Litigation Update: Speech First, Inc. v. Sands

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Chayila Kleist:  Hello, and welcome to this FedSoc Forum webinar call.  Today, March 7, 2024, we're delighted to host a litigation update discussion on Speech First v. Sands.  My name is Chayila Kleist, and I'm an Assistant Director of Practice Groups here at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today's program, as The Federalist Society takes no position on particular legal or public policy issues.  

 

      Now, in the interest of time, I will keep my introduction of our guests today quite brief. But if you'd like to know more about either of our speakers, you can access their impressive full bios at FedSoc.org.  Today, we're fortunate to have with us Abigail Smith, who is an amicus attorney at the Foundation for Individual Rights and Expression, FIRE.  Miss Smith joined FIRE after her tenure at the Becket Fund for Religious Liberty where she litigated First Amendment student group cases from coast to coast.

 

      She also has worked at a trial litigation boutique in Southern California. Miss Smith has filed briefs on the First Amendment in state and federal court at the trial and appellate court levels, including before the Supreme Court.  She is admitted to practice in New York and California, as well as several federal appellate courts and the U.S. Supreme Court.

 

      Also joining us today, as our moderator for today's discussion, is Tyson Langhofer who serves as senior counsel and director of the Center for Academic Freedom with Alliance Defending Freedom. Before joining ADF, Mr. Langhofer was a partner with Stinson LLP, where he worked as a commercial litigation attorney from 2000 until he joined ADF in 2015. 

 

He regularly comments on free speech issues in television, radio, and print media, and has appeared as a guest and written pieces for numerous major media outlets, including the Washington Post, the Washington Times, USA Today, Town Hall, Federalist, and Daily Wire. Mr. Langhofer is admitted to practice in multiple states, the Supreme Court, and before numerous federal, district, and appellate courts.  And I will leave it there.

 

One last note: throughout the panel, if you have any questions, please submit them via the Q&A feature found at the bottom of your Zoom screen so it will be accessible when we get to that portion of today's webinar.  With that, thank you all for joining today. Mr. Langhofer, the floor is yours.

 

Tyson Langhofer:  Thank you so much, Chayila. And thanks, everybody, for joining us for this really important and interesting discussion on an important case that really has impacts nationwide. And I'm really appreciative of Abby joining me today because she's with FIRE. And at ADF we've joined a lot of the cases that are going to be at issue here, and fighting against the same thing.  So, I'm going to give a brief overview of the case, and then we'll jump into questions from Abby.

 

      So, the case is Speech v. Sands. And it involves a challenge by Speech First — which is a campus rights, speech rights organization — and its challenge to a bias response team policy and program that's at Virginia Tech University. And so, they filed a challenge to this on behalf of Speech First in the Western District of Virginia. It then went up to the Fourth Circuit and then, recently, to the Supreme Court. And we'll kind of talk about those procedural developments here, as we go along.

 

      But, since these bias response teams are relatively new, and they may not have been around when all of us went to college, Abby, why don't you tell us a little bit about — before we get into the facts of the case — what is a bias response team? And what are the hallmarks of some of these things that are going on across the country?

 

Abigail Smith:  Sure. So, first, I'll give a formal definition of what a bias response team is. And then I'll explain what that actually means in the real world. So, people define them differently. But at FIRE, we define a bias response team on a university or college campus as any system identified as such or that provides: 1) a formal or explicit process for 2) reports from students, faculty, staff, or any community member at the university, 3) that concerns offensive conduct or speech that is or would be protected by the First Amendment.

 

      So, again, that's kind of very legalese. But what it looks like on the ground is many colleges and universities that have these bias response teams, they will have a group, the team, made up of, often, a number of university administrators, such as the dean of students. They may involve university police members.  They may involve students or other professors. And they will actively encourage other students, faculty, people on campus, to make reports to the bias response team any time they think they see someone doing something offensive. 

 

      Oftentimes, those reports can be completely anonymous, so whoever is accused of doing something offensive has no right to face their accuser. When you are reported to the bias response team for doing something that may be offensive, that someone thought was offensive, you are usually called into a so-called voluntary hearing with the bias response team or a member of the bias response team. And they say, "Well, you don't have to come to this hearing. But just so you know, we will probably meet anyway." And you could be subject to serious disciplinary sanctions, up to and including suspension.

 

      And the worst part is that the definition of what can be reported as being offensive is incredibly broad and captures a lot, in fact, I would say that most of the activity captured by biased response reporting systems are protected by the First Amendment. So, it can cover things that may not be protected by the First Amendment, such as you can report sexual assault. But you can also report someone for crude jokes, throwing a Cinco de Mayo party, because that is culturally offensive, having an Israel or Palestine flag on your dorm room door. It covers such a broad range of expression that is absolutely protected by the First Amendment, and it chills student speech. 

 

Tyson Langhofer:  So, essentially, a bias response team is designed to encourage students to report potential concerns that they have with other students' conduct, which also could include speech. And it doesn't necessarily just target unprotected speech.  Is that, essentially, right?

 

Abigail Smith:  Absolutely. And you say the target's conduct, which can bring in speech. Every university's policy differs in the details. Many of them expressly target speech itself. So, obviously, any public college or university that has one of these bias response teams and these policies where they're encouraging students, professors, other community members to report, they're basically encouraging people to report their peers on campus for activity speech that's protected by the First Amendment. And it leads to a lot of self-censorship, which is obviously a rising problem nationwide on campuses.

 

Tyson Langhofer:  So, are these policies limited in the context of where the speech occurs?  Like, does it cover speech in class? Is it limited to on-campus speech, social media, that kind of stuff?

