Speak Up: Speech First, Inc v. Sands, the Supreme Court, and Free Speech on College Campuses

Matt Berkery

College campuses – petri dishes of civic activism – have long served as epicenters of First Amendment exercise, providing a sprawling platform for demonstrations, displays of expression, and free speech. As the youth demographic (18-29) becomes increasingly consequential in U.S. elections, as demonstrated by its role in thwarting the “red wave” in the 2022 midterm,[1] First Amendment exercise by college students has more potential than ever to catalyze tangible change. But as political polarization erodes democratic institutions, unleashing a Pandora’s box of economic and social implications, the Supreme Court would be wise to take on a case that could make a decisive statement on college students’ First Amendment rights.

The genesis of student free speech precedent traces back to Tinker v. Des Moines (1969), in which the Supreme Court ruled that public school officials cannot censor student speech unless it causes a disruption to the learning environment.[2] This case came at a contentious time in American politics – with the Vietnam War at its height, trust in government nosedived as the vast majority of Americans opposed the war. In fact, the First Amendment question in Tinker v. Des Moines rested on students wearing armbands in symbolic solidarity with Vietnam combatants.[3] Subsequently, Healy v. James more definitively extended these liberties to college students, upholding the notion that prior restraint is detrimental to democracy.[4] Justice Lewis F. Powell Jr. contested in the majority opinion that the college classroom is a “marketplace of ideas,” and that the state-run Central Connecticut State College infringed on students’ First Amendment rights by refusing to acknowledge a campus chapter of Students for a Democratic Society.[5] Critically, this distinction only pertains to state-owned schools, since the First Amendment only
explicitly applies to the government and government actors.

The rulings in the five decades following Healy v. James have introduced several notable caveats to students’ First Amendment rights – particularly in the way of free speech – that mold the civic function of college campuses. For instance, Bethel v. Fraser (1986) ruled that lewd and obscene speech are not protected under the First Amendment,[6] and Hazelwood v. Kuhlmeier (1988) found that school officials have the right to prevent the publication of certain articles in school newspapers.[7] While the Court withheld the question as to whether these First Amendment parameters apply at the university level, myriad circuit courts have applied this standard to colleges and universities, sparking debate on the extent to which the Hazelwood precedent should apply to higher-education students.[8] In light of college
students taking to social media to exercise free speech, however, the framework provided by these cases has become somewhat antiquated.

With the rise in informal exertion of First Amendment rights by college students – whether on social media or through loosely organized campus demonstrations – has come an equally subtle response in the form of “bias response teams,” which the Supreme Court has yet to address. Most recently, the Speech First, Inc v. Sands (2023) case takes on these questions amid a backdrop of heightened political polarization, considering whether higher-education institutions hold the jurisdiction to “informally target disfavored speech.”[9] The case challenges Virginia Tech’s Bias Intervention and Response Team (BIRT), which responds to bias-related incidents by “serv[ing] as a sort of ‘air traffic control’ for bias-related complaints,”[10] as then-dean of students Byron Hughes articulated in a court filing. Speech First, the plaintiff in the case, sued Timothy Sands – the President of Virginia Tech – on the grounds that the BIRT violates students’ First Amendment rights. They also claimed the the “Informational Activities Policy” in Virginia Tech’s Student Code of Conduct violates students’ First Amendment Rights, given its restrictions on event advertisement, petition gathering, and informational material distribution.[11] The district court
declined to enjoin the enforcement of these policies, citing the tentative ground Speech First stood on – in the court order, the group provided no evidence that the school took any action in response to reports made to the bias team.[12] The district court also found that the group lacked standing and the right to a preliminary injunction, contending that its members had not been injured because the BIRT had no authority to discipline students for their speech.[13]

The U.S. Court of Appeals for the 4th Circuit upheld the district court’s decision. Writing the majority opinion, Senior Judge Motz affirmed that Virginia Tech’s bias response policies do not chill students’ speech because of their informal, non-disciplinary nature.[14] In its application of relevant standing requirements, the Fourth Circuit found that the bias policy failed to meet the two conditions of this test: plaintiffs suffering a “concrete injury even when the state has simply ‘chilled’ the right to engage in free speech and expression,”[15] and whether “the asserted chill ‘would likely deter a person of ordinary firmness from the exercise of First Amendment rights.’”[16] In doing so, the Fourth Circuit called on the
Bantam Books v Sullivan (1963) precedent, which held that a “state commission with no formal regulatory power violated the First Amendment when it ‘deliberately set out to achieve the suppression of publications’ through ‘informal sanctions,’ including the ‘threat of invoking legal sanctions and other means of coercion, persuasion, and intimidation.’”[17] The Fourth Circuit made a distinction between
Virginia Tech’s policies and the government action in Bantam Books, finding that the BIRT didn’t hold the same “great coercive authority”[18] as the Massachusetts Attorney General in Bantam Books.[19]

