`
`
`
`
`
`Certiorari granted by Supreme Court, March 4, 2024
`Vacated and remanded by Supreme Court, March 4, 2024
`PUBLISHED
`
`
`UNITED STATES COURT OF APPEALS
`FOR THE FOURTH CIRCUIT
`
`
`No. 21-2061
`
`
`SPEECH FIRST, INC.,
`
` Plaintiff – Appellant,
`
` v.
`
`TIMOTHY SANDS, in his individual capacity and official capacity as President of
`Virginia Polytechnic Institute and State University,
`
` Defendant – Appellee.
`
`------------------------------
`
`SOUTHEASTERN LEGAL FOUNDATION; LIBERTY JUSTICE CENTER;
`CATO INSTITUTE; AMERICAN COUNCIL OF TRUSTEES AND ALUMNI;
`FOUNDATION FOR INDIVIDUAL RIGHTS IN EDUCATION; ALLIANCE
`DEFENDING FREEDOM,
`
` Amici Supporting Appellant.
`
`
`
`Appeal from the United States District Court for the Western District of Virginia, at
`Roanoke. Michael F. Urbanski, Chief District Judge. (7:21-cv-00203-MFU)
`
`
`
`
`Argued: October 25, 2022
`
`
`Before WILKINSON and DIAZ, Circuit Judges, and MOTZ, Senior Circuit Judge.
`
`
`Affirmed by published opinion. Senior Judge Motz wrote the opinion, in which Judge Diaz
`joined. Judge Wilkinson wrote a dissenting opinion.
`
`
`
`
`
`Decided: May 31, 2023
`
`
`

`

`
`
`
`ARGUED: James Hasson, CONSOVOY MCCARTHY PLLC, Arlington, Virginia, for
`Appellant. William H. Hurd, ECKERT SEAMANS CHERIN & MELLOTT, LLC,
`Richmond, Virginia, for Appellee. ON BRIEF: J. Michael Connolly, Cameron T. Norris,
`CONSOVOY MCCARTHY PLLC, Arlington, Virginia, for Appellant. Matthew B.
`Kirsner, Richmond, Virginia, Michael McAuliffe Miller, Renee Mattei Myers, Harrisburg,
`Pennsylvania, Jessica A. Glajch, ECKERT SEAMANS CHERIN & MELLOTT, LLC,
`Washington, D.C., for Appellee. Celia Howard O’Leary, Kimberly S. Hermann,
`SOUTHEASTERN LEGAL FOUNDATION, Roswell, Georgia, for Amicus Southeastern
`Legal Foundation. Ilya Shapiro, Thomas A. Berry, CATO INSTITUTE, Washington,
`D.C.; Reilly Stephens, Daniel Suhr, Jeffrey Jennings, LIBERTY JUSTICE CENTER,
`Chicago, Illinois, for Amici Liberty Justice Center, Cato Institute, and American Council
`of Trustees and Alumni. Darpana M. Sheth, Ronald London, Jeffrey D. Zeman,
`FOUNDATION FOR
`INDIVIDUAL RIGHTS
`IN EDUCATION, Philadelphia,
`Pennsylvania, for Amicus Foundation for Individual Rights in Education. Gordon D.
`Todd, Mackenzie J. Siebert, Robert M. Smith, SIDLEY AUSTIN LLP, Washington, D.C.;
`John J. Bursch, Cody S. Barnett, ALLIANCE DEFENDING FREEDOM, Washington,
`D.C., for Amicus Alliance Defending Freedom.
`
`
`
`
`
`
`
`2
`
`

