Speech First v. Whitten

On October 31, the Liberty Justice Center filed an amicus brief urging the U.S. Supreme Court to hear Speech First v. Whitten, a case regarding the threat that university “bias response teams” pose to students’ free speech.

Hundreds of American colleges and universities have enacted “bias incident” policies and employ “bias response teams”—that is, they empower an arm of the university to police students’ speech by monitoring campus, soliciting anonymous reports from classmates, and officially censuring students whose speech is deemed unacceptable. While proponents argue that these policies and teams are needed to make campuses safer and more inclusive, opponents argue that these measures violate the First Amendment, effectively silencing students’ speech and inquiry by threatening to punish anyone who says the wrong thing, whether intentionally or inadvertently.

In May 2024, Speech First—a nonprofit organization that aims to protect First Amendment rights on college campuses—filed Speech First v. Whitten to challenge Indiana University’s Bias Incidents Policy. A lower court dismissed the case in September.

Currently, lower courts are divided on whether bias response teams violate the First Amendment, with the Fifth, Sixth, and Eleventh Circuit Courts holding that such teams objectively chill students’ speech and the Seventh Circuit Court holding that they do not. Due to this split in judicial interpretation, the plaintiffs in Speech First v. Whitten have urged the U.S. Supreme Court to take up the case and issue a ruling to establish consistent precedent across the country.

The Liberty Justice Center’s amicus brief asks the U.S. Supreme Court to hear Speech First v. Whitten and overturn the lower courts’ dismissal of the lawsuit. The Liberty Justice Center’s brief argues that bias response teams and policies violate the First Amendment, both directly—by outright punishing students for protected speech—and indirectly—by creating a culture of distrust, hostility, and censorship that chills speech.

“The fundamental right to free speech is often most at risk where it is most needed—in academic contexts like schools and university campuses,” said Emily Rae, Senior Counsel at the Liberty Justice Center. “The Supreme Court should grant certiorari in this case so it can resolve the circuit split and affirm students’ First Amendment rights.”