Cite as: 601 U. S. ____ (2024) 1 

THOMAS, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

SPEECH FIRST, INC. v. TIMOTHY SANDS, 

INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY 

AS PRESIDENT OF THE UNIVERSITY OF 

VIRGINIA POLYTECHNIC INSTITUTE 

AND STATE UNIVERSITY 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 

STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT 

No. 23–156. Decided March 4, 2024 

The petition for a writ of certiorari is granted. The judgment with respect to the Bias Policy claims is vacated, and 

the case is remanded to the United States Court of Appeals 

for the Fourth Circuit with instructions to dismiss those 

claims as moot. See United States v. Munsingwear, Inc., 

340 U. S. 36 (1950). JUSTICE JACKSON, dissenting: I would

deny the petition. In my view, the party seeking vacatur

has not established equitable entitlement to that remedy.

See Acheson Hotels, LLC v. Laufer, 601 U. S. ___ (2023) 

(JACKSON, J., concurring in the judgment).

 JUSTICE THOMAS, with whom JUSTICE ALITO joins, dissenting. 

Speech First, a national membership organization seeking to protect free speech on college campuses, brought suit 

against Virginia Tech to enjoin the university’s “bias intervention and response team policy.” Under that policy, Virginia Tech encourages students to report one another for

expressions of “bias”—defined as any “expressio[n] against 

a person or group because of ” an enumerated list of characteristics. App. in No. 21–2061 (CA4), p. 140. Students are 

instructed to “[r]eview” their “language, images, and other

forms of communication to make sure all groups are fairly

represented.” Id., at 144. A “bias intervention and re-
 

 

2 SPEECH FIRST, INC. v. SANDS 

THOMAS, J., dissenting 

sponse team” made up of university officials then investigates reports, with the option to refer students for discipline 

or to the police. Speech First argues that this policy 

amounts to “a literal speech police.” Pet. for Cert. i. It contends that the policy violates the First Amendment by

chilling its student-members’ speech, causing students to 

stay silent on controversial or unpopular issues for fear of

being reported to the university. The Court of Appeals for

the Fourth Circuit held that Speech First lacked standing

to bring this claim because the university’s policy does not 

objectively chill students’ speech. 69 F. 4th 184, 197 

(2023).1 It acknowledged that this conclusion diverged from 

that of three other Courts of Appeals. Id., at 197–198. 

Speech First asks us to review whether Virginia Tech’s

bias response policy objectively chills students’ speech.2 I 

would grant the petition. It raises an important question 

affecting universities nationwide; Speech First estimates 

that over 450 universities have similar bias-reporting

schemes. Pet. for Cert. 7. Yet, because of the split among 

—————— 1To establish organizational standing under our precedent, Speech 

First must first show that one of its student-members has suffered an 

injury. See Students for Fair Admissions, Inc. v. President and Fellows 

of Harvard College, 600 U. S. 181, 199 (2023). The Courts of Appeals

have reasoned that Speech First’s students suffered an injury sufficient

to confer standing if it could show the bias response policies chilled students’ speech. 2Shortly before Speech First petitioned for certiorari, Virginia Tech 

changed its policy. Other universities have attempted a similar maneuver, but two Courts of Appeals have found that these policy changes did

not moot Speech First’s challenges. See Speech First, Inc. v. Fenves, 979 

F. 3d 319, 328 (CA5 2020) (“This is not the first appeal in which a public

university has had a sudden change of heart, during litigation, about the 

overbreadth and vagueness of its speech code, and then advocated mootness”); see also Speech First, Inc. v. Schlissel, 939 F. 3d 756, 769–770 

(CA6 2019). Of course, a defendant’s voluntary cessation of its challenged conduct does not always moot a case. See Friends of the Earth, 

Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 189 

(2000). I thus refer to Virginia Tech’s policy in the present tense. 
Cite as: 601 U. S. ____ (2024) 3 

THOMAS, J., dissenting 

the Courts of Appeals, many of these universities face no 

constitutional scrutiny, simply based on geography. I have 

serious concerns that bias response policies, such as Virginia Tech’s, objectively chill students’ speech.

The First Amendment provides that “Congress shall 

make no law . . . abridging the freedom of speech.” “[S]tate

colleges and universities,” including Virginia Tech, “are not

enclaves immune from the sweep of the First Amendment.” 

Papish v. Board of Curators of Univ. of Mo., 410 U. S. 667, 

670 (1973) (per curiam) (internal quotation marks omitted). 

Although the First Amendment applies most straightforwardly to government regulations that directly restrict

speech, this Court has recognized that “constitutional violations [can also] arise from the deterrent, or ‘chilling,’ effect of governmental regulations.” Laird v. Tatum, 408 

U. S. 1, 11 (1972). After all, “the threat of invoking legal 

sanctions and other means of coercion, persuasion, and intimidation” may cause self-censorship in violation of the 

First Amendment just as acutely as a direct bar on speech. 

Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 67 (1963). 

In applying these principles, the Courts of Appeals have

divided over whether bias response policies have a “chilling 

effect” on students’ speech. Compare Speech First, Inc. v. 