 

Abigail Smith:  It really depends. But, for the most part, they're incredibly broad. They've been used to target professors for teaching things in the classroom. One professor was called in under a report to his school's bias response team and told that he should not teach anymore about transgender rights in the classroom because a transgender student in the classroom was offended.

 

      It can also target social media posts. We know of a case where there was an anonymous Instagram post that made a build the wall parody about the university. And the university investigated who had posted that. It's things you say in your dorm room. It can be off campus. It's really anywhere, as long as that person is a student of the university, or a staff member or professor there.

 

Tyson Langhofer:  So, how common are bias response teams on college campuses throughout the country?

 

Abigail Smith:  It's hard to put an exact number on it because different organizations define a bias response team differently. But we do know that they're very common. And they're becoming much more common. So, FIRE did a survey on bias response teams in 2017, which was kind of when we saw the first initial waves of university administrations adopting these bias response systems. And, at that time, in 2017, we found that there were 231 colleges and universities in the U.S. that had them, which covers about 3 million enrolled students.

 

      Since then, in 2022, Speech First did their own follow-up survey. It's not exactly apples-to-apples, because the definition of bias response team was slightly different from FIRE's. But, at that time, they found that, in only five years, the number of colleges and universities with bias response teams had more than doubled to over 450. So, it's a big problem. It's getting worse. And it's covering millions of students with these self-censoring policies.

 

Tyson Langhofer:  Yeah. It's interesting that, as we'll talk about, Speech First has challenged these, at a number of universities across the country, over a number of years. And yet, even though many of those challenges have been successful, as we'll talk about, actually, the number of bias response teams is growing, not diminishing. So that is a concern. So, let's talk about the plaintiff here. Who is Speech First? What's their mission?

 

Abigail Smith:  So, you mentioned this in your intro. But Speech First is a membership organization. Their organization is comprised of members who are current students at colleges and universities, alumni, and other people who are generally supportive of free speech. And their mission is to kind of go after colleges and universities that are restricting freedom of speech on campus in ways that violate the First Amendment. A big part of Speech First's legal strategy thus far has been suing public universities over their bias response teams. And that is what's at issue in this lawsuit against Virginia tech.

 

Tyson Langhofer:  As you just mentioned, they have mounted a number of challenges. And I think it's important to kind of lay out the landscape of the litigation prior to this Virginia tech case, the Speech First v. Sands case we're going to be talking about. Because that kind of sets the stage for this, the eventual case in the Supreme Court. So, tell me about the challenges and, in general, summarize the challenges that Speech First has made against bias response teams at other universities, and the outcome of each one of those challenges.

 

Abigail Smith:  Thus far, over the last, about, five years, Speech First has challenged bias response teams at, I believe, six different universities. They've challenged them at the University of Texas, the University of Illinois, University of Michigan, University of Central Florida, Oklahoma State University, and here, Virginia Tech. And their results have been fairly split. They've had a lot of success. But they've had a couple of losses as well.

 

      In their lawsuits against the University of Texas, which is in the Fifth Circuit, University of Michigan, Sixth Circuit, and University of Central Florida, Eleventh Circuit, they won. Essentially, in all of those cases, they filed preliminary injunction. And the circuit courts of appeal held that they had -- the way these lawsuits turn out, the schools often challenge them based on standing. And they say, "You have no standing, as a membership organization, to sue because, actually, what we're doing does not chill speech."

 

      So, it's a standing argument. But it's actually a First Amendment argument kind of masquerading as a standing argument. So, the Fifth, Sixth, and Eleventh Circuits all held that the bias response team policy at those schools did objectively chill speech of students and faculty on campus and would lead an objectively reasonable student or faculty member to self-censor, which violates the First Amendment. Therefore, they had standing to sue. And Speech First won in those three lawsuits.

 

      And their lawsuit against Oklahoma State, it's actually still ongoing, so, to be determined. Initially, the district court in Oklahoma did dismiss the case — or, I believe, reject the preliminary injunction — because he did not believe there was a First Amendment violation and there was no standing. I'm sorry. That was because of an issue with anonymous members. But the Tenth Circuit reinstated the lawsuit. So, the Oklahoma State lawsuit, it's kind of to be determined what's going to happen there.

 

      And then, in Speech First v. Killeen, which was this lawsuit against the University of Illinois, the Seventh Circuit held that Speech First did not have standing to sue. So, they held that, in their view, biased response teams did not chill speech, objectively. And so, therefore, they believed that Speech First had no standing. And then, in this case, which we'll talk about more in a minute, the Fourth Circuit essentially adopted the Seventh Circuit's reasoning in Speech First v. Killeen. 

 

Tyson Langhofer:  Okay.

 

Abigail Smith:  So, it's about 3-2 and one pending.

 

Tyson Langhofer:  Okay, so Fifth, Sixth, and Eleventh have all held that the response teams did chill speech objectively and that they had standing to challenge that and in the Seventh and, as we'll talk about, in the Fourth, held that speech was not chilled and, therefore, no standing. Now, I think it's true that each one of the requests for injunctions in every one of the district courts, those were denied in every district court.  Do you recall? Am I correct in that? Do you remember?

 

Abigail Smith:  I believe that is correct. But, given that there were six of them, I can't affirm for sure off the top of my head.

 

Tyson Langhofer:  Sure. Okay. All right, so that gives us a good framework for understanding the state of the law, when it came to the challenge at Virginia Tech. So now let's talk about the specific facts of the case. Tell me about Virginia Tech's bias response team policy and what Speech First is. What's the challenge that they're bringing in this case?

