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Virginia Tech speech police questioned by skeptical Fourth Circuit

A three-judge panel must decide whether a procedure for reporting incidents of bias and discrimination prevents students from talking freely about hot-button issues.

RICHMOND, Va. (CN) — The Fourth Circuit heard heated arguments Tuesday morning over the constitutionality of Virginia Tech’s so-called bias response team, which one group says has a chilling effect on students’ right to free speech. 

Speech First, an organization dedicated to protecting free speech on college campuses, brought a lawsuit against the Blacksburg, Virginia, university in 2021, seeking to block enforcement of two policies.

The first is the bias response procedure, which allows students to anonymously report other students they believe are participating in biased actions to a group of Virginia Tech officials, who can then ask the student or students to voluntarily meet with them to talk about why their views may be problematic.

In court filings, Speech First included multiple examples of ways it says the policy is used against protected speech, including a report that a student told a joke using celebrity Caitlyn Jenner’s "deadname" – her name before her gender transition – during a classroom “lecture about … corn.” The bias response complaint alleged discrimination on the basis of gender identity.

The group also takes issue with the university's policy requiring students to get approval before petitioning or setting up tables on campus. 

The case is on appeal to the Richmond-based Fourth Circuit after a federal judge ruled that Virginia Tech’s bias response team did not chill free speech.

Most of Tuesday's hearing was centered on the chilling of protected speech. The policy does not give Virginia Tech officials any authority to discipline students who are reported unless they broke a law or a university rule. 

Representing Speech First, attorney James Hasson said that although the meetings with the response team are voluntary, many students feel obligated to attend if requested. Because the students would have to defend their point of view to the officials, Hasson said they feel nervous about expressing their beliefs on campus. 

“The policy creates self-censorship due to enforcement,” he said. 

A recurring question was whether enforcement was needed to chill free speech. Representing Virginia Tech and the university’s president Timothy Sands, attorney William Hurd of Eckert Seamans continuously argued that, since there was no rule that prohibits free speech, the university had nothing to enforce against students.

U.S. Circuit Judge J. Harvie Wilkinson III, a Reagan appointee who said the case brought about many “First Amendment red flags,” asked how it could not have a chilling effect when students can be reported for what they say. 

Hurd said in response that because the university values the First Amendment, many of the reports are not further investigated and it is rare for a student to be asked to come in for a voluntary meeting. 

“We look at each complaint through the lens of the First Amendment,” Hurd said. 

On the issue of the petition preapproval policy, Hasson opened Tuesday's hearing by asking the three-judge panel if they think the school’s policies towards combating bias on campus go too far. 

U.S. Circuit Judge Albert Diaz, an Obama appointee, said he believes the policy requiring students to ask permission to petition is purely a logistical one aimed at making sure each student and student organization has a fair chance at reserving spots on campus. 

Hasson responded by asking why advertisers do not have to ask for approval from the university to set up on campus, but students do. U.S. Circuit Judge Diana Gribbon Motz, appointed by Clinton, replied by simply stating, “One is advertising, one is not.” 

Hurd said the school does not review content from the students requesting to petition or table and therefore does not limit their ability to exercise their First Amendment rights based on a controversial viewpoint. 

Diaz and Hasson disagreed on whether a university has the responsibility to mediate speech amongst students. Wilkinson seemed to side with Hasson when it came to the university's oversight of free speech. 

“You got a university that's supposed to be free for dialogue, but you have to channel it through an approval process,” the judge said. 

Wilkinson spoke about the founding of the United States and asked Hurd if he believed the men who wrote the Constitution would want citizens to have to ask the states for permission to practice free speech. Hurd maintained his position that the approval process is in place simply for logistical reasons and that no student or organization is turned away due to their beliefs. 

In Speech First’s brief to the Fourth Circuit, the group detailed accounts from two Virginia Tech students who claim their free speech was censored due to having unpopular opinions. One student believes the national Black Lives Matter movement triggered by the police killing of unarmed Black men is bad for the country, while the other thinks a wall must be built on the U.S.-Mexico border to keep illegal immigrants out. 

“Students A and C want to 'engage in open and robust intellectual debate' with their fellow students and 'speak passionately and repeatedly' about their views in class, online, and in the broader community,” the brief states. “But Students A and C fear that students, faculty members, or others will report them to university officials for committing a bias incident.”

Virginia Tech filed a motion to dismiss the case on the basis that one of the students had already graduated and the other would be graduating in December, likely before the appeals court’s order is issued. The panel judges joked with Hurd that he underestimates their efficiency. 

Motz ended the hearing by telling Hasson that to her, the policy seems not to have much bite when it comes to discipline, indicating there may not be enough of a chilling effect for Speech First’s case to move forward.

Neither Hasson nor Hurd responded to requests for comment after the hearing. 

Speech First President Cherise Trump expressed gratitude for the court taking up the case.

“Speech First is grateful for the opportunity to make its case to the panel today and eagerly awaits its decision," Trump said.

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