Cartwright, 32 F. 4th 1110, 1124 (CA11 2022); Speech First, 

Inc. v. Fenves, 979 F. 3d 319, 338 (CA5 2020); and Speech 

First, Inc. v. Schlissel, 939 F. 3d 756, 765 (CA6 2019); with 

69 F. 4th, at 197; and Speech First, Inc. v. Killeen, 968 F. 3d 

628, 644 (CA7 2020). In this case, the Fourth Circuit held 

that Virginia Tech’s bias response policy does not chill students’ speech because the bias response team lacks authority to discipline or otherwise punish students and the implementation of the policy is not so heavyhanded that it 

deters students’ speech. 69 F. 4th, at 196–197. 

I am skeptical of the Fourth Circuit’s conclusion. The 

scope of Virginia Tech’s policy combined with how it is enforced suggests that the university is stifling students’ 
 

4 SPEECH FIRST, INC. v. SANDS 

THOMAS, J., dissenting 

speech, at least enough to provide Speech First standing to

pursue its First Amendment claim. First, the university’s

bias response policy appears limitless in scope. According

to Virginia Tech, “bias incidents” are “expressions against

a person or group” based on “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.” App. in No. 21–2061 (CA4), at 140. The university

provided examples of bias incidents, such as “words or actions that contradict the spirit of the Principles of Community” and “jokes that are demeaning to a particular group 

of people.” Ibid. Unsurprisingly, such an expansive policy 

has prompted students to report any and all perceived

slights. For example, one report was submitted when “a 

student in a University residence hall overheard several 

male students privately talking crap about the women who 

were playing in a snowball fight, calling them not ‘athletic.’” Speech First, Inc. v. Sands, 2021 WL 4315459, *10 

(WD Va., Sept. 22, 2021) (some internal quotation marks

and alteration omitted). Another person submitted a report

after someone “observed the words Saudi Arabia on the 

white board of [a] room”—despite acknowledging that “[i]t 

was unclear what the motive or complete message of the 

text originally was.” Decl. of C. Norris in No. 7:21–cv– 

00203 (WD Va., Apr. 12, 2021), ECF Doc. 4–2, p. 123. Other 

universities with bias response policies have received similar reports. See, e.g., App. in No. 21–2061 (CA4), at 254

(explaining that Ohio State University received a report for

“a chalk message stating ‘Build the Wall’”); id., at 252 

(highlighting that Texas Tech University received a report

for a student group tweeting “ ‘All lives don’t matter . . . 

#BlackLivesMatter’”). 

Second, the threshold for reporting is intentionally low. 

The policy permits anonymous reporting, meaning there is 

little to no social cost for accusing a classmate of bias. And, 
Cite as: 601 U. S. ____ (2024) 5 

THOMAS, J., dissenting 

students are encouraged to report other students for anything that even hints of “bias.” Indeed, the university ran

a campaign: “[I]f 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!” Id., at 200. The policy does not limit the ability to 

report to fellow students—anyone in the “university community” may report Virginia Tech students for bias incidents. Id., at 141. Reports may also cover incidents that

take place outside the university, including off campus or 

on social media. Thus, the policy follows Virginia Tech students wherever they go. From the moment a student enters 

the university until graduation, he is under the university’s 

surveillance. 

Third, a report can have weighty consequences. After a 

report is filed, it goes to the bias response team. The team 

includes university officials from the Office of the Dean of

Students, Office for Equity and Accessibility, Office for Inclusion and Diversity, Student Conduct, and the Virginia

Tech Police Department. The university officials may call

in the accused student—whom the policy pre-emptively labels as the “perpetrator”—for a meeting. The team may require “[i]nterventions of either an educational or restorative nature.” Id., at 372. The team even possesses the 

authority to refer a student for formal discipline or to the

police. And, of course, every report—regardless of whether 

the team determines bias exists—is recorded and kept on 

permanent file by the university. See ibid.; see also 69 

F. 4th, at 212 (Wilkinson, J., dissenting). Thus, even if the 

“perpetrator” is not technically required to accept the

team’s invitation to meet, it is hard to believe a college student could so easily ignore a university official’s request, especially when the report will be filed and “the referral 

power lurks in the background of the invitation.” Schlissel, 

939 F. 3d, at 765. 

Considering the scope and enforcement of the university’s 
 

6 SPEECH FIRST, INC. v. SANDS 

THOMAS, J., dissenting 

policy, it is at least a close question whether “students

[may] self-censor, fearing the consequences of a report to

[the bias response team] and thinking that speech is no

longer worth the trouble.” 69 F. 4th, at 204 (Wilkinson, J., 

dissenting). This seems particularly true regarding controversial issues where dissenting opinions might be deemed 

biased. 

This petition presents a high-stakes issue for our Nation’s

system of higher education. Until we resolve it, there will 

be a patchwork of First Amendment rights on college campuses: Students in part of the country may pursue challenges to their universities’ policies, while students in other 

parts have no recourse and are potentially pressured to

avoid controversial speech to escape their universities’ scrutiny and condemnation. We should grant certiorari to resolve this issue.