Supreme Court shrugs

Although the Supreme Court is frequently accused of improper “activism,” it is often guilty of passive dereliction of duty. It was earlier this month, when it refused to correct the U.S. Court of Appeals for the 4th Circuit’s lackadaisical tolerance of the culture of enforced conformity on campuses.

Virginia Tech’s “Bias Intervention and Response Team” policy designated teams composed of school officials to scurry about in response to reports of unacceptable ideas. The policy encouraged students to report—anonymously online, if they preferred—anything that “feels like” bias. The university defined bias broadly as “expressions”—students’ conversations, posters, voice mails, emails, texts, jokes— seen or heard (or overheard, or heard about), on campus or off.

Bias could be against a “person or group” because of “age, color, disability, gender (including pregnancy), gender identity, gender expression, genetic information, national origin, political affiliation, race, religion, sexual orientation, veteran status, or any other basis protected by law.”

“Genetic information”? Bias detectors cannot be too exhaustive.

The university warned students—as though they might not already be sufficiently nervous—to consider their “language, images, and other forms of communication to make sure all groups are fairly represented.” The bias-sniffing bureaucracy’s apparent assumption was that students should maintain a mental inventory of all possible forms of communication, every conceivable “group,” and what constitutes “representation” and what representation is “fair.”

This suffocatingly comprehensive policy provoked Speech First, a national organization opposing threats against free speech on campuses. It estimates that more than 450 schools have bias-response speech-policing regimes.

After a district court refused Speech First’s request to enjoin Virginia Tech’s practices, the organization appealed last year to the 4th Circuit, which allowed Virginia Tech’s severe regulation of speech to continue. The 4th Circuit majority’s reasoning was, however, shredded by Judge J. Harvie Wilkinson’s dissent.

He correctly insisted that Virginia Tech’s policy had “incipient inquisitional overtones” and turned the campus into “a surveillance state” where the First Amendment existed “at the sufferance of a bureaucracy.” His complacent colleagues said there was no “direct” evidence of “objectively” chilled speech. (Well, yes: Self-censorship is silent; suppressed thoughts are undetectable.)

The name “Bias Intervention and Response Team” radiates prejudgment by the university, which preserves a file of all complaints. And the blandly named Informational Activities Policy forbade distributing fliers or collecting signatures without the school administration’s prior approval.

Recently, the supposedly activist Supreme Court passively refused to hear Speech First’s appeal against the 4th Circuit’s passivity. Justice Clarence Thomas, joined by Justice Samuel A. Alito Jr., vigorously dissented, saying that Virginia Tech’s regulating of speech “appears limitless in scope”: “From the moment a student enters the university until graduation, he is under the university’s surveillance.” On campus and off.

Citing Wilkinson’s warning that wary students will decide that expressing their thoughts is not worth the potential trouble, Thomas warned that until the court clearly speaks about First Amendment rights on all campuses, there will be a national “patchwork” of rights. Students in regions covered by different circuit courts will be able to challenge oppressive school administrations. Students in less fortunate regions can still be pressured to avoid controversial speech in order, Thomas wrote, to “escape their universities’ scrutiny and condemnation.”

UCLA law professor Eugene Volokh says that nowadays “censorship envy” generates reciprocal speech suppressions: One ban (e.g., on speech celebrating Hamas’ atrocities) causes people who disagree with it to assert an entitlement to a reciprocal ban (e.g., on speech defending Israel’s countermeasures). Virginia Tech evidently suffers from “Stasi envy,” a desire to emulate East Germany’s surveillance-and-suppression apparatus that depended on a culture of anonymous informers.

After emphatically asserting the constitutionality of its speech-control apparatus, Virginia Tech suddenly modified it, clearly hoping that the Supreme Court would do what it did: It declared Speech First’s challenge moot, meaning no longer a live controversy. Thomas, however, noted: “Other universities have attempted a similar maneuver”—what one circuit court dryly called “a sudden change of heart, during litigation,” about their speech codes, to claim mootness. But, Thomas noted, two circuit courts “have found that these policy changes did not moot Speech First’s challenges.”

The Supreme Court, which can produce clarity when the circuits produce confusion, is, critics charge, too “activist.” Hardly.