`

`DIANA GRIBBON MOTZ, Senior Circuit Judge:
`
`Speech First, Inc., which identifies itself as a national organization committed to
`
`protecting the rights of college students, initiated this action against Timothy Sands, the
`
`President of the Virginia Polytechnic Institute and State University (Virginia Tech or the
`
`University). Speech First asserts that two Virginia Tech policies — the Bias Intervention
`
`and Response Team Policy (the Bias Policy) and the Informational Activities Policy —
`
`violate the First Amendment rights of its student members who attend Virginia Tech. Just
`
`four days after filing suit, Speech First asked the district court to preliminarily enjoin both
`
`policies. In a comprehensive, 53-page opinion, based on numerous findings of fact, the
`
`court refused to do so. The district court held that Speech First (1) lacked standing to
`
`challenge the Bias Policy because its members had suffered no injury in fact, and (2) failed
`
`to demonstrate a likelihood of success on the merits as to the Informational Activities
`
`Policy because the record was, at that time, inadequate as to that policy. Speech First now
`
`appeals. For the reasons that follow, we affirm.
`
`I.
`
`The district court’s express findings, and uncontradicted record evidence, establish
`
`the facts recounted here. Speech First does not challenge any of these facts.
`
`The Bias Policy defines bias incidents as “expressions against a person or group
`
`because of the person’s or group’s 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.” Speech First, Inc. v. Sands, No. 21-00203, 2021 WL 4315459, at *8 (W.D. Va. Sept.
`3
`
`
`
`

`

`22, 2021). Virginia Tech concluded that such incidents are detrimental to the University
`
`community and accordingly established a Bias Policy that allows members of the
`
`University community to report incidents of bias that occur at Virginia Tech.
`
`Complaining persons may choose to identify themselves by name, or they can file
`
`a report anonymously. Id. at *9. To make students feel comfortable reporting bias
`
`incidents, Virginia Tech has publicized the Bias Policy through a “See something? Say
`
`something!” campaign. The University accepts bias reports filed through various online
`
`platforms.
`
`Once submitted, all reported bias incidents go to a panel of university administrators
`
`known as the Bias Intervention and Response Team (the BIRT). Id. at *8. The BIRT
`
`includes representatives from the Fraternity and Sorority Life Office, the Services for
`
`Students with Disabilities Office, the Virginia Tech Police Department, and the Housing
`
`and Residence Life Office. The district court expressly found that the “BIRT lacks any
`
`authority to discipline or otherwise punish students for anything.” Id. at *10. None of the
`
`BIRT’s interactions with students — whether a complaining student or a responding
`
`student — ever appear on a student’s academic transcript or disciplinary record.1 Rather,
`
`as Dean Hughes explained in his written declaration, all BIRT-related records and
`
`
`1 The BIRT is overseen by Virginia Tech’s Dean of Students Office. The Dean of
`Students, Dr. Byron Hughes, declared in writing that his office has “no role in student
`discipline,” but exists instead to “offer advising, care, and support to students.” It is the
`Student Conduct Office that “administers the Student Code of Conduct, which is ‘the
`exclusive process by which students are adjudicated to be in violation of University policy
`and sanctioned for any such violations.’” Sands, 2021 WL 4315459, at *9. Speech First
`does not seek to enjoin any portion of the Student Code of Conduct or the operations of the
`Student Conduct Office.
`
`
`
`4
`
`

`

`correspondence are kept separately within the Dean of Students Office’s case management
`
`system.
`
`The BIRT meets weekly and reviews any newly submitted bias incident reports. At
`
`the outset of its review, the BIRT considers whether each bias incident report involves First
`
`Amendment-protected speech. Some complaints are dismissed outright because they do.
`
`In fact, the district court identified only two occasions when the BIRT referred protected
`
`speech to the Student Conduct Office and, in both cases, the Student Conduct Office
`
`concluded that the speech was constitutionally protected and so did not sanction the
`
`accused students. Id.
`
`Virginia Tech believes that some complaints that do not violate the law or the
`
`Student Code of Conduct may nonetheless present an educational opportunity. In such
`
`cases, the BIRT sends a letter to both the complaining student and the responding student
`
`that invites them to take part in a voluntary conversation facilitated by an administrator in
`
`the Dean of Students Office.2 Attendance at these meetings is entirely voluntary; if a
`
`student ignores the message or refuses to meet with the Dean of Students Office, the district
`
`
`2 The BIRT also refers some “localized” bias incidents to non-punitive campus
`entities. For instance, “a complaint alleging an incident of bias between two roommates
`may be referred to Housing and Residence Life to address.” The BIRT takes a different
`approach to incidents involving speech that independently may violate the law or the
`Student Code of Conduct. The record reflects that the BIRT refers complaints “alleging
`criminal activity . . . to the Virginia Tech Police Department” and complaints “describing
`an incident that may violate the Student Code . . . to the Student Conduct Office.” But the
`record also demonstrates that the BIRT does not have any “special authority to refer cases.”
`Indeed, the district court found that any member of the university community (for example,
`students, faculty, or administrators) can report any incident directly to the Student Conduct
`Office or the Virginia Tech Police Department without ever involving the BIRT. See
`Sands, 2021 WL 4315459, at *12.
`
`
`
`5
`
`

