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From Starbuck v. Williamsburg James City County School Bd., decided yesterday by the Fourth Circuit (Judge Diana Gribbon Motz, joined by Chief Judge Roger Gregory and Judge James Wynn):

{Because the district court dismissed this case on a Rule 12(b)(6) motion, we relate the facts as set forth in Starbuck's amended complaint.} On February 15, 2018, the day after the horrific mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida, Jonathan Starbuck engaged in a conversation with his classmates about the shooting. Starbuck alleges that "[n]o student within the conversation made any threat" and that the conversation was factual. Starbuck "made remarks questioning the intent of the shooter, stating that the shooter would be capable of more harm had he wanted to, noting [the shooter's] possession of explosives and considering the time the shooter was left alone within the building unchallenged by local law enforcement." A teacher overheard the conversation and reported it to the local police and school administration.

As a result, the school removed Starbuck from classes for the remainder of the school day. During that time, which Starbuck refers to as an "in-school suspension," he alleges that various school officials "interrogat[ed]" him. The "[s]chool [p]olice officer investigated and cleared the [teacher's] report as unfounded" because the officer concluded "there was no threat made and no criminal offense occurred."

That evening, an assistant principal informed Starbuck's parent that Starbuck faced a two-day out-of-school suspension. Starbuck maintains that concerns for his "own safety" constituted the reason given for the in-school suspension, and unspecified "[t]hreats" constituted the reason given for the out-of-school suspension. The following week, Starbuck, along with his brother and mother, attended a meeting with various school officials including the assistant principal and a representative from the School Board.

Following this meeting and after receiving a formal notice of the out-of-school suspension, Starbuck submitted a written notice of appeal to the School Board. Three months later, in May 2018, after considering Starbuck's arguments, the School Board "found the suspension was proper" stating the reason for the suspension as "[c]lassroom [d]isturbance."

This, the Fourth Circuit said, would violate the First Amendment (again, if the facts are as alleged):

In interpreting the First Amendment, the Supreme Court has long held that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Student speech falls within the protection of the First Amendment unless it "materially disrupts classwork or involves substantial disorder or invasion of the rights of others," or (at least as applied to on-campus speech) is "indecent," "lewd," or "vulgar," "promotes illegal drug use," or is communicated through a school-sponsored activity. Starbuck's speech does not fall within any of these categories.

According to his complaint, Starbuck only engaged in a factual conversation with his peers about a current event that is uniquely salient to the lives of American teenagers, a school shooting. Schools cannot silence such student speech on the basis that it communicates controversial or upsetting ideas. To do so would be incompatible with the very purpose of public education. Cf. W. Va. State Bd. of Educ. v. Barnette (1943) ("That [boards of education] are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source."); Tinker v. Des Moines Indep. School Dist. (1969) (noting that "personal intercommunication among the students" is "an important part of the educational process").

The School Board relies on cases in which courts have "agreed that language reasonably perceived as threatening school violence is not constitutionally protected." We do not disagree. But Starbuck's remarks, as described in his complaint (which we must view in the light most favorable to him), were non-threatening statements about the tragedy that any student could have uttered in response to the news. For "school officials to justify prohibition of a particular expression of opinion, [they] must be able to show that [their] action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint."

The First Amendment does not permit schools to prohibit students from engaging in the factual, nonthreatening speech alleged here.

Congratulations to University of Virginia School of Law Appellate Litigation Clinic students Jacob Larson and Benjamin Lerman, who argued the case for plaintiff and were on the briefs; to Gregory Eng, who was also on the briefs; and to Prof. Scott Ballenger, who was counsel of record.

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"The First Amendment Does Not Permit Schools to Prohibit Students from Engaging in the Factual, Nonthreatening - Reason

Last week, after Florida legislators had already passed the Dont Say Gay bill allowing parents to sue teachers who acknowledge that gay people exist, Disney CEO Bob Chapek finally got around to condemning it.

Thank you to all who have reached out to me sharing your pain, frustration and sadness over the companys response to the Florida Dont Say Gay bill, Chapek wrote in a memo to employees announcing that the company would be pausing donations to the bills sponsors.

Speaking to you, reading your messages, and meeting with you have helped me better understand how painful our silence was. It is clear that this is not just an issue about a bill in Florida, but instead yet another challenge to basic human rights, he wrote, when it was too late to do anything about it. You needed me to be a stronger ally in the fight for equal rights and I let you down. I am sorry.

Well, Florida Republicans arent going to take this vicious assault lying down. They know their rights.

Haha, just kidding. They are fundamentally confused about their rights, much less the right of any person to criticize the government.

Heres Lieutenant Governor Jeanette Nuez explaining the First Amendment to Foxs Laura Ingraham.

These feckless CEOs of these woke corporations, theyre too busy bowing down to the altar of the [Chinese Communist Party], Nuez vamped, seemingly oblivious that she was criticizing the company for failing to stand up to government censors in China, while simultaneously demanding that the company censor itself at home at the behest of the American government.

