” from the

Fifth and Sixth Circuits). Commentators on both sides

of the issue recognize the split too. E.g., Ed. Bd., Virginia Tech’s Bias Response Team and the First

Amendment, Wall St. J. (June 11, 2023), perma.cc/

JY86-QJEY (“other circuits have taken the view that

Judge Wilkinson does”); Shultz, Ice Ice, Maybe?: Do

University Bias Incident Report Teams Really Chill

Student Speech, or Are They Just a Conduit?, U. Cinn.

L. Rev. Blog (Oct. 21, 2022) (“circuit split”); Note, University Bias Response Teams: Balancing Student Freedom from Discrimination and First Amendment

Rights Through Student Outreach, 55 Ind. L. Rev.

809, 817 (2022) (“split”); Garces et al., Legal Challenges to Bias Response Teams on College Campuses,

51 Sage Journals 431, 433 (2022) (similar).

And while a 3-2 circuit split is plenty deep, the

conflict is deeper than that. Most of the appellate panels were divided, and five district courts have weighed

in too. All told, twenty federal judges have considered

whether bias-response teams objectively chill speech.

That question split those judges right down the middle: Ten said yes. 2 And ten said no. 3

Resolving questions that divide the lower courts is

perhaps the strongest justification for this Court’s discretionary jurisdiction. Most of this Court’s cases are

granted because the lower courts are split—often far

less deeply and evenly than they’re split here. E.g.,

Axon Enterprise, Inc. v. FTC, 143 S.Ct. 890, 899-900

(2023) (1-1 split); MOAC Mall Holdings LLC v. Transform Holdco LLC, 143 S.Ct. 927, 934 & n.3 (2023) (21 split); Lac du Flambeau Band of Lake Superior

Chippewa Indians v. Coughlin, 143 S.Ct. 1689, 1695

(2023) (2-1 split). For reference, the five circuits that

comprise this split contain about half the country’s

population, including seven of the ten most populous

States.

Review is especially critical when a circuit conflict

implicates core constitutional rights, like the freedom

of speech. E.g., Counterman v. Colorado, 143 S.Ct.

2106, 2113 (2023) (certiorari granted because “[c]ourts

2 Judge Wilkinson (CA4), Judge Jones (CA5), Judge Costa

(CA5), Judge King (CA5), Judge Cook (CA6), Judge McKeague

(CA6), Judge Newsom (CA11), Judge Marcus (CA11), and one

district judge sitting by designation. Judge Brennan (CA7)

largely agreed that bias-response teams chill speech, but he

faulted Speech First for evidentiary issues not present here. See

Killeen, 968 F.3d at 652-53 (Brennan, J., concurring in part and

dissenting in part).

3 Judge Diaz (CA4), Judge Motz (CA4), Judge White (CA6),

Judge St. Eve (CA7), Judge Scudder (CA7), and five district

judges.

are divided” on a First Amendment issue); accord Mahanoy Area Sch. Dist. v. B.L. ex rel. Levy, 141 S.Ct.

2038, 2044 (2021); Manhattan Cmty. Access Corp. v.

Halleck, 139 S.Ct. 1921, 1927 (2019); Lane v. Franks,

573 U.S. 228, 235 (2014). The rights secured by our

foundational charter should not turn on arbitrary distinctions like which federal circuit happens to contain

a student’s college. To quote Judge Wilkinson, this

“circuit split” on “the vitally important issue of free

speech on college campuses” results in “students in

Michigan, Florida, and Texas being protected from

unconstitutional policies while students in Virginia

remain exposed.” App.73 (dissent).

2. If the Fourth Circuit was right below, then biasresponse teams are immune from judicial review—an

“important matter” that merits this Court’s consideration. S.Ct.R.10(a). This Court maintains an “enduring commitment to protecting the speech rights of all

comers, no matter how controversial.” 303 Creative,

143 S.Ct. at 2320. It regularly deems “First Amendment issues” to be “important” enough for certiorari.

Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 540

(2001); Ward v. Rock Against Racism, 491 U.S. 781,

784 (1989). These issues are “‘nowhere more vital’”

than on college campuses. Healy, 408 U.S. at 180. Our

nation’s universities are tasked with training our future leaders. Keyishian, 385 U.S. at 603. They must

remain a free “‘marketplace of ideas,’” else “‘our civilization will stagnate and die.” Id.