 

Abigail Smith:  Sure. So, as university bias response systems go, I would say Virginia Tech's is definitely on the more extreme, strict side. And that's kind of in part due to the history. I believe that Virginia Tech first started implementing policies to deal with bias response in the wake of the Virginia Tech shooting in 2007. So, there's an understandable desire to try and prevent those kinds of things from happening. But, oftentimes, that can lead to an overreaction or, at least, I would say, going too far beyond the bounds that the First Amendment will permit.

 

      So, the specific policy here, with Virginia Tech's bias response team, it deliberately targeted speech as speech. So, its campaign slogan for the bias response team on campus was "See something, say something." They took it from the Department of Homeland Security. They defined a reportable bias incident as any expression — but most expressions are speech — against a wide variety of groups, based on a wide variety of characteristics like race, gender, sexual orientation, political affiliation, or disability.

 

One of the things that was perhaps so jarring about the Virginia Tech policy was that it gave specific examples of what types of incidents would qualify as a reportable bias incident. And that includes things such as jokes that are demeaning, a fraternity holding a date auction or a slave auction, posting a culturally themed party, like a Cinco de Mayo party, or posting flyers with demeaning language or images. All of those things are protected by the First Amendment at a public university like Virginia Tech. And that was the basis of Speech First's lawsuit.

 

Tyson Langhofer:  And those examples you cite, those were actually written examples in the policy, in order to --

 

Abigail Smith:  Yes, exactly. Those were written examples. And those are not hypotheticals raised by Speech First in the litigation. Those are in Virginia Tech's policy. If you make a demeaning joke or if you host a culturally themed party, you can and should be reported for a bias incident which will then result in a referral to the bias response team.

 

Tyson Langhofer:  Yeah. So, in other words, these students, when they're reading about it, they would go, they see that and say, "Oh, yeah. I heard that that fraternity was doing something. They want me to report that." It's not like I’m just subjectively thinking that that type of thing would be covered by it. Because they've actually said it is covered by it.

 

Abigail Smith:  Exactly. And, like I said, they were actively soliciting students to make these kinds of reports with their "See something, say something," awareness campaign.

 

Tyson Langhofer:  Okay, so what happens? Do you have any more discussion about the procedure of that, after somebody makes a complaint? After a student makes a complaint, what happens after that?

 

Abigail Smith:  So, often, when a student makes a complaint, they will receive a letter from the bias response team asking them to come to a voluntary hearing. I believe the bias response team at Virginia Tech included the dean of students, who has the ability to kick you out of student housing. It included members of the university police force. So, you're going before a hearing with police members and several other community members at the university.

 

      Now, while, technically, you do not have to attend the hearing, it's obviously the cloud hanging over you. And they do inform you that you could be subject to sanctions.  So, while the bias response team, itself, cannot formally issue a sanction, the bias response team, for example, cannot give you a suspension or force you to attend cultural awareness training. They can make referrals to other parts of the university, including to the police department, that you received sanctions. 

 

So, even though the bias response team can't directly punish you, it's all the most important decision-makers in the room telling other parts of the university that they should sanction you. So, even though you don't have to go to that hearing, obviously, a student who gets one of these letters is going to be pretty terrified about what happens if they don't go.

 

Tyson Langhofer:  So, in the complaint itself, Speech First, did it allege that any of its members at Virginia Tech had been punished by the bias response team? And if not, what were the allegations that they were saying? What was the harm they were alleging?

 

Abigail Smith:   So, this was a big part of the discussion in the district court and the Fourth Circuit, which both ruled against Speech First. Speech First did not allege that any of their members had already been targeted by the bias response team and had been punished. Rather, they had student members who said that they would like to say things that would probably fall under the bias reporting incident policy.

 

But they were too afraid to say things that they wanted to say, that they're completely within their First Amendment right to say on campus. Because they were afraid that it would offend other people, that those people would report them, and that they would then be called in by the bias response team. So, they basically alleged that they were self-censoring because of the existence of the bias response team.

     

Tyson Langhofer:  Okay, so there was no actual application of the bias response team to any of the members, the students at Virginia Tech. But they did specifically allege that the students at Virginia Tech, which are members of Speech First, wanted to engage in certain discussions that they believe, based upon the definition of a bias incident by the university, could subject them to being reported. And, therefore, they've declined to engage in that type of speech. Is that accurate?

 

Abigail Smith:  That's correct.

 

Tyson Langhofer:  Okay. So, before we get into the district court's ruling, I know that this is going to be a big discussion about the district court. I know FIRE has done extensive research on bias response teams across the country. Can you give me some examples of how those bias response teams are applied, and explain why you think, why FIRE believes, that they are actually chilling speech? Because that's a lot of the discussion that goes on at the district court.

 

Abigail Smith:  Absolutely. So, at FIRE, we believe they're chilling speech because we have several examples where they did, literally, punish speech and chill speech, not that are the subject of these particular lawsuits, but, for example, I referenced this earlier, but, at the University of North Colorado in 2016, a professor was reported to his school bias response team for discussing transgender rights in the classroom. He was called in by the bias response team. And another faculty member told that professor, "Do not talk about controversial subjects, including transgender rights, during class, at all, for the rest of the semester," because they were afraid that the offended students would file a Title VII or a Title IX lawsuit. 

 

So, they told the professor, expressly, who had been reported to the bias response team, "Do not talk about this, even in your own classroom, because we don't want to get sued." Similarly, at the University of New Mexico, in 2013, there was a big public debate at the student senate over whether to ban Chick-fil-A from campus because of positions taken by Chick-fil-A's founders. And during the debate, the president of University of New Mexico Republicans stood up and criticized another student and her organization for wanting to kick Chick-fil-A off.  We have the bias response team logs.