`

`court found that “no further action is taken, and the student faces no consequences of any
`
`kind.” Id.
`
`The second policy Speech First seeks to enjoin, the Informational Activities Policy,
`
`provides:
`
`Informational activity is defined as the distribution of literature and/or
`petitioning for signatures where no fee is involved nor donations or
`contributions sought. Informational activities may be permitted if they are
`sponsored by a university-affiliated organization. Such activities require
`prior approval by the designated university scheduling office and are subject
`to university policies and the reasonable guidelines of the authorizing
`official.
`
`
`In simple terms, the Informational Activities Policy regulates leafletting and the solicitation
`
`of signatures on campus.
`
`The district court found that this policy requires students to make reservations with
`
`the Student Engagement and Campus Life Office (the Campus Life Office) to leaflet and
`
`solicit signatures at designated locations throughout campus. Id. at *22. The Campus Life
`
`Office awards such reservations for free, in the order they are received. Id. Students
`
`seeking to engage in informational activities must be “sponsored” by one of the university’s
`
`750+ registered student organizations (RSOs). A student is not required to belong to an
`
`RSO as a member to leaflet on campus. Virginia Tech Br. at 14 & n.8. The student must
`
`simply secure the sponsorship of any existing RSO. Id. “RSOs may sponsor informational
`
`activities unrelated to their official purpose.” Id. at 14 n.8. For instance, “[t]he Chess Club
`
`could sponsor leaflets criticizing the government’s immigration policies; the Cave Club
`
`could sponsor leaflets supporting those policies.” Id.
`
`
`
`6
`
`

`

`Speech First, however, is not an RSO at Virginia Tech. Its members do not want to
`
`become an RSO (or seek an existing RSO’s sponsorship) but “want to independently
`
`distribute literature about conservative ideas and collect signatures for petitions that
`
`support conservative causes.”3 Sands, 2021 WL 4315459, at *23. They assertedly refrain
`
`from doing so out of fear that they “will be punished for engaging in ‘informational
`
`activities’ without [prior approval and] the sponsorship of a ‘university-affiliated
`
`organization.’” Id.; Speech First Opening Br. at 13.
`
`As noted above, Speech First has not and does not challenge any of these facts. But
`
`Speech First asserts that these facts establish that the Bias Policy caused its members to
`
`“censor their speech” and that the Informational Activities Policy is an impermissible prior
`
`restraint and speaker-based restriction, and therefore both policies violate the First
`
`Amendment. Speech First Opening Br. at 11–13. For this reason, Speech First maintains
`
`that the district court abused its discretion in refusing to preliminarily enjoin both policies.
`
`II.
`
`We therefore must determine whether the court did, in fact, abuse its discretion in
`
`denying Speech First’s motion for a preliminary injunction. See Di Biase v. SPX Corp.,
`
`
`3 In the district court, Speech First submitted anonymous declarations so stating on
`behalf of three of its student members (identified as Students A, B, and C). Because none
`of those students still attend Virginia Tech, the University moved to dismiss this action as
`moot and Speech First moved to supplement the appellate record with affidavits from four
`additional students (identified as Students D, E, F, and G) who assert identical injuries and
`are currently enrolled at Virginia Tech. We denied the University’s motion to dismiss and
`granted Speech First’s motion to supplement. We thus consider the declarations of
`Students D–G as part of the record on appeal. See ECF No. 76; Fed. R. App. P. 10(e); Loc.
`R. 10(d).
`
`
`
`7
`
`

