The Supreme Court does not hear many cases these days. It is very stingy in granting certiorari, even in cases that present clear circuit splits. This morning’s Order List provides a good example, as the Court denied certiorari in Speech First v. Whitten, which presented the question whether university “bias-response teams” objectively chill students’ speech under the First Amendment (and, as a consequence, whether there is Article III standing to challenge them).
Only two justices (Alito and Thomas) indicated their desire to hear this case. One, Justice Thomas, wrote a dissent from the cert denial. It begins:
More than 450 of our Nation’s colleges and universities have “bias response teams.” These teams “encourag[e] students to report one another for expressions of ‘bias,'” and then review and act upon reports. Speech First, Inc. v. Sands, 601 U. S. ___, ___–___ (2024) (THOMAS, J., dissenting) (slip op., at 1–2). In reviewing First Amendment challenges to bias response teams, the Courts of Appeals have split as to whether they “objectively chill” student speech for purposes of Article III standing. I would grant certiorari to resolve that important split.
Why didn’t Justice Alito join Justice Thomas’ dissent? We don’t know, but one possibility is that Justice Thomas tipped his hand as how he is inclined to see the merits:
This case presents an opportunity to resolve an important Circuit split. Three Circuits, when evaluating similar facts, have rejected the Seventh Circuit’s view and found that
bias response policies “objectively chill” student speech. . . . If this case had proceeded in those Circuits, then Speech First likely would have been able to establish Article III standing. For example, the Sixth Circuit has recognized that a bias response team’s
“ability to make referrals . . . is a real consequence that objectively chills speech,” and that this “lurk[ing]” referral power causes even optional meeting invitations to “carry an implicit threat of consequence should a student decline the invitation.” . . . It makes no difference, on the Sixth Circuit’s view, if the bias response team itself “lacks any formal disciplinary power.”Previously, the Fourth Circuit joined in the Seventh Circuit’s contrary position. Speech First, Inc. v. Sands, 69 F. 4th 184, 193–197 (2023). But, based on a mid-litigation change in university policy, this Court granted the Sands petition, vacated the judgment below, and remanded with instructions for the Fourth Circuit to dismiss the suit as moot. See 601 U. S., at ___ (slip op., at 1) (citing United States v. Munsingwear, Inc., 340 U. S. 36 (1950)). The Seventh Circuit therefore stands alone.
I would grant Speech First’s petition and resolve the split. As this Court implicitly recognized when it chose to intervene in Sands, the split poses an important First
Amendment question. I continue to believe that we should clarify the scope of a student’s right to challenge university policies that “potentially pressur[e him] to avoid controversial speech.” Sands, 601 U. S., at ___ (THOMAS, J., dissenting) (slip op., at 6).The Seventh Circuit’s approach is also very likely wrong. It is well settled that plaintiffs may establish standing based on “the deterrent, or ‘chilling,’ effect of governmental regulations that fall short of a direct prohibition against the exercise of First Amendment rights.” Laird v. Tatum, 408 U. S. 1, 11 (1972). And, in assessing whether an “objective chill” exists in a particular case, . . . courts must “look through forms to the substance” of the government’s “informal sanctions,” . . . . The Seventh Circuit’s emphasis on the formal limits of a bias response team’s power seems hard to square with this Court’s framework.
Common features of bias response policies suggest that they may cause “‘students [to] self-censor, fearing the consequences of a report to [the bias response team] and thinking that speech is no longer worth the trouble.'” Sands, 601 U. S., at ___ (THOMAS, J., dissenting) (slip op., at 6) . . . At IU as elsewhere, the bias response program combines a definition of bias that “appears limitless in scope” with a “threshold for reporting [that] is intentionally low.” . . . . Compounding the problem, the option of anonymous reporting makes filing a report socially costless. . . .And, the threat that the bias response team may refer a report to other university officers for further action is a “weighty consequenc[e]” that “‘lurks in the background.'” . . . .
His dissent concludes:
Given the number of schools with bias response teams, this Court eventually will need to resolve the split over a student’s right to challenge such programs. The Court’s refusal to intervene now leaves students subject to a “patchwork of First Amendment rights,” with a student’s ability to challenge his university’s bias response policies varying depending on accidents of geography. . . . Because one of our “primary functions is to resolve ‘important matter[s]’ on which the courts of appeals are ‘in conflict,'” we should not let this confusion persist. . . . I respectfully dissent.
I am inclined to agree with Thomas — and also think the Court should hear more cases, particularly where (as here) there is a circuit split. Alas, at least six justices appear to disagree.
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