Student Reputational Injury and the Speech First Cases

Is “fear to speak” a cognizable injury in fact under Article III of the U.S. Constitution? Modern standing doctrine provides only a murky answer. To bring suit, a plaintiff must show an injury in fact that is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.”¹ The Supreme Court has offered little guidance on how to analyze intangible injuries, like reputational harms, particularly in the context of alleged free-speech violations. Recent challenges to university speech restrictions highlight the continued difficulty of analyzing the cognizability of reputational harms for chilled-speech claims.

To illustrate this difficulty, consider three scenarios. In the first scenario, a public university student, Paul, threatens to report his classmate, Mary, to a university administrative body if she offers a dissenting opinion in class. This body will expel Mary if it finds that her class comment violated university speech codes, so Mary elects not to speak to avoid an investigation and potential expulsion, which would dramatically damage her reputation and future economic prospects. Although Mary’s injury is not physical, the threat of significant sanctions is both imminent and concrete.

In the second scenario, when Mary begins to speak in class, Paul interrupts and threatens to report her to the same university administrative body, but now, that body has no enforcement power. The body will investigate the incident, schedule a meeting with Mary to discuss the incident, and keep an administrative record of the incident. Wanting to avoid the possible reputational damage of being reported and meeting with an administrative official, Mary stops speaking at Paul’s warning. Here, Mary has suffered neither physical nor economic injury; her injury appears purely reputational, and it is unclear whether her injury is imminent or concrete.

Finally, a third, even harder scenario: during a lively class discussion, Mary considers raising her hand to offer her thoughts, but then she remembers that her university has an administrative body charged with preventing bias-related speech (the same as that described in the second scenario).² She knows that meeting with the body is voluntary, and she does not think her comment in class would evidence bias. But because the university encourages students to report incidents even if they are unsure whether they actually evidence bias, Mary decides not to speak to avoid the reputational harm of being reported. Unlike the second scenario, Mary has not even begun to speak; whether her injury is concrete or imminent is even more uncertain.

Currently challenging how courts analyze standing in the second and third scenarios is a recent slate of First Amendment lawsuits (the “Speech First Cases”). Speech First, Inc., a free-speech organization representing anonymous students, has brought several pre-enforcement challenges to university “bias response teams,” arguing that they objectively chill speech. Bias response teams (BRTs) are administrative bodies that provide a mechanism for students to report other students for “bias-motivated” speech or conduct.³ These types of speech regulations currently exist at approximately eighty-six percent of American universities.⁴ Universities vary in their definitions of bias-motivated speech, but it is generally defined as speech or conduct at least partially motivated by prejudice against or hostility toward a certain class of people (e.g., race or sex).⁵ Unlike harassment, bias has no concrete legal definition and does not by itself trigger criminal or Title IX protection.⁶ Methods of anti-bias enforcement, therefore, flow from the discretion of the university administrator.

Because bias is a broad, ambiguous term, turning on the perception of the listener, students may be uncertain what speech is protected and what speech should be reported. BRTs account for this ambiguity by encouraging students “to make a report” if they “hear or see something that feels like a bias incident, statement, or expression,” even if they are “unsure.”⁷ In other words, BRTs create a see-something, say-something regime.⁸ When BRTs receive reports of potential bias, their responses can range from sending educational resources to the reported student to imposing formal sanctions and investigations.⁹ Some maintain records of reported incidents¹⁰ and circulate an annual incident report to the public.¹¹ Some refer students to law enforcement or disciplinary bodies within the university.¹² Although BRTs promise not to impose sanctions for protected speech, they often investigate reports involving protected speech.¹³ A comprehensive review of BRTs revealed that administrators commonly take a punitive approach to dealing with reported students, even when their official mission is educational.¹⁴

BRTs have drawn commentary from sources across the ideological spectrum.¹⁵ Keith Whittington explained that “[i]n both concept and design, such efforts [by BRTs] to encourage students to anonymously initiate disciplinary proceedings for perceived acts of bias or to shelter themselves from disagreeable ideas are likely to subvert free and open inquiry and invite fears of political favoritism.”¹⁶ But some commentators view BRTs as necessary guardrails on the modern campus.¹⁷ Today’s political and social climate has caused increased hostility on campuses.¹⁸ Some protected speech might have little to no social value on campus and detract from ordinary-course learning.¹⁹ Accordingly, universities must balance the free exchange of ideas with the goals of education, including educating students about bias and civility.²⁰