If Speech First is right, then bias-response teams

are chilling the speech of millions of college students

nationwide. The number of bias-response teams continues to grow, approximately doubling over the last

five years. Crosshairs 3. Speech First studied 824 universities and found that more than half had a biasreporting system. Id. These policies are just as common at public universities as they are at private universities. Id. No wonder then that, over this same period, students report feeling less free to speak on campus than ever. According to one comprehensive survey, “[m]ore than 80% of students reported self-censoring their viewpoints at their colleges.” College

Pulse et al., College Free Speech Rankings 3 (2021),

perma.cc/8TAA-NZ8H; accord JA.319 (only 20% of

Hokies said they felt comfortable expressing minority

views in class). Even absent a circuit split, this troubling trend would warrant this Court’s review. See

Harris v. Quinn, 573 U.S. 616, 627 (2014) (granting

certiorari because “other States were following Illinois’ lead by enacting laws” that raise “important

First Amendment questions”). 4

The broader implications of the Fourth Circuit’s

decision are also troubling. According to that court,

Speech First doesn’t even have standing to challenge

bias-response teams because they don’t do enough to

chill speech. By that logic, a university could set up a

team that targets any disfavored speech: a Zionism

4 Universities too—if you

gave them truth serum—would

say they need this Court’s guidance on how to address “bias

within the parameters of the First Amendment.” Lee, General

Counsel’s Corner: Bias Response Teams – No Easy Answers, JD

Supra (Feb. 2, 2022), perma.cc/28NY-7L9Y.

Response Team (for speech favorable to Israel), a Patriotism Response Team (for speech critical of the war

on terror), or a MAGA Response Team (for speech supporting President Trump). And if these teams don’t

even implicate the First Amendment, then cities and

States can set them up too. Far from theoretical, Oregon now has a formal process for reporting “bias incidents” to its attorney general. Report a Bias Crime or

Incident, Ore. DOJ, perma.cc/KQ3P-HUNN (captured

Aug. 8, 2023). And New York City has its own “Bias

Response Team.” Responding to Bias, NYC, perma.cc/

WU5A-7FBT (captured Aug. 8, 2023). A decision from

this Court is needed to halt these disturbing trends.

II. This case is an ideal vehicle for reaching

the question presented.

If this Court agrees that it should resolve the split

over bias-response teams, it might never see a better

vehicle. The team at Virginia Tech is representative

of the other problematic teams nationwide. Whether

that team objectively chills speech is a pure question

of law. And no further percolation—either here or in

other circuits—is needed.

1. Despite slight differences, bias-response teams

“work much the same from school to school.” Yockey,

Bias Response on Campus, 48 J.L. & Educ. 1, 3 (2019).

They “follow the same basic structure.” Id. at 5. The

five cases that comprise this split all involve university policies that

•

create a formal entity with “response

team” in its name;

•

staff the team with university officials who

otherwise have disciplinary authority;

•

adopt a formal definition of “bias incident”

that broadly covers protected speech;

•

solicit anonymous reports;

•

log the reports and conduct follow-up;

•

contact students accused of bias incidents

and ask them to attend a “voluntary” meeting; and

•

warn students that the team can refer incidents for formal discipline.

See Fenves, 979 F.3d at 325-26; Schlissel, 939 F.3d at

762; Killeen, 968 F.3d at 632-35; Cartwright, 32 F.4th

at 1115-18; App.4-6 (majority); App.44-51 (Wilkinson,

J., dissenting).

Virginia Tech’s BIRT has all these features. It is a

classic bias-response team that was created in 2019,

when these teams were first starting to proliferate nationwide. The record here also contains a year’s worth

of bias incidents that were actually reported to Virginia Tech—concrete examples that will further aid

this Court’s review.

2. The question presented is purely legal. It’s a

question of Article III standing. And it turns on

whether the University’s policy would chill the speech

of a reasonable college student—an “objective” inquiry. Cartwright, 32 F.4th at 1119-20 & n.2. That

chilling effect comes from the outward-facing materi-

als that students see: the text of the policy, the structure of BIRT, and what the University tells students

about it. Those written materials are in the record.

