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` Cite as: 604 U. S. ____ (2025)
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` THOMAS, J., dissenting
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`
`SUPREME COURT OF THE UNITED STATES
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` SPEECH FIRST, INC. v. PAMELA WHITTEN, ET AL.
`ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
`
`STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
`No. 24–361. Decided March 3, 2025
`
`The petition for a writ of certiorari is denied. JUSTICE
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`ALITO would grant the petition for a writ of certiorari.
`JUSTICE THOMAS, dissenting from the denial of certiorari.
`
`More than 450 of our Nation’s colleges and universities
`have “bias response teams.” These teams “encourag[e] stu-
`dents to report one another for expressions of ‘bias,’” and
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`then review and act upon reports. Speech First, Inc. v.
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`Sands, 601 U. S. ___, ___–___ (2024) (THOMAS, J., dissent-
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`ing) (slip op., at 1–2). In reviewing First Amendment chal-
`lenges to bias response teams, the Courts of Appeals have
`split as to whether they “objectively chill” student speech
`for purposes of Article III standing. I would grant certiorari
`to resolve that important split.
`I
`
`Indiana University (IU) operates a bias response team
`that is emblematic of the genre. IU’s team has advertised
`on its websites and on social media that students should
`report “‘bias incidents’” to the school. 2024 WL 3964864,
`
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`*1 (SD Ind., Aug. 28, 2024). Students can file such reports
`by anonymously completing an online form, emailing or
`calling a school administrator, or using an IU-run cellphone
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`application.
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`IU loosely defines the term “bias incidents” to “include
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`‘any conduct, speech, or expression, motivated in whole or
`in part by bias or prejudice meant to intimidate, demean,
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`mock, degrade, marginalize, or threaten individuals or
`groups based on that individual or group’s actual or per-
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` SPEECH FIRST, INC. v. WHITTEN
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` THOMAS, J., dissenting
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`ceived identities.’” Ibid. “Unsurprisingly, such an expan-
`sive policy has prompted students to report any and all per-
`ceived slights.” Sands, 601 U. S., at ___ (THOMAS, J., dis-
`
`senting) (slip op., at 4). For example, one complainant (who
`was not Asian) objected to comments expressing dislike for
`“‘China’” or “‘Chinese things’” made in the presence of two
`
`Asian students, while another reported a Facebook post fea-
`turing a picture of a sticker reading “‘Diversity Divides Na-
`tions.’” Record in No. 1:24–cv–898 (SD Ind.), Doc. 9–30,
`p. 3.
`When a student files a report, IU’s team reviews the sub-
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`mission, and has a variety of options at its disposal. For
`example, it may invite a student reported for an allegedly
`offensive comment to attend a meeting to discuss his behav-
`ior, or it may refer the impacted student to support services.
`
`And, while the bias response team cannot itself discipline
`students or “[c]onduct formal investigations,” it does assess
`whether there have been “potential violations of university
`policy and/or criminal law.” 2024 WL 3964864, *1 (internal
`quotation marks omitted). If a potential violation exists,
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`then the team can refer the matter to other campus offices
`with disciplinary power. The team also logs all reports in a
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`database, which it tracks for trends.
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`Speech First, a national membership organization that
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`“seeks to protect free speech rights on college campuses,”
`sued to enjoin IU from enforcing this “bias incidents” policy.
`
`Id., at *1–*2. Speech First’s members include five IU stu-
`dents who hold political “views that are unpopular . . . on
`
`campus,” including on issues such as “gender identity, im-
`migration, affirmative action, and the Israel-Palestine con-
`flict.” Id., at *2 (internal quotation marks omitted). But,
`
`
`the students self-censor their discussion of these views out
`of fear that “others will likely report [them] to University
`
`officials for committing a bias incident.” Ibid. (internal quo-
`tation marks omitted). This petition arises from Speech
`
`First’s unsuccessful motion to preliminarily enjoin IU from
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`3
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` Cite as: 604 U. S. ____ (2025)
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` THOMAS, J., dissenting
`
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`“‘enforcing [its bias-incident] policies during th[e] litiga-
`
`tion.’” Ibid.