`

`872 F.3d 224, 229 (4th Cir. 2017). In making this determination, we examine the district
`
`court’s factual findings for clear error and consider its legal conclusions de novo. Id.; see
`
`also dmarcian, Inc. v. dmarcian Eur. BV, 60 F.4th 119, 138 (4th Cir. 2023). When a party
`
`moves for a preliminary injunction, as Speech First did, it invites the district court to act as
`
`the finder of fact on a limited record. See Fed. R. Civ. P. 52(a); Scotts Co. v. United Indus.
`
`Corp., 315 F.3d 264, 274 (4th Cir. 2002). The moving party also bears the burden of
`
`demonstrating that it is likely to succeed on the merits. Winter v. Nat. Res. Def. Council,
`
`Inc., 555 U.S. 7, 20 (2008).
`
`When reviewing the denial of a preliminary injunction, an appellate court must
`
`credit the district court’s factual findings unless clearly erroneous.4 Scotts Co., 315 F.3d
`
`at 274; see also dmarcian, Inc., 60 F.4th at 138. Such deference is appropriate because
`
`district courts enjoy a comparative “advantage in hearing and ‘weighing’ evidence.”
`
`United States v. Shea, 989 F.3d 271, 277 (4th Cir. 2021). Thus, unless, in denying a
`
`preliminary injunction request, the district court “rest[ed] its decision on a clearly
`
`erroneous finding of a material fact, or misapprehend[ed] the law with respect to
`
`underlying issues in litigation,” we defer to its judgment. Leaders of a Beautiful Struggle
`
`
`4 Of course, if instead the district court had granted a motion by Virginia Tech to
`dismiss Speech First’s complaint, we would have a very different obligation — namely,
`we would be bound to construe the complaint’s factual allegations most favorably to
`plaintiff Speech First. As Judge Quattlebaum recently explained in Menders v. Loudoun
`County School Board, 65 F.4th 157, 160 (4th Cir. 2023), “in reviewing an order granting a
`motion to dismiss, we accept the . . . facts from the amended complaint and the
`incorporated exhibits as true and draw all reasonable inferences from them in favor of the
`[plaintiffs].” See also Int’l Refugee Assistance Project v. Trump, 961 F.3d 635, 648 (4th
`Cir. 2020) (noting that “important differences exist between the two standards”).
`8
`
`
`
`

`

`v. Balt. Police Dep’t, 2 F.4th 330, 339 (4th Cir. 2021) (en banc) (quoting In re Search
`
`Warrant Issued June 13, 2019, 942 F.3d 159, 171 (4th Cir. 2019), as amended (Oct. 31,
`
`2019)).5
`
`
`
`The record before us shows that the district court took seriously its factfinding
`
`responsibility. The court considered hundreds of pages of exhibits, sworn declarations
`
`from Virginia Tech students and administrators, various campus policies and internal
`
`campus documents, and screenshots taken from Virginia Tech’s website. Speech First
`
`itself submitted much of this evidence. The district court also provided the parties an
`
`opportunity for a lengthy oral argument on the preliminary injunction motion. After
`
`considering the totality of the record before it, the court issued a thorough opinion setting
`
`forth its factual findings and legal conclusions. We turn now to review of that opinion and
`
`the substance of Speech First’s challenge.
`
`
`
`
`
`
`
`
`
`
`
`
`5 As the dissent recognizes, Speech First mounts facial (rather than as-applied)
`challenges to the policies here. See Dis. Op. at 36; see also Speech First Opening Br. at
`17, 33. The dissent concedes, as it must, that “facial challenges are disfavored.” Dis. Op.
`at 36 (citing Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 450
`(2008)). Indeed, in United States v. Chappell, 691 F.3d 388, 392 (4th Cir. 2012)
`(Wilkinson, J.), this court rejected a First Amendment facial challenge, cautioning that
`such challenges rely on speculation, risk premature judicial interpretation of government
`actions, and run counter to principles of judicial restraint. So it is here.
`9
`
`
`
`

