It should have been a lay up for the Supreme Court, having been teed up by Fourth Circuit dissenting Judge Harvie Wilkinson.
How did it ever come to this—that such a fine and distinguished university would institute a policy with such incipient inquisitional overtones, one that turns its campus into a surveillance state? The First Amendment guarantees to everyone not just passive access to but active participation in the marketplace of ideas. Today, the majority breaks that promise to a segment of society who needs it most—college students.
The case involved Virginia Tech’s “Bias Intervention and Response Team,” that would go into action upon receipt of a complaint that someone said something wrong. By “wrong,” that meant pretty much anything.
The policy encouraged students to report — anonymously online, if they preferred — anything that “feels like” bias. The university defined bias broadly as “expressions” — students’ conversations, posters, voice mails, emails, texts, jokes, etc. — seen or heard (or overheard, or heard about), on campus or off.
Bias could be against a “person or group” because of “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.” “Genetic information”? Bias-detectors cannot be too exhaustive.
The majority at the circuit, by Senior Judge Dianna Gribbon Motz, held that plaintiff, Speech First, failed to produce direct evidence that these Teams chilled speech. The BIRTs lacked the authority to impose punishment, but only to “invite” students to a voluntary meeting about their transgression.
While the dissent proclaims that “[c]ollege students hoping to stay on the administration’s good side will not view the [BIRT’s] ‘invitation’ as voluntary,” the district court found as a fact that there was “no evidence that students feel obligated to come to these voluntary meetings.”
What evidence of a negative should there be? If the issue is chilled speech, then the point is that speech was chilled such that there is a void where speech would otherwise have been. What more was needed to appreciate that bias response teams had “incipient inquisitional overtones” and turned the campus into a speech surveillance state”?
Last week, the supposedly activist Supreme Court passively refused to hear Speech First’s appeal against the 4th Circuit’s passivity. Justice Clarence Thomas, joined by Justice Samuel A. Alito Jr., vigorously dissented, saying that Virginia Tech’s regulating of speech “appears limitless in scope”: “From the moment a student enters the university until graduation, he is under the university’s surveillance.” On campus and off.
Much as I hate it when Thomas or Alito are right, they are right, and this was the case to determine whether bias response teams chill free speech on campus. And the Supreme Court took a pass after Virginia Tech made a switcheroo in an effort to moot the case.
After emphatically asserting the constitutionality of its speech-control apparatus, Virginia Tech suddenly modified it, clearly hoping that the Supreme Court would do what it did last week: It declared Speech First’s challenge moot, meaning no longer a live controversy. Thomas, however, noted: “Other universities have attempted a similar maneuver” — what one circuit court dryly called “a sudden change of heart, during litigation,” about their speech codes, to claim mootness. But, Thomas noted, two circuit courts “have found that these policy changes did not moot Speech First’s challenges.”
But the issue is a recurring one, and easily changed with campus policies that will allow it to perpetually evade scrutiny. Now that cert has been denied, will they switch back, or to some similar variation on a theme, thus starting the cycle anew?
Citing Wilkinson’s warning that wary students will decide that expressing their thoughts is not worth the potential trouble, Thomas warned that until the court clearly speaks about First Amendment rights on all campuses, there will be a national “patchwork” of rights. Students in regions covered by different circuit courts will be able to challenge oppressive school administrations. Students in less fortunate regions can still be pressured to avoid controversial speech in order, Thomas wrote, to “escape their universities’ scrutiny and condemnation.”
Indeed, when a student or professor is sanctioned for speech, there is something to latch on to, to point to, to challenge. But chilled speech is a mere notion, the speech that never happened, making it a far more insidious violation of the First Amendment. It’s not the words uttered that are at stake, but the words unsaid because it’s “not worth the potential trouble.” Yet this activist conservative Supreme Court denied cert because they failed to hear the sounds of silence.
