In Speech First, Inc. v. Sands, the Court vacated the Fourth Circuit's decision upholding Virginia Tech's Bias Intervention and Response Team Policy, on the grounds that the case had become moot. Justice Jackson would have denied the petition because of her views about when lower court decisions should be vacated based on mootness. But Justice Thomas, joined by Justice Alito, would have agreed to hear the case on the merits; here is his reasoning:
Speech First, a national membership organization seeking to protect free speech on college campuses, brought suit against Virginia Tech to enjoin the university's "bias intervention and response team policy." Under that policy, Virginia 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 characteristics. Students are instructed to "[r]eview" their "language, images, and other forms of communication to make sure all groups are fairly represented." A "bias intervention and response team" made up of university officials then investigates 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." It contends 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. It acknowledged that this conclusion diverged from that of three other Courts of Appeals.
Speech First asks us to review whether Virginia Tech's bias response policy objectively chills students' speech. 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. Yet, because of the split among 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 Virginia Tech's, objectively chill students' speech.