`

`III.
`
`Speech First initially contends that the district court erred in concluding that it lacks
`
`standing to challenge the Bias Policy on behalf of its student members.6 See Lujan v. Defs.
`
`of Wildlife, 504 U.S. 555, 560 (1992) (explaining that “standing is an essential and
`
`unchanging part of the case-or-controversy requirement of Article III”). Without standing
`
`to sue, Speech First cannot show that it is likely to succeed on the merits. “To establish
`
`standing, a plaintiff must show: (1) an injury in fact; (2) a sufficient causal connection
`
`between the injury and the conduct complained of; and (3) a likelihood that the injury will
`
`be redressed by a favorable decision.” Wikimedia Found. v. NSA, 857 F.3d 193, 207 (4th
`
`Cir. 2017). The district court held that Speech First’s members had suffered no injury in
`
`fact, and thus Speech First lacked standing, because the Bias Policy does not proscribe any
`
`constitutionally protected activity.7 Indeed, the court concluded the Bias Policy does not
`
`proscribe “anything at all.” Sands, 2021 WL 4315459, at *10.
`
`A.
`
`
`
`Speech First grounds its challenge in the First Amendment, which protects free
`
`speech and expression. See U.S. Const. amend. I (“Congress shall make no
`
`
`6 As a membership organization, Speech First has standing as a representative of its
`members if its members would have standing to sue in their own right. See S. Walk at
`Broadlands Homeowner’s Ass’n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175,
`183–84 (4th Cir. 2013).
`
` 7
`
` We recently explained in another school speech case that “[t]he limitation of
`federal court jurisdiction to actual cases or controversies is a bedrock principle fundamental
`to our judiciary’s role in our system of government . . . [and] ‘[o]ne element of the case-
`or-controversy requirement is that [plaintiffs] . . . must establish that they have standing to
`sue.’” Menders, 65 F.4th at 162 (quoting Raines v. Byrd, 521 U.S. 811, 818 (1997)).
`10
`
`
`
`

`

`law . . . abridging the freedom of speech . . . .”). It “prohibits the state from interfering
`
`with the expression of unpopular, indeed offensive, views.” Nat’l Socialist White People’s
`
`Party v. Ringers, 473 F.2d 1010, 1016 (4th Cir. 1973) (en banc). And of course, “state
`
`colleges and universities are not enclaves immune from the sweep of the First
`
`Amendment.” Healy v. James, 408 U.S. 169, 180 (1972).
`
`
`
`Direct prohibitions of speech and expression naturally invite constitutional scrutiny.
`
`For instance, as we explained in Benham v. City of Charlotte, 635 F.3d 129, 135 (4th Cir.
`
`2011), “[a]t the most basic level, the denial of a permit to engage in expressive activity
`
`altogether constitutes a First Amendment injury.” Here, Speech First does not contend that
`
`the Bias Policy established an outright ban on speech. But speech need not be banned
`
`outright to trigger First Amendment protections. Individuals suffer a concrete injury even
`
`when the state has simply “chilled” the right to engage in free speech and expression. See,
`
`e.g., Cooksey v. Futrell, 721 F.3d 226, 235 (4th Cir. 2013). That is what Speech First
`
`maintains the University did here in instituting the Bias Policy.
`
`A First Amendment claim premised on chilling speech, like this one, is cognizable
`
`only when the asserted chill “would likely deter ‘a person of ordinary firmness’ from the
`
`exercise of First Amendment rights.” Constantine v. Rectors & Visitors of George Mason
`
`Univ., 411 F.3d 474, 500 (4th Cir. 2005); see also Laird v. Tatum, 408 U.S. 1, 13–14
`
`(1972). “Allegations of a subjective ‘chill’ are not an adequate substitute for a claim of
`
`specific present objective harm or a threat of specific future harm.” Laird, 408 U.S. at 13–
`
`14. Such allegations, standing alone, cannot demonstrate an injury in fact. See Benham,
`
`635 F.3d at 135. Thus, Speech First has standing to lodge this challenge to the Bias Policy
`
`
`
`11
`
`