Further discovery into unwritten policies and practices would serve little purpose. As Judge Wilkinson

recognized below, the existing record “is wholly sufficient to resolve this matter here and now.” App.41

(dissent).

Though the Fourth Circuit wrapped itself in the

district court’s “findings of fact,” App.25, that framing

is largely beside the point. Speech First does not dispute what BIRT says it does. Schlissel, 939 F.3d at

765. It disputes whether, given what BIRT says it

does, a reasonable student would refrain from speaking. Contra the Fourth Circuit, that latter determination is a legal question, not a “factual finding.” App.14.

Speech First, in other words, can prevail without disturbing anything that the district court found about

BIRT’s operations. The Fourth Circuit’s assertion that

the Fifth, Sixth, and Eleventh Circuits did not give

proper “deference” to the district courts is thus wrong

and simply highlights the split. App.24. Those circuits

“sized up an important issue of constitutional law,”

and “their legal analysis strives to protect First

Amendment rights where [the Fourth Circuit’s] stumbles.” App.72-73 (Wilkinson, J., dissenting) (emphases

added). The Fourth Circuit’s conflation of law and fact

is yet another way it erred.

3. This legal question needs no further percolation. Twenty federal judges have addressed whether

bias-response teams objectively chill speech in twelve

separate opinions. Collectively, those opinions cover

all the possible arguments on both sides of the issue.

Though the split might deepen if more teams are challenged in more circuits, those additional decisions will

not meaningfully help this Court. But the delay would

have costs. “Whichever way [this Court] were to decide on the merits, it would be intolerable to leave unanswered” this important “First Amendment” question for years, as entire classes of college students

have their speech chilled by bias-response teams. Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241, 247 n.6

(1974).

Nor could the University resist certiorari because

this case is “interlocutory.” Though Speech First appealed from the denial of a preliminary injunction, all

lower-court proceedings are stayed pending this

Court’s decision. And all five cases in this 3-2 split

were decided at the preliminary-injunction stage too.

This Court often grants certiorari in that posture.

E.g., Fulton v. City of Philadelphia, 141 S.Ct. 1868,

1876 (2021); Chrysafis v. Marks, 141 S.Ct. 2482, 248283 (2021); Ramirez v. Collier, 142 S.Ct. 1264, 1272,

1275 (2022); Whole Woman’s Health v. Jackson, 141

S.Ct. 2494, 2495 (2021). This Court is especially willing to hear cases before final judgment when they involve “the proper scope of First Amendment protections.” Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46,

55 (1989). These “protections should not be placed at

the sufferance of extended rounds of litigation,” as

“[t]he longer its beneficiaries languish in litigation,

the more its value and meaning is lost.” App.41 (Wilkinson, J., dissenting).

III. The Fourth Circuit got it wrong.

This much is common ground: To prove associational standing, Speech First must prove that one of

its members would have standing to sue on her own.

Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S.Ct. 2141, 2157 (2023).

And for a member to have injury, causation, and redressability herself, the University’s policy must objectively chill her speech. App.13; Cartwright, 32

F.4th at 1120; Fenves, 979 F.3d at 333; Killeen, 968

F.3d at 638; Schlissel, 939 F.3d at 764.

This much should be common ground: The government can objectively chill speech without directly prohibiting it. Am. Commc’ns Ass’n, C.I.O. v. Douds, 339

U.S. 382, 402 (1950). A policy can be challenged “even

though it has only an indirect effect on the exercise of

First Amendment rights.” Laird v. Tatum, 408 U.S. 1,

12-13 (1972). The government “may no more silence

unwanted speech by burdening its utterance than by

censoring its content.” Sorrell v. IMS Health Inc., 564

U.S. 552, 566 (2011). Administrative burdens thus can

chill speech. Susan B. Anthony List v. Driehaus, 573

U.S. 149, 165 (2014). So can “concer[n] about the expense of becoming entangled.” Counterman, 143 S.Ct.

at 2115. So can “informal sanctions,” “threat[s],” and

“other means of coercion, persuasion, and intimidation.” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 67

(1963).