Facing these competing concerns, many universities have viewed BRTs as a path to both ensuring free speech and preventing hostile learning environments, a dual mandate that has become more salient in light of student protests against the war in Gaza.²¹ But even universities are unsure how BRTs comport with the First Amendment,²² and some have discontinued these programs in response to Speech First’s lawsuits.²³ After all, First Amendment protections are sweeping. As the Supreme Court has long protected even the most distasteful speech,²⁴ public universities under the full force of the First Amendment face a difficult task in choosing what speech to protect and what to sanction (and how forcefully they may sanction it).

BRTs may attract policy disagreements, but can students challenge them on First Amendment grounds?²⁵ Circuits are split. Whether students have standing to bring facial, pre-enforcement challenges to BRTs turns on whether there is a “credible threat of enforcement” that objectively chills speech.²⁶ The Fourth and Seventh Circuits have held that BRTs do not objectively chill speech because they lack the power to punish or sanction.²⁷ The Fifth, Sixth, and Eleventh Circuits, however, have held that BRT reporting systems objectively chill speech regardless of formal punishment power.²⁸ Meanwhile, two members of the Supreme Court recently expressed interest in resolving this circuit split, which would have far-reaching consequences for university speech codes.²⁹

If BRTs do not have formal enforcement power, can plaintiff-students still claim that there is a “credible threat of enforcement” to satisfy the injury requirement for standing? I argue that courts must consider potential reputational harm in the credible threat analysis. BRTs cause reasonable students to self-censor due to fear of administrative involvement and university scorn, which could negatively impact faculty relationships and future job prospects.³⁰ By failing to adequately consider the role of reputational harm, courts miss a critical piece of the puzzle and unreasonably foreclose suit. Acknowledging the danger of judicial discretion in standing analysis,³¹ particularly for intangible harms implicating reputation and conscience, I demonstrate that longstanding common law supports recognizing the threat of reputational harm as justiciable in the context of BRTs.³²

No scholarship has provided a comprehensive account of the Speech First Cases and the intersecting legal issues involved. Commentary on this circuit split has generally focused on how universities can implement BRTs successfully without giving close doctrinal attention to reputational harm.³³ Further, there is limited scholarship critically analyzing the issue of standing in cases addressing university speech codes.³⁴ Finally, no scholarship has argued that the threat of reputational harm should be a major factor in the standing analysis.

This Comment fills this gap by analyzing the current split among lower courts in assessing BRTs and by proposing an alternative approach that better reflects the constitutional interests at stake. Part I traces the history of the injury-in-fact requirement in standing and the historical-analogues test for intangible injuries. Part II outlines how courts analyze standing for First Amendment pre-enforcement challenges. Part III surveys the current circuit split among the Speech First Cases. Part IV identifies several doctrinal lessons from the Speech First Cases. Part V argues that common law supports recognizing self-censorship resulting from threat of reputational harm as a cognizable injury. Finally, Part VI shows that longstanding Supreme Court jurisprudence on the First Amendment counsels against BRTs as a policy matter. This Comment ultimately concludes that the Supreme Court should resolve this circuit split.

1. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (internal quotation marks omitted). ↩︎
2. This scenario draws upon Judge J. Harvie Wilkinson’s hypothetical from Speech First, Inc. v. Sands, 69 F.4th 184, 203-04 (4th Cir. 2023) (Wilkinson, J., dissenting), vacated mem., 144 S. Ct. 675 (2024). ↩︎
3. In Speech First v. Sands, Virginia Tech students could submit complaints about bias incidents through an online “Bias Incident Reporting Form,” email, or Twitter. Bias incidents could occur in class, on an assignment, in person, in writing, on the Internet, via email or text, or via phone or voicemail. Brief of Appellant Speech First, Inc. at 6-8, Sands, 69 F.4th (No. 21-2061). ↩︎
4. Spotlight on Speech Codes 2023, Found. for Individual Rts. & Expression, https://www.thefire.org/research-learn/spotlight-speech-codes-2023 [https://perma.cc/LYD9-SKXF] (last visited Nov. 12, 2024). ↩︎
5. See, e.g., Speech First, Inc. v. Cartwright, 32 F.4th 1110, 1116 (11th Cir. 2022) (noting a defendant university’s definition of “bias-related incident[s]”). Some universities offer very little guidance on what constitutes bias, providing only checkboxes for types of bias or discrimination. See, e.g., Bias Incident Reporting Form, Penn Diversity, https://diversity.upenn.edu/diversity-at-penn/bias-motivated-incident-report [https://perma.cc/4M86-QQ3N] (last visited Oct. 23, 2024). ↩︎
6. See Sex-Based Harassment, U.S. Dep’t of Educ., https://www.ed.gov/laws-and-policy/civil-rights-laws/protecting-students/sex-based-harassment [https://perma.cc/8EFM-FNKZ] (last visited Nov. 16, 2024) (defining “sex-based harassment” for purposes of Title IX). The Foundation for Individual Rights and Expression, an organization concerned with protecting free-speech rights at American universities, distinguishes “harassment” from “offensive speech”; the former deserves “prompt, fair, and impartial discipline” by the university, while the latter should “be answered with more speech.” Found. for Individual Rts. & Expression, Bias Response Team Report 2017, at 4, 7, 9 (2017), https://www.thefire.org/sites/default/files/2022/09/Bias%20Response%20Team%20Report%202017.pdf [https://perma.cc/FXS2-25ZS]. ↩︎
7. Sands, 69 F.4th at 209 (Wilkinson, J., dissenting) (emphasis added) (internal quotation marks omitted). ↩︎
8. See If You See Something, Say Something, Dep’t of Homeland Sec., https://www.dhs.gov/see-something-say-something [https://perma.cc/QDQ4-JSZB] (using the same language to describe the United States terrorism prevention reporting system); see also Speech First, Inc. v. Sands, 144 S. Ct. 675, 677 (2024) (Thomas, J., dissenting) (noting the university’s “see something, say something” campaign (internal quotation marks omitted)). ↩︎
9. In each of the Speech First Cases, none of the BRTs challenged had power to formally punish or sanction students. See infra Part III. ↩︎
10. See, e.g., Sands, 69 F.4th at 203 (Wilkinson, J., dissenting) (noting that Virginia Tech’s BRT “keeps a file of all complaints”). Judge Wilkinson found this recordkeeping to be a means of intimidating reported students: “There is no point in keeping something on file if it will never be used for anything.” Id. at 212. But see Speech First, Inc. v. Killeen, 968 F.3d 628, 643 (7th Cir. 2020) (“BART interactions with students are private, not recorded in academic or disciplinary records, and not disclosed outside of OSCR without permission.” (internal quotation marks omitted)). ↩︎
11. Killeen, 968 F.3d at 643. ↩︎
12. Speech First, Inc. v. Cartwright, 32 F.4th 1110, 1117-18 (11th Cir. 2022). ↩︎
13. See, e.g., Sands, 69 F.4th at 208 (Wilkinson, J., dissenting) (detailing bias-incident reports for writing “Saudi Arabia” on a whiteboard outside a student’s dorm room and describing female students as unathletic (internal quotation marks omitted)). ↩︎
14. Ryan A. Miller, Tonia Guida, Stella Smith, S. Kiersten Ferguson & Elizabeth Medina, A Balancing Act: Whose Interests Do Bias Response Teams Serve?, 42 Rev. of Higher Educ. 313, 330 (2018) (“While [BRT] leaders most often espoused educational philosophies, the examples of work they shared often reinforced a punitive or criminal justice approach and/or informed an institution’s public relations efforts.”); see infra Section IV.B. ↩︎