`
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`As the parties recognized below, Speech First’s motion
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`was doomed under binding Circuit precedent. The Seventh
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`Circuit had previously dismissed a similar Speech First suit
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`against the University of Illinois at Urbana-Champaign for
`lack of Article III standing. See Speech First, Inc. v. Killeen,
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`968 F. 3d 628 (2020). In Killeen, the court held that Speech
`First had failed to satisfy either of two avenues for estab-
`lishing standing: It had neither “demonstrated that [Illi-
`
`nois’s bias response] policies pose a credible threat of en-
`forcement to any student” nor shown that “any student has
`faced an objectively reasonable chilling effect on his or her
`speech.” Id., at 639. The Seventh Circuit pointed to fea-
`tures of the Illinois program that limited its reach: Among
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`other things, meetings with the bias response team were
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`technically optional, and the team could not itself sanction
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`students.
`Id., at 639–644. Accordingly, it concluded,
`Speech First lacked an injury-in-fact sufficient to confer Ar-
`ticle III standing. Id., at 643–644.
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`The District Court agreed that Killeen was controlling
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`and denied the motion for a preliminary injunction. Given
`the IU program’s similar design, the District Court ex-
`plained, “Killeen cannot be meaningfully distinguished.”
`2024 WL 3964864, *3. The Seventh Circuit summarily af-
`firmed. 2024 WL 4363740, *1 (Sept. 5, 2024). Speech First
`then sought certiorari.
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`II
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`This case presents an opportunity to resolve an important
`Circuit split. Three Circuits, when evaluating similar facts,
`have rejected the Seventh Circuit’s view and found that
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`bias response policies “objectively chill” student speech.
`Speech First, Inc. v. Cartwright, 32 F. 4th 1110, 1122–1124
`
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`(CA11 2022); Speech First, Inc. v. Fenves, 979 F. 3d 319,
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`333, 338 (CA5 2020); Speech First, Inc. v. Schlissel, 939
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`4
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` SPEECH FIRST, INC. v. WHITTEN
`
` THOMAS, J., dissenting
`
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`F. 3d 756, 765 (CA6 2019). If this case had proceeded in
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`those Circuits, then Speech First likely would have been
`able to establish Article III standing. For example, the
`Sixth Circuit has recognized that a bias response team’s
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`“ability to make referrals . . . is a real consequence that ob-
`jectively chills speech,” and that this “lurk[ing]” referral
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`power causes even optional meeting invitations to “carry an
`implicit threat of consequence should a student decline the
`invitation.” Ibid. It makes no difference, on the Sixth Cir-
`cuit’s view, if the bias response team itself “lacks any formal
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`disciplinary power.” Ibid.
`
`Previously, the Fourth Circuit joined in the Seventh Cir-
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`cuit’s contrary position. Speech First, Inc. v. Sands, 69
`F. 4th 184, 193–197 (2023). But, based on a mid-litigation
`change in university policy, this Court granted the Sands
`
`
`petition, vacated the judgment below, and remanded with
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`instructions for the Fourth Circuit to dismiss the suit as
`moot. See 601 U. S., at ___ (slip op., at 1) (citing United
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`States v. Munsingwear, Inc., 340 U. S. 36 (1950)). The Sev-
`enth Circuit therefore stands alone.
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`I would grant Speech First’s petition and resolve the
`split. As this Court implicitly recognized when it chose to
`intervene in Sands, the split poses an important First
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`Amendment question. I continue to believe that we should
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`clarify the scope of a student’s right to challenge university
`policies that “potentially pressur[e him] to avoid controver-
`sial speech.” Sands, 601 U. S., at ___ (THOMAS, J., dissent-
`ing) (slip op., at 6).
`The Seventh Circuit’s approach is also very likely wrong.