`

`only if its members’ asserted self-censorship is objectively reasonable. See id.; Laird, 408
`
`U.S. at 13–14.
`
`
`
`Speech First advances two interrelated arguments as to why its members acted in an
`
`objectively reasonable manner in assertedly self-censoring. First, it maintains that the
`
`University has used implicit threats to deter unfavored speech. Speech First Opening Br.
`
`at 24. Second, Speech First argues that Virginia Tech has imposed a burdensome
`
`administrative regime that would cause an objectively reasonable student to refrain from
`
`engaging in politically charged speech. Id. We consider each argument in turn.
`
`1.
`
`As to its initial contention, Speech First asserts that “the entire point of the BIRT is
`
`to implicitly threaten students with discipline if they say something ‘biased.’” Id. The
`
`district court rejected this contention, expressly finding that the “BIRT lacks any authority
`
`to discipline or otherwise punish students for anything.” Sands, 2021 WL 4315459, at *10.
`
`
`
`We recently explained why this factual finding is critical in considering another
`
`student speech challenge to a university policy. See Abbott v. Pastides, 900 F.3d 160, 176
`
`(4th Cir. 2018). There, we pointed out that a “credible threat of enforcement” is the sine
`
`qua non of a speech chilling claim. Id. Accordingly, a putative plaintiff suffers no
`
`cognizable injury if she lacks an “objectively good reason for refraining from speaking and
`
`‘self-censoring’ instead.” Id.
`
`The district court found that the BIRT’s interaction with students is limited to
`
`offering an optional “educational opportunity for better understanding protected speech
`
`and the role of tolerance in the campus community.” Sands, 2021 WL 4315459, at *8, *10.
`
`
`
`12
`
`

`

`The court further found that the Bias Policy does “not proscribe anything at all,” or require
`
`anything of anyone. Id. at *10. In fact, the Bias Policy espouses tolerance for competing
`
`views, assuring that “[a]ll community members,” including those accused of perpetrating
`
`bias, “will be treated with respect, consideration, concern, and care.” Id. at *9. Some bias
`
`incidents do not involve protected speech and “may be adjudicated through the student
`
`conduct process.” Id. But the district court found that Virginia Tech does not and cannot
`
`adjudicate matters involving protected speech. Id. at *9, *12.
`
`Speech First attempts to liken the Bias Policy to the coercive tactics found
`
`unconstitutional in Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963). There, the Court
`
`held that “informal sanctions,” including “the threat of invoking legal sanctions and other
`
`means of coercion, persuasion, and intimidation,” were sufficient to confer a First
`
`Amendment injury. Id. at 67, 71–72. In Bantam Books, a state entity known as the
`
`“Commission to Encourage Morality in Youth” sent to book and magazine publishers
`
`“notices, phrased virtually as orders,” urging them to stop publishing disfavored materials.
`
`Id. at 59–63, 68. Those notices included language thanking each publisher “for his
`
`‘cooperation’ with the Commission” and reminding each that the Commission was
`
`mandated “to recommend to the Attorney General prosecution of purveyors of obscenity.”
`
`Id. at 62. The Commission also circulated to local police departments lists of objectionable
`
`publications, and local police officers commonly paid personal visits to offending
`
`publishers “to learn what action [the publisher] had taken” in response to the Commission’s
`
`notice. Id. at 63. The Court held the Commission’s activities unconstitutional because
`
`their purpose and effect were to deter disfavored speech. Id. at 67, 71–72.
`
`
`
`13
`
`