This Court applied these principles in Bantam

Books. Because the First Amendment strictly limits

States’ power to ban obscenity, Rhode Island tried to

discourage obscenity through a Commission to Encourage Morality in Youth. Id. at 59. The commission’s mission was to “educate the public” about obscene materials. Id. It would receive “complaints from

outraged parents,” “investigate” incidents, circulate

“lists of objectionable publications,” and “recommend

legislation, prosecution and/or treatment” to address

them. Id. at 60 n.1. If the commission concluded that

a book was “objectionable,” the commission would

send a notice to the publisher and thank it for its “cooperation” in preventing the spread. Id. at 62-63. A

“local police officer” would then follow up with the

publisher. Id. at 63. The commission had no “power to

apply formal legal sanctions,” id. at 66, and publishers

were “‘free’ to ignore the Commission’s notices,” id. at

68. Yet this Court—“look[ing] through forms to the

substance”—held that this threatening, coercive

scheme objectively chilled speech. Id. at 67-68, 72.

The Second Circuit, in an opinion joined by thenJudge Sotomayor, reached a similar conclusion in

Okwedy v. Molinari. The plaintiff there rented billboards in Staten Island denouncing homosexuality.

333 F.3d 339, 341 (2d Cir. 2003). The president of the

borough then wrote a letter to the billboard company,

on official letterhead, stating that the billboards were

“unnecessarily confrontational and offensive” and

“convey[ed] an atmosphere of intolerance.” Id. at 34142. The president asked the company to “contact” the

“Chair of [the] Anti-Bias Task Force” to “establish a

dialogue” and “discuss” these issues. Id. He appealed

to the company “as a responsible member of the business community.” Id. at 342. But the president had no

authority over billboards. Id. at 343. The Second Circuit nevertheless held that his letter crossed the line

“between attempts to convince and attempts to coerce.” Id. at 344. “Even though [the President] lacked

direct regulatory control over billboards,” the company “could reasonably have feared that [he] would

use whatever authority he does have” against it. Id.

And the fact that the letter called for “dialogue” did

not dissipate its “implicit threat.” Id.

Like the commission in Bantam Books and the

task force in Okwedy, bias-response teams objectively

chill speech. Consider a reasonable college student

who is contemplating sharing a controversial view on

campus. If she speaks, anyone on campus can report

what she said as a “bias-related incident.” The university encourages those reports (even anonymously) and

compares bias on campus to bombs at the airport. The

term “bias-related incident” is formally defined, with

the prolixity of a legal code. And reports go to a formal

entity called the Bias Intervention and Response

Team. That team is staffed by officials at the highest

levels of the university, including disciplinarians and

police. As the student can see from the team’s name

and mission statement, these officials will intervene

and respond to her speech with the goal of “eliminat[ing]” bias. JA.369. The team will start by logging

her reported speech in an official database. It will then

investigate her speech: reviewing whether it meets

the definition, talking to the “victim,” and contacting

her (the “perpetrator”) for a meeting. JA.369-70. Even

if she can technically decline, saying no to a university

official is daunting. And she doesn’t know whether her

no will have negative consequences. The bias-response team warns students, after all, that it can refer

students for formal discipline (which, for several team

members, means referring incidents to themselves).

Instead of risking a trip through this wringer, a reasonable student could conclude: “Better to just keep

quiet.” App.46 (Wilkinson, J., dissenting).

The Fourth Circuit ignored the totality of this process, instead slicing and dicing its components and explaining why each component wouldn’t chill speech.

But it was wrong about the components too. Bias-response teams chill speech by creating a formalized

system where students constantly monitor and anonymously report each other to the university. App.4951 (Wilkinson, J., dissenting); Fenves, 979 F.3d at 338.

The reputational damage from being labeled a bias offender is chilling too. Killeen, 968 F.3d at 652 (Brennan, J., concurring/dissenting); Cartwright, 32 F.4th

at 1124; Schlissel, 939 F.3d at 765. As is the knowledge that officials are logging and investigating protected speech. App.53-54 (Wilkinson, J., dissenting);

Cartwright, 32 F.4th at 1124; Killeen, 968 F.3d at 652

(Brennan, J., concurring/dissenting). The prospect of

being personally contacted by a high-ranking university official also chills speech. Schlissel, 939 F.3d at

765; Cartwright, 32 F.4th at 1124 n.5. So does the explicit threat of being referred for formal discipline.