15. [1] See, e.g., Jeffrey Aaron Snyder & Amna Khalid, The Rise of “Bias Response Teams” on Campus, New Republic (Mar. 30, 2016), https://newrepublic.com/article/132195/rise-bias-response-teams-campus [https://perma.cc/FWS2-QESL] (“[T]o institute a formal body that assesses the merits of bias incident complaints is profoundly misguided. They run counter to the basic conviction that we learn best through experimental trial-and-error: changing our minds voluntarily, not because we are told to. Nothing quite kills intellectual exploration like the fear of causing offense.”); Douglas Belkin, Stanford Faculty Say Anonymous Student Bias Reports Threaten Free Speech, Wall St. J. (Feb. 23, 2023, 10:17 AM), https://www.wsj.com/articles/stanford-faculty-moves-to-stop-students-from-reporting-bias-anonymously-cbac78ed [https://perma.cc/L7W4-2AP8] (“If you’re an 18-year-old freshman and you get contacted by an administrator and told you’ve been accused of some transgression, what are you going to do? . . . . They may not call that punitive but that can be very stressful.”). ↩︎
16. Keith E. Whittington, Free Speech and the Diverse University, 87 Fordham L. Rev. 2453, 2466 (2018). ↩︎
17. Defending BARTs, Inside Higher Ed (Sept. 11, 2016), https://www.insidehighered.com/news/2016/09/12/despite-recent-criticism-college-officials-say-bias-response-teams-fill-important [https://perma.cc/3KJK-NJ58] (“The real value of [BRTs] . . . is that incidents can be investigated and that one person is not making a judgment about possible outcomes . . . . In some cases, the most appropriate action may only be to check in and provide support to the student affected. The worst thing would be to abandon these processes and leave students with no avenue to report their experiences.”). ↩︎
18. See Jeremy Bauer-Wolf, Hate Incidents on Campus Still Rising, Inside Higher Ed (Feb. 24,
    2019), https://www.insidehighered.com/news/2019/02/25/hate-incidents-still-rise-college-campuses [https://perma.cc/2P74-PSJL]; see also Fed. Bureau of Investigation, Reported Hate Crime at Schools: 2018-2022, at 3-4, 14 (2024), https://www.justice.gov/hatecrimes/reported-hate-crimes-schools/dl?inline= [perma.cc/4ZFB-K5PU] (reporting a significant increase in hate crimes reported in postsecondary schools from 2018 to 2022). ↩︎
19. See Mari J. Matsuda, Public Response to Racist Speech: Considering the Victim’s Story, 87 Mich. L. Rev. 2320, 2357 (1989) (“Racist speech is best treated as a sui generis category, presenting an idea so historically untenable, so dangerous, and so tied to perpetuation of violence and degradation of the very classes of human beings who are least equipped to respond that it is properly treated as outside the realm of protected discourse.”). But see Azhar Majeed, Defying the Constitution: The Rise, Persistence, and Prevalence of Campus Speech Codes, 7 Geo. J.L. & Pub. Pol’y 481, 510 (2009) (questioning who would be the “ultimate arbiter” of low-value speech and arguing that “drawing a line between sufficiently low-value speech and speech deserving of protection is inherently difficult, if not impossible as a practical matter”). ↩︎
20. See Whittington, supra note 16, at 2474 (arguing that while universities must clarify that free speech claims are “not a get-out-jail-free card for those who impinge on the rights of others or disrupt the functioning of the educational environment . . . they also have a duty not to suppress disfavored or unpopular ideas if they are to advance their core institutional mission”). ↩︎
21. [1] See Suryatapa Bhattacharya & Ginger Adams Otis, NYPD Arrests Over 100 Pro-Palestinian Protesters at Columbia University, Wall St. J. (Apr. 18, 2024, 7:21 PM), https://www.wsj.com/us-news/education/columbia-university-protesters-detained-nypd-904b75bd?mod=article_inline [https://perma.cc/HFF4-MCE7] (documenting tensions involving free speech on a college campus in the context of the Israel-Hamas war). ↩︎
22. See, e.g., Barbara Lee, General Counsel’s Corner: Bias Response Teams – No Easy Answers, JD Supra (Feb. 2, 2022), https://www.jdsupra.com/legalnews/general-counsel-s-corner-bias-response-9942704  [https://perma.cc/C2X4-749M] (concluding that the “design and authority [of BRTs] need to be carefully considered in order to survive [First Amendment] challenge[s]”). ↩︎