`

`The BIRT shares little common ground with the Bantam Books Commission and
`
`the Commission’s attempt to suppress publications it deemed objectionable. The Bantam
`
`Books Commission, unlike the BIRT, wielded great coercive authority. The Commission
`
`sent police officers to pay personal visits to disfavored publishers. Id. at 63. And it issued
`
`written orders to those publishers it sought to threaten, reminding them that the
`
`Commission had an obligation to recommend criminal prosecution for “purveyors of
`
`obscenity.” Id. at 62. One publisher had received “at least 35 such notices at the time [the]
`
`suit was brought.”8 Id. at 61. And critically, the trial court in Bantam Books “found as a
`
`fact” that “compliance with the Commission’s directives was not voluntary.” Id. at 68.
`
`Here, the district court found as a fact that the BIRT does not mandate involuntary
`
`compliance or anything of the sort. Rather, the court found as a fact that “[a]ll that [the]
`
`BIRT has the authority to do is to ‘invite’ students to participate in a ‘voluntary
`
`conversation’ about the alleged bias or refer reports elsewhere.” Sands, 2021 WL 4315459,
`
`at *10. The record establishes that the BIRT does not even extend an invitation for a
`
`voluntary conversation in response to every complaint it receives. Rather, the BIRT often
`
`dismisses complaints because they involve constitutionally protected activity.
`
`
`8 Speech First seems to suggest that the University’s “See something? Say
`something!” posters serve the same purpose as the orders and circulated lists in Bantam
`Books. The comparison is unpersuasive. In its posters, the University does not threaten or
`forbid anything. Indeed, Virginia Tech’s posters, unlike the Bantam Books Commission’s
`threats, are directed not to those who utter constitutional speech but to those who may
`complain about it. Thus, the University promotes its bias reporting mechanism not to chill
`its students’ speech but instead to encourage civility. The University’s posters do not state,
`or even suggest, that disciplinary sanctions will be imposed on anyone because of their
`speech.
`
`
`
`14
`
`