 

I believe we FOIA'd them several years ago. That student filed a bias response report to the school, solely on the basis that, at a public debate, a republican student complained that a democratic student wanted to ban Chick-fil-A. Similarly, at Colby college — again, we have the bias response logs, and we've got the paperwork — a student was reported for claiming that a different student organization was racist against white people. And another student was reported for being ableist because he used the phrase "on the other hand."

 

This is the kind of innocuous, unintentional statements that are being used to call people into bias response teams. And then, one last one that I, again, referenced earlier. At Wake Forest University, in 2019, an anonymous Instagram account posted a meme saying -- there's another University in the same town called Winston Salem State University. And they posted a meme that they were -- it's 2019, President Trump was president at the time. They said that they would build a wall between Wake Forest and Winston Salem State University. 

 

And then, one of the deans of Wake Forest University publicly announced that they were going to launch an investigation under their bias response policies to find out who posted this meme. So, all of these statements are clearly protected by the First Amendment when they're at public colleges and universities. And some of them, like "on the other hand" aren't even remotely offensive. So, when you, as a student, know that you can be reported for something as benign as "on the other hand," speech on campus is going to be chilled. Because you know there's always someone listening. And you never know what's going to bother a university administrator.

 

Tyson Langhofer:  Yeah. And, actually, one of the facts I think that were alleged in this case, reported to Virginia Tech, was that somebody had seen the words, "Saudi Arabia" on a board in a dormitory. There was no comment about it. But that was reported as well, right?

 

Abigail Smith:  Yes.

 

Tyson Langhofer:  And investigated as a bias incident, when it could have been a discussion about Saudi Arabia, just in general. It wasn't necessarily targeted towards anybody. And so, yeah, it does demonstrate the breadth of the types of complaints that students believe are covered by this, and then, in fact, the university then has an obligation to investigate.

 

Okay, well, that gives us a good framework for understanding the basis of the challenge. And so, what happened at the district court?  Speech First, they filed a complaint. And did they also move for preliminary relief? And, if so, what did the district court rule?

 

Abigail Smith:  Yes. So, in this case, Speech First, following a kind of similar plan of attack that it did in the other lawsuits, it filed its complaint against Virginia Tech and then sought a preliminary injunction. The district court denied the preliminary injunction. It held that Speech first lacked standing because, while Virginia Tech's bias response team can recommend students for sanction or discipline by referring out to other university departments, the bias response team itself lacked authority to individually issue discipline or otherwise punish students.

 

And so, the district court held that because it was merely a referral power and not a direct punishment power, that there was no First Amendment violation from the bias response team itself and, therefore, that Speech First lacks standing. And, in doing so, it acknowledged that the Fifth and Sixth Circuits, at the time -- because the Eleventh Circuit hadn't ruled yet, it acknowledged that the Fifth and Sixth Circuits had ruled completely the other way, but said that it found the Seventh Circuit's ruling and reasoning in Killeen more persuasive, and so denied the preliminary injunction.

 

Tyson Langhofer:  Okay. So, explain to me, did the district court address the issue of organizational standing that Speech First can file on behalf of its individual members? Did it address that? And is that standing that Speech First has? 

 

Abigail Smith:  So, I believe that, in this case in particular -- so, that's an issue that's come up, in particular, in the Oklahoma Tenth Circuit case. But I believe, here — I don't recall exactly with the district court — but I do recall that the Fourth Circuit held that if there was a violation then there would be standing. So, there was not an issue with the anonymous member organizational standing in this case, like there was in Oklahoma in the Tenth Circuit case.

 

Tyson Langhofer:  Okay. And I know that's come up in some of the other Speech First cases, and they've addressed it. And I do believe that that's correct that here, in the Fourth Circuit, that Speech First had organizational standing. So, they could bring a First Amendment claim on behalf of its members. The question is, did the allegations themselves, did they arise to grant standing for that alleged violation? And the district court, you said, indicated that they did not have standing because the allegations of chill were not sufficient to show an injury, in fact. Is that right?

 

Abigail Smith:  That's correct. Thank you for making that clear. That's kind of what I alluded to at the beginning. All of these cases are presented as standing cases. But it's really a First Amendment case wrapped in a standing case. Because the only way to have injury, in fact, is if the policies alleged are actually chilling.

 

Because, in all of these cases, I believe there is no member of Speech First that had actually been punished by Speech First. Rather, they were all self-censoring because they were afraid of being punished. So, therefore, if the policies don't objectively chill speech and violate the First Amendment, there is no injury in fact. And, thus, there is no standing.

 

Tyson Langhofer:  Which is why you can see these denials of preliminary injunction appealed directly to the circuit court. Because it really presents the substantive issue to the circuit court: is this policy, on its face, a violation of the First Amendment because the policy itself chills speech?  Is that accurate?

 

Abigail Smith:  Exactly. There's no need for factual development on these cases because they're all facial challenges. So, it does allow them to go up the appeal chain fairly quickly.

 

Tyson Langhofer:  Okay. So, the district court looks at this, denies the preliminary injunction, says there is no injury in fact. And what happened next?

 

Abigail Smith:  Speech First appealed to the Fourth Circuit and the Fourth Circuit completely agreed with the district court with a dissent from Judge Wilkinson. So, the Fourth Circuit agreed that Speech First had no standing because there was no injury, in fact, because Virginia Tech's bias response team did not have direct authority to discipline or otherwise punish the students. So, therefore, in the Fourth Circuit's view, no reasonable student would self-censor for fear of being reported to the bias response team. 