In a dissenting opinion, Judge Wilkinson concluded that the BIRT’s policies took on intentionally nebulous language that could label virtually anything a bias incident.[20] He cited the probing nature of the BIRT and Virginia Tech’s insistent promotion of the group, citing a campaign that urged, “If you hear or see something that feels like a bias incident, statement, or expression, we encourage you to make a report.
In short, if you see something, say something!”[21] He also disputed the majority’s claim that the bias policy could not chill speech because it lacked formal punitive authority, and that the BIRT still entailed “collateral consequences” that would reasonably encroach on students’ First Amendment rights.[22]

Critically, this dissent calls into question the majority’s application of the Bantam Books precedent. Given the chasm in the circuit court in determining the constitutionality of bias policies, the use of Bantam Books as a constitutional bedrock not only erroneously supersedes First Amendment provisions, but also disregards the central point of the Bantam Books ruling – that subtle censorship poses an incontrovertible threat to free speech. In the words of Justice Brennan, who wrote the majority opinion in Bantam Books, “the freedoms of expression … are vulnerable to gravely damaging yet barely visible encroachments.”[23] Consequently, the comparisons made by Senior Judge Motz between the Bantam Books Commission and the BIRT are misleading, as they undermine the coerciveness of the BIRT and overstate the distinction between the two authorities. In Bantam Books, the Commission sent officers to visit publishers and discuss their obscene material and affirm their power to refer cases for prosecution.[24] In a similar fashion, the BIRT contacted individuals accused of bias and reminded students of their ability to refer bias incidents to disciplinary bodies, including local police.[25] The majority effectively undermined the coerciveness of the BIRT and discursively emboldens universities to use informal methods of punishing disfavored (“biased”) speech, further contributing to polarization across the political spectrum that jeopardizes First Amendment rights.

The Supreme Court has been conspicuously reluctant to rule on matters related to First Amendment rights on college campuses. Particularly with contemporary issues like bias response teams, as exhibited in Speech First, Inc v. Sands, the Supreme Court’s restraint only further imperils the First Amendment and allows polarization to fester.

In early March, the justices set aside the Speech First case, dismissing the case as moot, since the BIRT and other bias policies at Virginia Tech were terminated in 2023.[26] Without definitive Supreme Court precedent, “there will be a patchwork of First Amendment rights on college campuses,” as Clarence Thomas noted in a dissenting opinion on the dismissal of the Speech First case.[27] But Speech First isn’t
the only case to encompass such fundamental questions over First Amendment rights, and if granted a writ of certiorari, the questions raised by several other lower court cases could serve as the panacea for this patchwork.

For instance, in UWM Post v. Bd. of Regents of University of Wisconsin (1991), the court permanently barred the University of Wisconsin from enforcing a rule that students could be disciplined for behavior that was discriminatory for reasons including race, sex, religion, color, disability, sexual orientation, national origin and age.[28] The student newspaper argued that the policy was vague and overly broad, and the district court concurred, noting that “above all else, the First Amendment means that the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”[29] The court also dismissed the university’s argument that its definition of hate speech fell under the “fighting words” exception to the First Amendment.[30] A case of a similar nature, if moved up the ladder to the Supreme Court, could provide clarity on these issues.

Moreover, with its Leonard Law,[31] California serves as an important exception to the general rule that the First Amendment only applies to government entities. The statute bars private universities from sanctioning students for speech that would be protected by the First Amendment. The protection extends to speech “outside the campus or facility of a [school],”[32] which would presumably include social media.
Social media is an essential arena in any discussion of college campus free speech. Activism is often fostered through social media channels, where students share ideas and organize protests and rallies.

In 2021, the Supreme Court decided a case challenging a high school student’s right to off-campus free speech through social media. Mahanoy Area School District v. B.L. (2021),[33] better known as the “Snapchat cheerleader case,” revolved around a school disciplining a student for the content of her off-campus social media post. The cheerleader posted a Snapchat photo of herself flashing the middle finger, with the message “F_ school F_ softball F_ cheer F_ everything.”[34] The school punished the teen for negatively impacting morale. However, the Supreme Court ruled 8-1 that social media speech outside of school hours and when the student was not under the supervision of the school was protected speech under the First Amendment. We can presume implications for universities from Mahanoy v. B.L., but the court has yet to rule on a social-media free speech case of equal weight involving college students. In fact, the Supreme Court still grapples with issues of free speech on social media for the American public at large, particularly over the issue of Section 230 of the Communications Decency Act of 1996.[35]

The fragmented body of current free speech precedent provides little standardization in protecting First Amendment rights for students, and grapples with symptoms of political polarization, like bias response teams, that only further complicate this precedent. Tracing back to the Kent State shootings, in which the
Ohio National Guard opened fire on a crowd of college students protesting the Vietnam War, leaving four dead and nine injured, First Amendment rights have long endured governmental threats. In fact, given that “both parties have moved further away from the ideological center since the early 1970s,”[36] it can be
construed that polarization directly causes First Amendment rights to hang in the balance. As noted in Papish v. Board of Curators of Univ. of Mo., “State colleges and universities are not enclaves immune from the sweep of the First Amendment.”[37] Yet as individual incidents on college campuses snowball, mounting political tensions through “negative partisanship” and “pernicious polarization” that exacerbate gridlock in Congress, the Supreme Court faces a fundamental issue over the First Amendment: Does modern society require guardrails on free speech and, if so, who has the right to put them up?