Schlissel, 939 F.3d at 765; Fenves, 979 F.3d at 333.

Even if the student did nothing wrong, his “worry”

that the bias-response team “will err” and his desire

to avoid “becoming entangled” in this bureaucratic

morass could “lead him to swallow [his] words.” Coun-

terman, 143 S.Ct. at 2115-16; accord App.55-60 (Wilkinson, J., dissenting). Hence why students, professors, experts, studies, surveys, and even some universities agree that bias-response teams chill speech on

campus. See App.76 (Wilkinson, J., dissenting); Fenves, 979 F.3d at 338; JA.18-19 ¶¶33-34; JA.242;

JA.280-91; JA.237-272; JA.319; JA.340 ¶19; JA.350

¶18.

It’s no answer to say that bias-response teams

cannot themselves administer formal discipline. Cf.

App.18-19. These teams still chill speech because

their members include officials who do have that authority. App.51-52 (Wilkinson, J., dissenting). They

can also refer students for formal discipline. Schlissel,

939 F.3d at 765; App.51-53 (Wilkinson, J., dissenting);

Fenves, 979 F.3d at 333. And they are designed to appear as though students who commit bias incidents

will face discipline-like consequences. Schlissel, 939

F.3d at 764; App.53-55 (Wilkinson, J., dissenting). The

team’s name, membership, and terminology all convey

that message. Fenves, 979 F.3d at 338. A reasonable

student “could be forgiven for thinking that inquiries

from and dealings with the [team] could have dramatic effects such as currying disfavor with a professor, or impacting future job prospects.” Schlissel, 939

F.3d at 765. The team’s “overall tenor” is that “if your

speech crosses the line, we will come after you.” Cartwright, 32 F.4th at 1124 n.5. Such a threat can violate

the First Amendment “even if it turns out to be empty”

and even if the defendant “‘lacks direct regulatory or

decisionmaking authority.’” Backpage.com, LLC v.

Dart, 807 F.3d 229, 230-31 (7th Cir. 2015) (quoting

Okwedy, 333 F.3d at 344). And, of course, bias-response teams chill speech in other ways besides

threatening discipline.

It’s also no answer to say that, even without biasresponse teams, universities can solicit reports and

meet with students as part of their ordinary studentconduct process. Cf. App.18. It is one thing to investigate and collect reports about conduct that universities have the power to ban. It is another thing to investigate and collect reports about “bias-related incidents”—protected speech that a university could

never ban in a speech code. True, “member[s] of the

university community” can report misconduct even

without a bias-response team. App.18. But why, then,

are universities creating a separate entity, staffing it

with authority figures, formally defining bias incident, using disciplinary lingo, soliciting anonymous

complaints, threatening referrals, and asking to meet

with students? This elaborate regime is designed to

eliminate biased speech by implicitly threatening students with consequences “that they otherwise would

not face.” Schlissel, 939 F.3d at 765.

Finally, Speech First needn’t prove that bias-response teams chill speech just as much as the schemes

in Bantam Books or Okwedy. Cf. App.15-18 & nn.8-10.

For starters, college students are typically “teenagers

and young adults” who are “more likely to be cowed by

subtle coercion than the relatively sophisticated business owners in those cases.” Cartwright, 32 F.4th at

1123. More fundamentally, bias-response teams can

be over the constitutional line even if other chilling

schemes are more over the constitutional line. Bias-

response teams are further over the line than other

chilling conduct. E.g., Levin v. Harleston, 966 F.2d 85,

88 (2d Cir. 1992) (university chilled professor’s speech

by creating an “alternative” section of his class that

students could take instead); Rutan v. Republican

Party of Ill., 497 U.S. 62, 76 n.8 (1990) (public employer can chill employee’s speech by “‘failing to hold

a birthday party’”). At the end of the day, the question

is “whether the average college-aged student would be

intimidated—and thereby chilled from exercising her

free-speech rights—by subjection to the bias-relatedincidents policy and [BIRT’s] role in enforcing it.”

Cartwright, 32 F.4th at 1124. “The answer to that

question,” as three out of five circuits have correctly

held, “is yes.” Id.

CONCLUSION

This Court should grant certiorari.