 

Unfortunately, the Fourth Circuit went even further and actually praised Virginia Tech's bias response team as a "model way to educate the student body about harmful stereotypes, discriminatory tropes, and the role of tolerance in the campus community." That holding completely ignores the fact that the expression of such stereotypes and tropes are almost always protected by the First Amendment.

 

Tyson Langhofer:  Okay, so the Fourth Circuit affirmed the district court and held that there was no standing. But you said there was a dissent.  Talk about the different positions. Where is the real conflict between the majority's position and the dissent, on the issue of standing?

 

Abigail Smith:  So, Judge Wilkinson wrote the dissent. And he essentially adopted the reasoning of the Fifth, Sixth, and Eleventh Circuits in those Speech First cases. He said, "It's clear on its face that this would lead to self-censorship." He did not have an issue with the fact that the bias response team technically couldn't punish itself, but it could only refer them out to punishment. Because, in his view, it's not just the punishment that is the problem. It's that they are, what he called, "a regime of comprehensive surveillance at Virginia Tech that resulted in a complex apparatus for policing and reporting whatever the administrators may deem biased speech."

 

      So, it's not just the punishment power that is violating the First Amendment here and chilling speech. It's the fact that you know there's always someone watching. "See something, say something," right? He believed that the chilling effect of the bias response team was evident on its face and would clearly cause reasonable students with unpopular opinions to self-censor.

 

Tyson Langhofer:  So, you talked about this would chill a reasonable student or cause them not to speak. Can you talk about it? Because it is different. Typically, when you're talking about a First Amendment violation, you're talking about a government official or a government policy who says to a specific individual, "You can't speak.  You can't say that" or "You don't have a permit. I'm going to deny this permit to speak." And that's a more clear violation.

 

But the First Amendment also addresses, and the Supreme Court has addressed, this policy which doesn't necessarily, didn't deny a permit, didn't say you can't speak on that, and didn't specifically punish any speech, but causes people, on their own, to not speak. So, what's the standard for chilling speech, in general?

 

Abigail Smith:  One of the best Supreme Court cases on this, that describes it, is called Laird v. Tatum. And that case held that, like you say, the obvious First Amendment violation is when someone says, "No, you can't speak." But, there, it said that even where there's no direct prohibition against the First Amendment right, so there's no obvious ban on speaking, the government can still violate the First Amendment if they have a system of regulations or policies such as aggressive data-gathering or monitoring or surveillance that ultimately would deter, or the term they use, which we've used throughout today, if they objectively kill speech. 

 

So, if someone is not technically being banned from saying something, but if the government has imposed such a restrictive regime of data-gathering or surveillance or reporting — they use an objective standard — any objectively reasonable person would be chilled, would self-censor themselves for fear of being targeted, should they express speech that is protected by the First Amendment.

 

Tyson Langhofer:  So, here, Speech First did allege that its students were declining to speak because they were afraid that they'd be punished. Is that right?

 

Abigail Smith:  That's right. But the Fourth Circuit was not convinced whether -- the Fourth Circuit said that no reasonable student should be self-censoring, even though, I guess, the implied message is that the students were unreasonable for self-censoring. Because even though they could be referred to the bias response team for a hearing, they could always just refuse to go. And it's not like the bias response team itself can sanction the student. They will merely tell someone else at the university to sanction the student. So, the Fourth Circuit just didn't think the concerns were reasonable.

 

But I think Judge Wilkinson very artfully outlined how a teenager or early 20s college student, where, if you get expelled, that is the end, it's very hard to go to another university after that happens, kind of explaining the pressure and the chilling effect of the mere existence of this, especially given how easy it is to report such a broad range of speech to the bias response team at Virginia Tech.

 

Tyson Langhofer:  So, both the majority and the dissent essentially recognized that a policy can be unconstitutional and can be facially challenged if it chills speech. It's just that what they disagree on is whether this policy itself is so overbroad that a reasonable student would, in fact, be deterred from actually engaging in speech. Is that fair?

 

Abigail Smith:  That's correct.

 

Tyson Langhofer:  Okay. So, we have a split 2-1 decision in the Fourth Circuit. After the Fourth Circuit's ruling, Virginia Tech actually did something which you and I have seen a lot at ADF and FIRE, both. They eliminated its bias response team. So, this is kind of surprising, right? They won at the district court. They won at the Fourth Circuit.

 

And yet, they eliminate their bias response team before Speech First could appeal to the Supreme Court. So that really kind of set the stage at the Supreme Court. And, in fact, providentially, the Court just ruled on a Speech First petition on Monday of this week.  So, when it went to the Supreme Court where, at that time, Virginia Tech had won, but they had done away with their bias response team. So, what happened after this Speech First request and did the Supreme Court rule on their petition for cert?

 

Abigail Smith:  So, on the eve of Speech First's cert petition being filed, Virginia Tech revoked all of their bias response team policies. And, thus, when Speech First filed their petition for certiorari when Virginia Tech filed its response, the vast majority of their brief was saying nothing about the merits of the First Amendment challenge, but rather saying "Supreme Court, this case is moot, and you should moot this case because the policies don't exist anymore." Unfortunately, the Supreme Court agreed to do that.

 

So, like you say, on Monday, the Court — it's kind of procedurally interesting, but the result is the same — the Court did grant certiorari of the case and then they used that to vacate the ruling of the Fourth Circuit. So, the Fourth Circuit's ruling is gone. And they remanded the case to the Fourth Circuit, instructing the court to dismiss all of Speech First's claim against the bias response team as moot under a case called United States v. Munsingwear.