Also, not for nothing, but the CCP isnt exactly known for its gay-friendliness.

They will criticize our legislation, they will try to bully us. Like the NCAA did, like Disneys doing. How dare they! They have no right to criticize legislation by duly elected legislators that are passing common sense legislation, she continued. To criticize and to threaten! Governor DeSantis and I wont stand for it.

To be fair, Lt. Gov. Nuez is not a lawyer, so perhaps she doesnt understand the finer points of First Amendment law. But surely Laura Ingraham, who clerked for Justice Clarence Thomas, knows damn well that thats not how free speech goes. And Governor DeSantis (HLS 2005) knows the government cant punish Disney for speaking out against the law. Or at least, he did know that at one time.

Recently courts have had to smack down his ridiculous anti-protest bill, his social media censorship law, and the University of Floridas efforts to bar employees from testifying in litigation against the state. So perhaps the governor has engaged in some strategic forgetting.

Just like the lieutenant governor, who seems to have forgotten that gay parentsexist.

Were proud, Nuez went on. In the free state of Florida, we put parents and their rights first.

Well, not their First Amendment rights. Try to exercise those, and theyll accuse you of being a pedophile. But, you know, if youre want to sue a teacher for acknowledging that a student has two mommies, the state of Florida has got your back.

Liz Dyelives in Baltimore where she writes about law and politics.

The rest is here:
Florida's Lt Gov Is Very Confused About The First Amendment. Just Like Her Boss. - Above the Law

The ruling is a setback for University of North Texas administrators who had asked the court to dismiss the lawsuit brought by former adjunct professor Nathaniel Hiers. (University of College / Shutterstock.com)

by Alex Morey

A First Amendment lawsuit filed by a former University of North Texas adjunct professor who was non-renewed in 2019 for criticizing microaggressions can continue, a federal district court judge held on Friday. Along with denying the universitys motion to dismiss Nathaniel Hiers First Amendment retaliation claims, the court held that attempting to force Hiers to apologize likely comprised unconstitutionally compelled speech. The court also denied qualified immunity to the UNT administrators involved in the alleged retaliation, concluding that any reasonable university official would have known that it was unconstitutional to discontinue [Hierss] employment because of his speech.

FIRE first covered the suit, sponsored by Alliance Defending Freedom, when it was filed back in April 2020. As we summarized the facts at the time:

The trouble started in November 2019, when someone anonymously left a stack of flyers in the [UNT] faculty lounge explaining the concept of microaggressions, which the flyers described as verbal and nonverbal behaviors that communicate negative, hostile, and derogatory messages to people rooted in their marginalized group membership. According to his complaint, Hiers believes that the concept of microaggressions hurts diversity and tolerance because it teaches people to see the worst in other people, promotes a culture of victimhood, and suppresses alternative viewpoints instead of encouraging growth and dialogue. Indeed, microaggression theory has been the subject of much public debate, including as the complaint notes in FIRE president Greg Lukianoff and NYU social psychologist Jon Haidts recent book, The Coddling of the American Mind.

So in response to the flyers he disagreed with, Hiers wrote a note on the chalkboard in the faculty lounge that read please dont leave garbage lying around, with an arrow pointing to [one of the] flyers.

According to [Hierss] complaint, professors regularly leave comments and jokes on the faculty lounge chalkboard, often anonymously. But this time, Ralf Schmidt, chair of the math department, sent an email to the entire department with a photo of the comment, stating, Would the person who did this please stop being a coward and see me in the chairs office immediately. Thank you.

Fridays decision by district court Judge Sean Jordan dismisses a number of Hiers claims, such as for breach of contract. However, he finds the professor plausibly alleged that the university officials violated his right to freedom of speech, as he spoke outside of his job duties as a private citizen on matters of public concern (citations omitted here, and in quotes below):

Hierss critique of the flyer on microaggressions transcended personal interest and touched on a topic that impacts citizens social and political lives. His speech did not address a personal complaint or grievance about his employment. The point of his speech was to convey a message about the concept of microaggressions, a hot button issue related to the ongoing struggle over the social control of language in our nation and, particularly, in higher education.

The court notably cited FIRE President and CEO Greg Lukianoff, Executive Director Robert Shibley, and First Amendment scholar and FIRE Legal Fellow David L. Hudson, Jr. (see page 22) for the proposition that debate over microaggressions is a matter of public concern.

Fridays decision is a win for faculty targeted for their protected speech, particularly adjuncts who lack the protections of tenure.

The court also pushed back on UNTs assertion that Hierss language was uncivil or otherwise removed from the First Amendments protection, instead holding that Hiers expressed the kind of pure speech to which the First Amendment provides strong protection.

In sum, Hiers met the burden, at this stage of the litigation, for his First Amendment retaliation claims to continue:

Preserving the freedom to think as you will and to speak as you think; is both an inherent good, and an abiding goal of our democracy. The university officials allegedly flouted that core principle of the First Amendment when they discontinued Hierss employment because of his speech. Accepting the allegations as true, the Court concludes that Hiers plausibly alleged that the university officials violated his right to freedom of speech.