`
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`It is well settled that plaintiffs may establish standing
`based on “the deterrent, or ‘chilling,’ effect of governmental
`regulations that fall short of a direct prohibition against the
`exercise of First Amendment rights.” Laird v. Tatum, 408
`
`U. S. 1, 11 (1972). And, in assessing whether an “objective
`chill” exists in a particular case, see Clapper v. Amnesty
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`Int’l USA, 568 U. S. 398, 418 (2013), courts must “look
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`5
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`Cite as: 604 U. S. ____ (2025)
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` THOMAS, J., dissenting
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`through forms to the substance” of the government’s “infor-
`mal sanctions,” Bantam Books, Inc. v. Sullivan, 372 U. S.
`58, 67 (1963). The Seventh Circuit’s emphasis on the for-
`mal limits of a bias response team’s power seems hard to
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`square with this Court’s framework. See Killeen, 968 F. 3d,
`at 640–643.
`
`Common features of bias response policies suggest that
`they may cause “‘students [to] self-censor, fearing the con-
`sequences of a report to [the bias response team] and think-
`ing that speech is no longer worth the trouble.’” Sands, 601
`U. S., at ___ (THOMAS, J., dissenting) (slip op., at 6) (quoting
`
`Sands, 69 F. 4th, at 204 (Wilkinson, J., dissenting)). At IU
`as elsewhere, the bias response program combines a defini-
`tion of bias that “appears limitless in scope” with a “thresh-
`old for reporting [that] is intentionally low.” Sands, 601
`U. S., at ___ (THOMAS, J., dissenting) (slip op., at 4). Com-
`
`pounding the problem, the option of anonymous reporting
`makes filing a report socially costless. Ibid. And, the threat
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`that the bias response team may refer a report to other uni-
`versity officers for further action is a “weighty conse-
`quenc[e]” that “‘lurks in the background.’” Id., at ___ (slip
`
`op., at 5) (quoting Schlissel, 939 F. 3d, at 765).
`
`Finally, this case does not present any complicating fea-
`tures that would hamper review. Because IU’s bias re-
`sponse team remains fully in place, this case does not raise
`the mootness question that led the Court to avoid granting
`plenary review in Sands. See Indiana University, Bias In-
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`cident Reporting (Feb. 28, 2025), https://reportincident.iu.
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`edu/one-page/index.html. There is no reason for this Court
`to deny certiorari.*
`——————
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`*I continue to believe that a university’s mid-litigation alteration of a
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` bias response policy does not generally moot a challenge to that policy
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` and that we should have resolved the standing question in Sands. See
` 601 U. S., at ___, n. 2 (THOMAS, J., dissenting) (slip op., at 2, n. 2). I also
`
`continue to believe that, in an appropriate case, this Court should revisit
`whether “associational standing can be squared with Article III’s” limits.
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`6
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`SPEECH FIRST, INC. v. WHITTEN
`
` THOMAS, J., dissenting
`
`*
`*
`*
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`Given the number of schools with bias response teams,
`this Court eventually will need to resolve the split over a
`student’s right to challenge such programs. The Court’s re-
`fusal to intervene now leaves students subject to a “patch-
`work of First Amendment rights,” with a student’s ability
`to challenge his university’s bias response policies varying
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`depending on accidents of geography. Sands, 601 U. S., at
`___ (THOMAS, J., dissenting) (slip op., at 6). Because one of
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`our “primary functions is to resolve ‘important matter[s]’ on
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`which the courts of appeals are ‘in conflict,’” we should not
`let this confusion persist. Gee v. Planned Parenthood of
`Gulf Coast, Inc., 586 U. S. 1057 (2018) (THOMAS, J., dissent-
`ing from denial of certiorari) (quoting this Court’s Rule
`
`10(a)). I respectfully dissent.
`
`
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`
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`——————
`
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`FDA v. Alliance for Hippocratic Medicine, 602 U. S. 367, 405 (2024)
`(THOMAS, J., concurring). But, under our precedents, an association such
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`as Speech First can establish standing to sue on behalf of its members.
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