 

Tyson Langhofer:  Okay, interesting. All right.  So, where it currently stands, as of now, there is a 3-1 split, right? You've got the Fifth, Sixth, and Eleventh ruling against it. And then you've got the Seventh ruling that bias response teams don't. But now that the Fourth Circuit opinion -- that, on the merits, is vacated. So, is it just now a 3-1 split, kind of?

 

Abigail Smith:  Yes, kind of. 

 

Tyson Langhofer:  Okay.

 

Abigail Smith:  It's an unusual procedural posture, that's for sure.

 

Tyson Langhofer:  Okay, so you mentioned Munsingwear.  What is that case, and why is it important here?

 

Abigail Smith:  United States v. Munsingwear is a Supreme Court from the 1950s. It basically held that when you have an appellate court ruling and you're appealing it to the Supreme Court, but in the process the case is mooted -- so, in that case, there was a challenge. The United States was going after someone for a regulated commodity. And appeals take many years. The regulation that regulated that commodity disappeared.

 

So, the Court ruled that when a case is mooted when there's already an appellate ruling against it, but it's mooted on its way to the Supreme Court, that the Court should not grant and hear the case, but rather they should grant certiorari and vacate the judgment below, then order the case to be dismissed. So, that way, there's no precedential judgment against the appealing party below.

 

So, if a problem arises in the future and they want to file a new lawsuit, there is no res judicata issue. So that's why, here, you vacate the Fourth Circuit ruling. So that way there's no res judicata problems, even though they can't appeal to the Supreme Court now.

 

Tyson Langhofer:  So, technically, if Speech First wanted to file a case against a university in the Fourth Circuit it's kind of appealing in a universe in which this opinion doesn't exist, basically. 

 

Abigail Smith:  That is technically true. However, I think you and I have both seen that whenever something like this happens, the Fourth Circuit will just say, "Well, while this case was vacated, it was not on the merits. So, we're going to adopt the holding there." So, I think it's very likely, if another Fourth Circuit case is filed against a bias response team — unless Judge Wilkinson is in charge and has two friends on the panel — the court will likely readopt its ruling here.

 

Tyson Langhofer:  Okay. So, the Supreme Court grants cert, reverses and vacates it as moot and sends it back down. Was there any dissent from the denial?

 

Abigail Smith:  Yes. There were three justices that dissented. So, first was merely a one-liner from Justice Jackson.  She would have just denied the petition.  She would have left the Fourth Circuit's ruling intact. Justice Thomas, joined by Justice Alito, would have granted the petition, and they would have heard the case to address whether bias response teams are constitutional. So they did not think that the case was moot because of the doctrine of voluntary cessation, which I know we're going to talk about in a minute.

 

As to the merits, they said they had "serious concerns that bias response policies such as Virginia Tech's objectively chill student speech." They said they were skeptical of the Fourth Circuit's ruling. They talked a lot about the breadth and scope and enforcement of the bias response policies at Virginia Tech and how concerning they were, specifically, the incredibly low bar to report an alleged bias incident, and the hefty consequences. So, they would have heard the case on the merits. 

 

Tyson Langhofer:  So, it sounds like they essentially kind of adopted Judge Wilkinson's views and sided with the fact that they believe that this policy does, in fact, would cause a reasonable student to not speak, for fear of being reported. 

 

Abigail Smith:  That's correct. 

 

Tyson Langhofer:  Okay. So, talk about voluntary cessation. That's something, also, that ADF and FIRE are very familiar with. And you can litigate a case for many years and then be faced with a very different set of facts, once you get up, maybe, to the Supreme Court or the court of appeals. So, tell me about the voluntary cessation doctrine and how that comes to play in this case, and then, maybe, many other university cases.

 

Abigail Smith:  So, the voluntary cessation doctrine basically says that when the government decides, especially during the course of litigation, when the government decides that whatever regulation or law they have that's being challenged, they're just going to, especially if it's a regulation, they just decide to revoke it in the middle of the lawsuit. But they could bring it back at any time. That, in such cases, the lawsuit is not mooted. Because as you and I have seen several times, especially suing universities, oftentimes a university will keep a policy in place until they think they're going to lose. 

 

And then they will suddenly revoke the policy and say, "Okay, this is moot. The case should be dismissed." The problem is there's nothing stopping them from putting that policy back in place, even six months later, if they're being disingenuous. Or even where they truly want to get rid of a policy, university administrations change all the time. So, we've seen, a decade later, a university will bring something back that a prior administration agreed to get rid of for violating the First Amendment.

 

And so, without the doctrine of voluntary cessation, it's incredibly easy for governments, especially colleges and universities, to moot out cases when they think they're going to lose, and then just bring those policies back when they think everyone has forgotten about it.  And then you have to go through the hassle of having a whole new lawsuit. So, this came up in other Speech First challenges. 

 

This came up in a Fifth Circuit case, Speech First v. Fenvez. I believe it also came up against Michigan, Speech First v. Schlissel. And both the Fifth and Sixth Circuits there said "No, under the doctrine of voluntary cessation, just because you revoked this bias response team policy doesn't not mean the case is moot." So, it was a bit disappointing to see the Supreme Court here adopt that reasoning.

 

Tyson Langhofer:  And this is a really interesting case. And it shows kind of the difficulties with litigating this. Because in the Fifth and Sixth, those universities had lost. And they lost and they were taking away the policy prior to the ruling. Whereas, here, they won at Fourth Circuit. And then they did away with the policy afterwards. And I think one of the things that's interesting to me is you have a university who's adopting this policy, has maintained it for a long time.

