Virginia Tech’s bias response and literature distribution policies have “somehow managed to offend virtually every cardinal principle of First Amendment law,” a federal judge wrote Wednesday in his dissent to a decision allowing them to continue.
The Fourth Circuit Court of Appeals ruled 2-1 Wednesday to uphold the university’s bias-related incidents policy, which enables students to report each other for everything from “jokes that are demeaning to a particular group of people” to “hosting a culturally themed party,” along with a policy requiring students to obtain permission before distributing handouts. In his dissent, Circuit Court Judge J. Harvie Wilkinson III, a Reagan appointee, said the policy “establishes a regime of comprehensive surveillance,” likening it to a “Ministry of Truth.”
“How did it ever come to this—that such a fine and distinguished university would institute a policy with such incipient inquisitional overtones, one that turns its campus into a surveillance state?” Wilkinson wrote. “The First Amendment guarantees to everyone not just passive access to but active participation in the marketplace of ideas. Today, the majority breaks that promise to a segment of society who needs it most—college students.”
Addressing the university’s literature policy, Wilkonson appeals to the Founders.
“Imagine Samuel Adams or Thomas Paine beseeching the state at some table for permission to pamphleteer,” he wrote. “They would hardly abide such a prior restraint.”
Speech First, which initially filed the lawsuit in 2021, appealed the case to the Fourth Circuit after a lower court judge found it had not shown the policies “objectively chill speech,” denying their request for a preliminary injunction.
Senior Judge Diana Gribbon Motz, a Clinton appointee who wrote the majority opinion, which Obama appointee Judge Albert Diaz joined, noted that the university’s bias-response policy does not mandate compliance and is only able to “extend an invitation for a voluntary conversation.”
“The dissent’s misguided journey produces a dramatic read, but it comes nowhere close to offering a basis for upending the district court’s careful exercise of its discretion,” Motz wrote.
Speech First and Virginia Tech did not immediately respond to requests for comment.
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