Federal appellate court rejects claim that Virginia Tech’s bias reporting policy chills Free Speech

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The 4th U.S. Circuit Court of Appeals ruled that Virginia Tech’s bias reporting protocol did not violate the First Amendment or chill Free Speech.

Key Players

Virginia Polytechnic Institute and State University (VT) is a public research university in Blacksburg, Virginia.

Speech First Inc, a national organization, defines itself as a “nationwide community of free speech supporters” who fight “toxic censorship culture on college campuses” through advocacy, litigation, and education. The organization has brought lawsuits against other universities, such as the University of Michigan, the University of Illinois, and Texas State University, for alleged Free Speech violations.

Further Details

According to Virginia Tech’s protocol, bias-related incidents are “expressions against a person or group because of the person’s or group’s age, color, disability, gender, gender identity, gender expression, genetic information, national origin, political affiliation, race, religion, sexual orientation, veteran status, or any other basis protected by law.” 

Such incidents can be categorized as localized or community-based, and are reported anonymously to university officials. Under the policy, students who are the subjects of complaints are encouraged, but not required, to meet with an appropriate faculty member.

On April 21, 2021, Speech First filed a federal lawsuit against Timothy Sands, the VT president, and several other university officials, alleging that the protocol violated the First and 14th Amendments.

“Virginia Tech and its officials have created a series of rules and regulations that restrain, deter, suppress, and punish speech about the political and social issues of the day,” the complaint states. “These restrictions disregard decades of precedent.”

Speech First detailed the accounts of two VT students who claimed they were pressured to censor themselves for having unpopular views. One student thought that the Black Lives Matter movement was “bad for the country,” and another thought a wall had to be built on the U.S.-Mexico border to keep undocumented immigrants out of the country. 

VT’s “effort to restrict (and even punish) speech based on content goes against the commitment to academic discourse that is supposed to be paramount in higher education,” Nicole Neily, president and founder of Speech First, stated. 

The complaint also criticized VT’s discriminatory harassment and computer policies as “vague and overbroad” restrictions on protected speech, and further alleged that the policies and protocol would discourage conservative students from applying to VT.

On September 21, 2021, U.S. District Judge Michael Urbansk, nominated by former President Barack Obama, granted in part Speech First’s motion for a preliminary injunction with respect to VT’s computer policy, but ruled that Speech First did not demonstrate clear damage, saying there was a “gap between the students’ subjective fears [of censorship] and the language of the policy itself.”

Outcome

Federal appellate court denies Free Speech Inc. complaint

On May 31, 2023, after Speech First appealed the decision of the district court, the majority of a three-judge panel of the 4th U.S. Circuit Court of Appeals ruled that VT’s bias reporting protocol and policies did not violate the First Amendment. 

The appellate court found that the bias reporting system merely attempted to deter hate speech, rather than ban it outright, making it “within the bounds of acceptable government speech” as VT had not “imposed or threatened to impose any discipline on anyone.”

“Our country rightfully places great value on the freedom of speech, and any statute or regulation implicating speech receives close scrutiny. Freedom of speech, after all, is expressly protected in the very first of the original amendments to our Constitution. But the First Amendment does not stand in the way of modest efforts to encourage civility on college campuses,” wrote Judge Diana Gribbon Motz, nominated by President Bill Clinton.

The appellate court also found that Speech First did “not show that the bias policy credibly threatens injury to the organization’s members,” and also noted that the alleged victims no longer attended VT.  

Judge J. Harvie Wilkinson III, appointed by President Ronald Reagan, dissented, stating that the bias reporting system was intimidating. 

“The stark reality of the record is that programs like the Bias Intervention and Response Team are being used in the service of discouraging that open inquiry from which education draws its very meaning and sustenance,” Wilkinson wrote. “What is protected speech to one may seem unprotected to another. The First Amendment is not to be so casually consigned to the eye of the beholder,” he said. 

Wilkinson further asserted that the policies restricted “the role that speech can play in our democracy at the very time the unique capacities of university speech are needed most.”

As of July 24, 2023, there were no further developments in the case.