23. After students brought suit, Iowa State University decided that its BRT would no longer operate. Lawsuit over Chalking Ban Dropped After Iowa State University Changes Some of Its Policies, First Amend. Watch (Mar. 17, 2020), https://firstamendmentwatch.org/lawsuit-over-chalking-ban-dropped-after-iowa-state-university-changes-some-of-its-policies [https://perma.cc/9GTB-RSAP] (discussing how Iowa State reformed its BRT after Speech First challenged it on First Amendment grounds); see also Amended Complaint at ¶ 66, Speech First, Inc. v. Wintersteen, No. 4:20-cv-2-SMR-SBJ (S.D. Iowa Jan. 2, 2020). ↩︎
24. See, e.g., Snyder v. Phelps, 562 U.S. 443, 452 (2011) (concluding that the First Amendment’s “profound national commitment” to “debate on public issues” protected the Westboro Baptist Church’s right to protest American soldiers’ funerals with anti-military and anti-homosexual speech); see also Papish v. Bd. of Curators of the Univ. of Mo., 410 U.S. 667, 670 (1973) ( “[The] mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of ‘conventions of decency.’”). ↩︎
25. BRTs enforce policies that do not proscribe specific views, at least in a facial sense, so plaintiffs cannot argue that BRTs engage in viewpoint discrimination. Nor can they argue that they suffer “stigmatic” harms. The Court has held that this “abstract sigmatic injury” is insufficient for standing, lest “[r]ecognition of standing in such circumstances would transform the federal courts into ‘no more than a vehicle for the vindication of the value interests of concerned bystanders.’” Allen v. Wright, 468 U.S. 737, 755-56 (1984) (internal citation omitted). But see Thomas Healy, Stigmatic Harm and Standing, 92 Iowa L. Rev. 417, 462, 488 (2007) (arguing that stigmatic harms should be recognized as cognizable injuries); Girardeau A. Spann, Color-Coded Standing, 80 Cornell L. Rev. 1422, 1457 (1995) (criticizing Allen for disregarding “problems of an abstract and speculative injury”). ↩︎
26. See, e.g., Speech First, Inc. v. Sands, 69 F.4th 184, 193 (4th Cir. 2023) (internal quotation marks omitted) (quoting Abbott v. Pastides, 900 F.3d 160, 176 (4th Cir. 2018), vacated mem., 144 S. Ct. 675 (2024). ↩︎
27. See infra Section III.A. ↩︎
28. See infra Section III.B. ↩︎
29. One of the Speech First Cases was vacated as moot this term by the Supreme Court. Speech First, Inc. v. Sands, 144 S. Ct. 675 (2024) (mem.). Justices Alito and Thomas would have heard the case on the merits, arguing that “[t]his petition presents a high-stakes issue for our Nation’s system of higher education. Until we resolve it, there will be a patchwork of First Amendment rights on college campuses . . . .” Id. at 678 (Alito & Thomas, JJ., dissenting). ↩︎
30. See infra Part IV. ↩︎
31. See, e.g., Cass R. Sunstein, What’s Standing After Lujan? Of Citizen Suits, “Injuries,” and Article III, 91 Mich. L. Rev. 163, 167 (1992) (casting doubt on the idea that “injury can be assessed through a purely factual inquiry, rather than one that is inevitably a product of courts’ value-laden judgments and of governing legal conventions”); Rachel Bayefsky, Constitutional Injury and Tangibility, 59 Wm. & Mary L. Rev. 2285, 2290-91 (2018) (explaining that the distinction between tangible and intangible harms is “a contextually sensitive boundary that reflects normative principles about which kinds of harm should count for standing purposes”). ↩︎
32. See infra Section V.A. ↩︎
33. See, e.g., Anna K. Krause, Note, University Bias Response Teams: Balancing Student Freedom from Discrimination and First Amendment Rights Through Student Outreach, 55 Ind. L. Rev. 809, 810-11 (2022) (“This note will provide campus officials with a framework within which they are able to uphold free speech rights while also working to further the conversation about bias and inclusion on campus.”). ↩︎
34. See, e.g., Jennifer L. Bruneau, Injury-in-Fact in Chilling Effect Challenges to Public University Speech Codes, 64 Cath. U. L. Rev. 975, 978-79 (2015) (analyzing the injury-in-fact requirement for pre-enforcement challenges of university speech codes). Most scholarship focuses instead on the merits of the constitutional arguments. See, e.g., Patrick Miller, University Regulation of Student Speech: In Search of a Unified Mode of Analysis, 116 Mich. L. Rev. 1317, 1318 (2018) (noting “a divergence in opinions about the constitutional boundaries of student speech regulation”). ↩︎