`

`The district court expressly found that even when the BIRT does extend an
`
`invitation to meet, there is “no evidence that students feel obligated to come to these
`
`voluntary meetings” with the Dean of Students. Id. at *12. None of Speech First’s student
`
`members have offered any evidence that they (or their peers) feel pressured to attend the
`
`meetings.9 For these reasons, the district court found that the BIRT neither imposes
`
`discipline nor suggests in any way that it can impose discipline. Thus, Speech First’s
`
`reliance on Bantam Books fails.10
`
`Speech First further argues that Virginia Tech students are threatened by the BIRT’s
`
`special “referral power.” But in truth, the BIRT’s ability to refer matters is neither special
`
`nor much of a power. As to it being “special,” the district court found that the “BIRT may
`
`report a Student Code violation just like any other member of the Virginia Tech
`
`
`9 The dissent conceals this lack of evidence with fiery rhetoric and more than a
`dozen hypothetical questions. Neither provide a sound basis for rejecting the district
`court’s explicit findings of fact. Indeed, our friend in dissent has explained that the
`disfavored nature of facial challenges (like the one at hand) cannot be overcome by
`“hypotheticals . . . conjure[d] up” for support. See Chappell, 691 F.3d at 393.
`
`
`10 The remaining cases on which Speech First relies offer it even less support. The
`Second Circuit’s opinions in Levin v. Harleston, 966 F.2d 85 (2d Cir. 1992) and Okwedy
`v. Molinari, 333 F.3d 339 (2d Cir. 2003), concerned high-ranking government officials
`who threatened to use their expansive authority to punish the speakers. By contrast, here
`the district court found that the BIRT is administered by a university department — the
`Dean of Students Office — that, unlike the government officials in those cases or even the
`Student Conduct Office at Virginia Tech, has no enforcement authority and “no role in
`student discipline.” Sands, 2021 WL 4315459, at *9. For this reason, the district court
`found that the bias incident reporting process is entirely separate from a student’s academic
`and disciplinary records. See id. at *10. The asserted threat here is also distinct from the
`one presented in Backpage.com, LLC v. Dart, 807 F.3d 229, 231 (7th Cir. 2015). Unlike
`the local sheriff in that case, Speech First does not contend that the BIRT accuses anyone
`of facilitating odious criminal acts, or that it sends students anything like “cease and desist”
`letters printed on official law enforcement letterhead.
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`community.” Id. (emphasis added). As to the “power” of the BIRT referral, unlike any
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`other member of the university community, who could report any conduct, the Bias Policy
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`permits the BIRT only to refer conduct that is not constitutionally protected and that
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`independently may violate the Student Code of Conduct or the law. In short, because the
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`Bias Policy has specifically disclaimed the ability to adjudicate matters involving protected
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`speech, the policy is far from a “thinly veiled threat[] to institute criminal [or other
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`disciplinary] proceedings,” like that in Bantam Books. 372 U.S. at 68.
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`Speech First also did not offer any evidence that BIRT referrals occur with any
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`frequency, or that they are more likely to result in discipline than referrals from other
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`members of the University community. In fact, the only example of a BIRT referral to
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`which Speech First points ended with the referred student receiving no sanctions. Compare
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`Speech First Opening Br. at 26 with Sands, 2021 WL 4315459, at *10. Moreover, when
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`the BIRT refers an incident to another University entity, that other entity also must
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`determine whether the respondent’s conduct is constitutionally protected. The district
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`court found that this process “shows that if one part of the university makes a mistake, the
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`university as a whole will ensure that protected speech remains protected.” Sands, 2021
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`WL 4315459, at *12.
`
`
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`In light of the above facts, the district court did not clearly err in finding that the
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`“BIRT lacks any authority to discipline or otherwise punish students for anything.” Id.
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`at *10. We recently held in Abbott that a plaintiff asserting First Amendment chill cannot
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`prevail unless it demonstrates that a challenged policy conveys a “credible threat of
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`enforcement.” 900 F.3d at 176. We must follow that holding here, and it requires rejection
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`of Speech First’s argument. Accordingly, as the district court found, Speech First’s student
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`members have failed to allege that they have sustained an injury in fact.
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`2.
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`
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`We consider next Speech First’s alternative argument that Virginia Tech, through
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`the BIRT, has created an elaborate bureaucratic regime that burdens the exercise of free
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`speech. Speech First essentially maintains that the BIRT process itself is a form of
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`punishment.
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`Again guided by our recent decision in Abbott, we cannot agree. There, Ross
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`Abbott, a student at the University of South Carolina, received a university official’s
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`approval to host a “Free Speech Event” involving displays of offensive words and symbols,
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`evidently in an attempt to “draw attention to the various threats to free speech on [college]
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`campuses.” Id. at 164–65. Immediately thereafter, a different university official informed
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`Abbott that the university had received complaints about Abbott’s event and therefore
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`ordered Abbott to “arrange an appointment to fully discuss the charges as alleged.” Id.
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`at 165. Abbott was also told “not [to] contact the named complainant, or discuss the
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`complaints with any member of the University community.” Id. The university warned
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`him that “[i]f the matter could not be resolved otherwise,” the university would investigate
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`him formally. Id. Abbott, like Speech First, asserted that the university’s actions would
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`cause a reasonable student to self-censor. Id. at 169. Abbott mounted both an as-applied
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`challenge and a facial challenge; the discussion in Abbott of the latter is instructive here.
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`Speech First’s legal theory in support of its facial challenge to Virginia Tech’s Bias
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`Policy is largely the same as the theory advanced by Abbott to challenge the University of
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`
`
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`South Carolina’s policy. See id. at 178. Like Abbott, Speech First contends that the
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`challenged policy creates a process t