 

They fight for the constitutionality of it for many years and say that, not only it's constitutional, but it's necessary for us to achieve our mission. And yet, when faced with the thought that we might lose, they then take it away. And I think that's one of the problems in litigating these, especially for students who were only there for a couple of years. They lose a couple of years of their life on campus while the university is fighting this. And then, all of a sudden, the university changes their tune and pulls the policy. 

 

Abigail Smith:  Absolutely. The student plaintiffs have a kind of unique disadvantage in challenging these policies, because, like you say, they're only there for three, four, or five years. A lawsuit, especially going up to the Supreme Court, can take well over five years. In fact, I would say it would be unusual for a case to get to the Supreme Court in less than three or four years, especially if it has factual development. So, it's already very difficult for students to challenge these university policies and then to allow them to be mooted.

 

Those students who know that the policy is wrong will graduate. So, there's no institutional memory. And, therefore, several years later, it's easy for a university to readopt those policies. We have seen this happen several times at FIRE. And so, FIRE kind of has the institutional memory because we have written letters on behalf of student groups multiple times against the same university. But it's very challenging. And that's why the doctrine of voluntary cessation is so great to kind of prevent these abuses from happening, and why it's somewhat disappointing that it wasn't invoked here. 

,

Tyson Langhofer:  In fact, in this case — speaking of students graduating — I think all of the original members that Speech First relied upon when they first filed the lawsuit had graduated by the time it got to the court of appeals. And they had to supplement the record with some additional members and affidavits in order to continue their standing there. So, it does demonstrate the difficulty with maintaining these. All right. So where do we stand? Where does the law currently stand, basically, with respect to bias response teams on college campuses? 

 

Abigail Smith:  So, I would say it stands exactly where it did a year ago. It's very up in the air, depending on geography. If you live in Florida or Michigan or Texas, and you're a college student at a public school, you are protected. If your school has a bias response team, that is probably unlawful over the holdings in those courts. If you are in Illinois, in the Seventh Circuit and, like I alluded to, technically, now there's no ruling in the Fourth Circuit, but seems likely that they'll readopt it if it ever comes up.

 

So, if you are living in Illinois or Virginia, you are not protected. You can be subject to kind of a surveillance regime that encourages self-censorship on campus. So, the circuit split is still there. It could not be a clearer circuit split. It's the exact same plaintiff, suing universities over very similar, near-identical policies, with completely different legal rulings. So, I think that, here, the Supreme Court ultimately just punted. I think it has to come back to the Court at some point. Maybe the Oklahoma case in the Tenth Circuit is another chance at that. 

 

But, yeah, I don't think this is over. I think there's going to continue to be a lot of litigation over this. Because, like we mentioned at the top, they're everywhere. Over 450 colleges and universities in the U.S. have these systems. If it's at a public school, it does chill speech. It does violate the First Amendment. So, I think we're just going to see a lot more litigation over this in the next few years.

 

Tyson Langhofer:  All right. Well, let's move into the Q&A. We've got five or six questions in here. So, I'll throw these out to you. So, the first one is, "Do you think the Department of Education's forthcoming Title IX rule will impact free speech rights on campuses in light of some of the definitions?" And I'll let you talk about it. Then I'll chime in as well.

 

Abigail Smith:  So, it talks about sex-based harassment. So, the Supreme Court has actually commented on what qualifies as harassment that is beyond the protection of the First Amendment. And that was in a case called Davis. And, of course, I don't have it up at the top of my head. But I believe the standard is that it has to be so pernicious and pervasive that it effectively prevents someone from obtaining an education in the school context.

 

      So, whenever the Title IX Department of Education regulations come out, it doesn't really matter, because the First Amendment has precedent over what the Department of Education says.  And so, to the extent they want to define sex-based harassment so broadly as to cover things that are protected by the First Amendment, those rules will be challenged. And we have seen this. FIRE has participated in those challenges before. Those rules will likely be enjoined, to the extent they cover speech that is protected by the First Amendment.

 

Tyson Langhofer:  Yeah, the Davis standard is "severe, pervasive, objectively offensive and deprives of an educational benefit.  So, it's a really high standard, right?

 

Abigail Smith:  Yes.

 

Tyson Langhofer:  And if any policy, including the new Title IX regs, if they go through without being amended, if they cover speech that does not meet that standard, then it would be unconstitutional and would be challenged. And we, actually, the ADF, wrote a number of letters, comments and responses to the proposed regs. We have a number of concerns. We believe they have a bunch of problems in speech.

 

Punishing protected speech is one of those. So, I do think, if they are adopted as proposed, I do think they will be challenged on speech grounds, and I think there's a really good chance that somebody could prevail in challenging those. Because I think that they are currently overbroad in the type of speech they're covering.

 

Abigail Smith:  Absolutely. FIRE has written several comments to that effect as well.

 

Tyson Langhofer:  All right.  So, the question about how about private universities like Harvard, so, the discussion we've had today, does it cover private universities, Abby?

 

Abigail Smith:  So, this does not apply to private universities because of the simple fact that they are not covered by the First Amendment. Some people have challenged speech-restrictive policies at private colleges and universities under a breach of contract theory. So, under that theory, many private colleges and universities, in their student handbooks and in their school policies, have commitments to academic freedom and free speech that is basically equivalent to what the First Amendment protects. 