In the absence of such clarity, college campuses have been experiencing a rise in rancor, especially since the outbreak of the Israel-Hamas war.. Passions continue to run high amid the conflict, and one person’s form of self-expression is another person’s incendiary comment. As colleges and even states try to address tensions, their actions threaten to encroach on First Amendment rights. New York University shut down a poetry reading that included work by a Palestinian academic who was killed weeks earlier in an Israeli airstrike. Texas Gov. Greg Abbott issued an executive order requiring schools to discipline what he described as “the sharp rise in antisemitic speech and acts on university campuses.”[38] And Berkeley,
where triumphant free-speech protests shaped opposition to the Vietnam War in 1964, is wrestling with the topic once again: The UC Regents are considering a proposed policy that would limit how campus departments could express opinions about contentious or complex issues on their publicly funded university websites. UC President Dr. Michael V. Drake articulated that “what we are facing today is
uncharted territory in many respects,” and that the UC Regents “are navigating it actively” – even if they “are not always perfect, [they] are learning and adjusting as [they] go.”[39]

Ultimately, the need for definitive precedent holds firm. The Supreme Court can no longer avoid the issue of First Amendment rights on college campuses: It’s time for the nation’s highest court to speak up.

Works Cited

  1. Kiesa, Abby. “Near Record-High Numbers of Young People Voted during the Midterms, Signaling a Possible Shift – or Exception – in Voting Trends.” The Conversation, May 15, 2023. https://theconversation.com/near-record-high-numbers-of-young-people-voted-during-the-midterms-signaling-a-possible-shift-or-exception-in-voting-trends-194957.
  2. Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).
  3. Id.
  4. Healy v. James, 408 U.S. 169 (1972).
  5. Id.
  6. Bethel School District v. Fraser, 478 U.S. 675 (1986).
  7. Hazelwood v. Kuhlmeier, 484 U.S. 260 (1988).
  8. LaVigne, Christopher N. “Hazelwood v. Kuhlmeier and the University: Why the High School Standard Is Here to Stay.” FLASH: The Fordham Law Archive of Scholarship and History, n.d. https://ir.lawnet.fordham.edu/ulj/vol35/iss5/5/#:~:text=While%20the%20Court%20reserved%20the,speech%20at%20colleges%20and%20universities.
  9. Hlr. “Speech First, Inc. v. Sands.” Harvard Law Review, February 11, 2024.
  10. Def.’s Opp’n to Prelim. Inj. Exhibit 1, Declaration of Byron Hughes, May 21, 2021.
  11. Speech First, Inc. v. Sands, 69 F.4th 184 (4th Cir. 2023)
  12. Id.
  13. Id.
  14. Brief In Response to Petition and Suggestion of Mootness , n.d.
    https://www.supremecourt.gov/DocketPDF/23/23-156/285396/20231018140754160_23-156Brief in Response to Petition.pdf.
  15. Speech First, Inc. v. Sands, supra (citing Cooksey v. Futrell, 721 F.3d 226, 235 (4th Cir. 2013)).
  16. Speech First, Inc. v. Sands, supra (quoting Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 500 (4th Cir. 2005)).
  18. “Appellant, V. Timo.” U.S. Supreme Court , n.d.
  19. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 66 (1963).
  20. Speech First, Inc.. Petition for Writ of Certiorari, August 14, 2023.
  21. “Speech First, Inc. v. Sands.” Legal Information Institute. Accessed April 14, 2024.
  22. Id.
  23. Bantam Books, Inc. v. Sullivan, supra.
  24. Id.
  25. Speech First, Inc. v. Sands, supra.
  26. Id.
  27. Id.
  28. UWM Post v. Board of Regents of U. of Wis., 774 F. Supp. 1163 (E.D. Wis. 1991).
  29. Id.
  30. Id.
  31. Cal. Educ. Code Sec. 48950 Cal. Educ. Code Sec. 66301 Cal. Educ. Code Sec. 94367
  32. Id.
  33. Mahanoy Area School District v. B. L., 594 U.S. _ (2021).
  34. Id.
  35. 47 U.S.C. § 230.
  36. DeSilver, Drew. “The Polarization in Today’s Congress Has Roots That Go Back Decades.” Pew Research Center, March 10, 2022. https://www.pewresearch.org/short-reads/2022/03/10/the-polarization-in-todays-congress-has-roots-that-go-back-decades/.
  37. Papish v. Board of Curators of Univ. of Mo., 410 U. S. 667, 670.
  38. Dey, Sneha. “As Texas Students Clash over Israel-Hamas War, Gov. Greg Abbott Orders Colleges to Revise Free Speech Policies.” The Texas Tribune, March 27, 2024.
  39. Woolfolk, John. “University of California Grapples Anew with Free Speech Limits amid Israel-Hamas War Turmoil.” The Mercury News, March 21, 2024. https://www.mercurynews.com/2024/03/20/university-of-california-grapples-anew-with-free-speech-limits-amid-israel-hamas-war-turmoil/.