 

And so, people have sued, saying "You made a contractual guarantee in this policy or handbook that you would effectively keep First Amendment standards at your school, and you violated that, whether it be through a speech code or a bias response team. Those lawsuits have not been very successful. I believe maybe one has been successful. It was not recently, but, basically, these types of challenges. But Speech First, I think they're only going to be against public colleges and universities.

 

Tyson Langhofer:  So, there's a question about "Are these bias response teams somehow responding to any federal mandate?"

 

Abigail Smith:  So, as in response to things from Title IX, or things like that?

 

Tyson Langhofer:  Yes.

 

Abigail Smith:  They may have been inspired by that. But certainly, Title IX does not require that schools have a bias response team. Usually, any school that has a bias response team also has a separate Title IX office. And that would be in response to the federal mandate. I would say none of these bias response teams are required under federal law, no.

 

Tyson Langhofer:  Okay. 

 

Abigail Smith:  And that defense has never been raised either, by any of the schools, that I'm aware of.

 

Tyson Langhofer:  Yeah, they're not claiming that they have some mandate by the federal government, in fact, because Speech First is saying the federal government has the First Amendment, which says you can't do this, right?

 

Abigail Smith:  Yes.

 

Tyson Langhofer:  All right. And so, the next question is about the website designer case, whether the standing argument is affected by that. I think they're talking about ADF's case, the 303 Creative case, which we won recently. And so, they said, in that case, the website designer desired to do a wedding website but had not done so, fearing the state regulatory body would come after her. It's really not affected here, in my mind. 

 

And the reason why is because, in that case, Colorado said that the policy does apply to her speech, and it would prohibit her from doing that speech. And if she did it, they would punish her for that. So that was very clear. Whereas, in this case, I think it's true that Virginia Tech never said, "Yes, we would punish you if you engaged in the type of speech you want to engage in. Is that right, Abby?

 

Abigail Smith:  Yes. You would know more about that than me, obviously, having been part of that team. But you're exactly right. There were stipulated facts in that case that basically got rid of the standing issues that are present in Speech First cases.

 

Tyson Langhofer:  The next question is "Is there any current litigation on public high school campuses, so K-12 campuses, that are chilling speech through bias type regulations?"

 

Abigail Smith:  I would say there are a lot of open speech cases against K-12. I know ADF has some where FIRE has filed amicus briefs. FIRE, ourselves, we also have multiple K-12 challenges going on. One of them, I believe, it's been filed. But I'm not sure if it's been filed yet, so I won't talk about our specific litigation yet. But, yes, there are many challenges going on at the K-12 level. But it's a very different analysis. Because given that students in K-12 are minors, they're subject to a different standard. 

 

K-12 students do have freedom of speech. But, under a case called Tinker, given the unique circumstances of teaching children and teenagers in school, it's just kind of a different environment. There are very different standards for what kind of speech can be restricted. Those challenges are definitely going on, yes. But it's not really the same analysis that takes place in the campus context, where everyone is an adult. 

 

Tyson Langhofer:  That's right. And I've done a lot, and we've got some pending, as you said. They're not normally called "bias response teams." Typically, they punish them under a bullying or harassment policy, or under a Title IX. Those are the things that I've seen where they come in and they just have a general policy. And, as you said, they have a little bit broader discretion to punish speech under Tinker.

 

And they typically say it's not normally under a bias lens, necessarily. It could be under harassment or discrimination.  And the Liam Morrison case, which we have, is a seventh grader who was punished, or told he couldn't wear a shirt that said, "there's only two genders." They did the same thing. They essentially used a bullying or harassment non-discrimination policy to say that you can't engage in that.

 

Abigail Smith:  Yeah. And we filed a brief in support of you in that case.

 

Tyson Langhofer:  You did. And we appreciate that. And we're waiting for a ruling at the First Circuit in that. So, the next question, "Do you think Justice Jackson's view of equitable mootness, as reflected in her dissent, will gain any traction with the other justices?" Any thoughts on that, Abby?

 

Abigail Smith:  I don't. It's so hard to read the tea leaves. I don't think so, to the extent that I don't think it's going to get traction with a majority, certainly. I think that, if others were interested, they probably would have joined her. So, perhaps she could get one or two other justices. But I don't think it's going to be adopted by the Court anytime soon. 

 

Tyson Langhofer:   We've got time for one more question, I think. So, somebody asked, "Has anyone tried using the bias response team process to address disruptions by liberals of conservative events?" Are you aware of anything like that?

 

Abigail Smith:  So, let me think. I know that these cases probably exist. Off the top of my head, I can't name any. These types of policies are predominantly used against conservative students, mostly because those students have viewpoints that don't align with most university administrators. There is one case, actually, that I just recalled where a number of pro-Palestinian students put up flyers that were parodying or copying what an Israeli eviction notice looked like. 

 

So, they were making it look like an Israeli eviction notice, but it was very critical of Israel, and posting them all around campus. And those students were investigated by the university administration. And they were reported through the bias response team protocol. So, it does happen. It has happened. But it certainly is less common than the targeting of speech by conservative students. 

 

Tyson Langhofer:  I think that's all the time we have.  So, thanks so much, Abby, for a wonderful discussion.

 

Abigail Smith:  Thank you.

 

Chayila Kleist:  I will second that. Thank you so much, on behalf of The Federalist Society. We really appreciate you both lending us your time this afternoon and sharing your valuable expertise. Thank you also to our audience for joining and participating. We welcome listener feedback by email at FedSoc Forums at FedSoc.org. And, as always, keep an eye on our website and your emails for announcements about other upcoming virtual events. With that, thank you all for joining us today. We are adjourned.