The court was also persuaded that UNT may have violated Hierss right to be free from compelled speech when administrators allegedly asked him to apologize for his speech:

Taking these allegations as true and viewing them in the light most favorable to Hiers, it is plausible that the university officials unconstitutionally punished Hiers for refusing to affirm a view the concept of microaggressions with which he disagrees. Hiers has plausibly alleged that the university officials discontinued his employment that is, punished him because he did not express honest regret about his views and speech on microaggressions.

Nor was the judge moved by UNTs argument that it did not compel speech by Hiers because it did not require him to publicly apologize:

To the contrary, precedent establishes that the government violates the First Amendment when it tries to compel public employees to affirm beliefs with which they disagree. Period.

Fridays decision is a win for faculty targeted for their protected speech, particularly adjuncts who lack the protections of tenure. FIRE will continue watching this case closely as it progresses.

See original here:
Court: University of North Texas professor's First Amendment retaliation lawsuit over firing for calling 'microaggression' flyers 'garbage' can...

Juli A. Metzger| Special to The Star Press

As we embark on Sunshine Week, an annual recognition of the importance of open government, I cannot help but reflect on our imperfect union, and that the free flow of fact-based news continues to hit roadblocks in this age of misdirection and disinformation. Fake news, if you will.

But whatever obstacles we encounter in the United States serve as warnings to what we could face, if left unchecked. United States press operations have pulled out of Russia after journalists covering the invasion of Ukraine were threatened. Russias President Putin makes no secret how he feels about the free flow of information, and the only information left for the Russian people is government-regulated propaganda.

The former American Society of News Editors (now theNews Leaders Association) launched Sunshine Week in 2005 as a national initiative to promote a dialogue about the importance of open government and freedom of information.

The weeklong celebration is held every Marchto coincide with theMarch 16birthday ofJames Madison,the father of the U.S. Constitution and a key advocate of the Bill of Rights.This year, it is March 13-19.

The First Amendment provides us with great protection from government interference for what we say and write, particularly on political issues or matters of public interest. We should remember that the nations founders created those protections to allow for what the U.S. Supreme Court has called robust and vigorous debate. In 2002, JusticeAnthony Kennedywrote, The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.

These days, as we witness what it means to be silenced and without recourse, we should think about those words and why the founders and the nation ratified the First Amendments five freedoms during a period of great division and debate not unlike today. Unfettered flow of information and access to government is for each of us, not just members of the press, which leads to a timely discussion this week on that very topic.

Last October, Indiana Attorney General Todd Rokita bannedAbdul-Hakim Shabazz from covering his press conferences, saying he wasnt an actual journalist. The ACLU in February filed a lawsuit citing it was a violation of Shabazzs First Amendment rights. Rokita later denied Shabazzs open records request asking for an explanation from Rokita as to why he was banned. Just this month, Rokita filed a motion to dismiss the lawsuit.

Shabazz is editor and publisher ofindypolitics.org, a well-established digital news source for politics in Indiana. He will be joined in a panel discussion at Ball State University this week about Who is a Journalist and Why it Matters, by Indianapolis Star statehouse reporter Kaitlin Lange, Steve Key, executive director and general counsel of the Hoosier State Press Association and Amelia Dieter McClure, the incoming executive director of the Hoosier State Press Association..

The event, sponsored by the College of Communication, Information, and Media, is 7 p.m. Tuesday, March 15, inthe L.A. Pittenger Student Center Forum Room (second floor). The event is free and open to the public.

Our rights, including the right to free speech, dont exist if theyre not defended. And defending basic freedomseven when a group besides our own is in the crosshairsbenefits everyone by making sure the protections of our basic rights remain strong.

Juli A. Metzger is an associate lecturer at the Ball State University School of Journalism and Strategic Communication, and is former president and publisher of The Star Press and executive editor for digital at The Indianapolis Star.

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Join the Who Is a Journalist? discussion on 1st Amendment rights during Sunshine Week - The Star Press

She cannot create websites that promote messages contrary to her faith, such as messages that condone violence or promote sexual immorality, abortion or same-sex marriage, Smiths lawyers told the Court.

In defending the law, Colorado argues that Smith can make her views known in any public forum she wants. What she cant do is proclaim that she will discriminate as a business.

Prohibiting companies from displaying what would amount to Straight Couples Only messages is permissible, because it restricts speech that proposes illegal activity and is therefore unprotected by the First Amendment, Colorado Attorney General Philip Weiser told the Court in the filing as it considered taking the case.

Of course, thats not the point of view from the lawyers representing Smith. Colorado has weaponized its law to silence speech it disagrees with, to compel speech it approves of and to punish anyone who dares to dissent, Kristen Waggoner, a lawyer with Alliance Defending Freedom, told The New York Times in a statement.

Thats a fine principle. Except for the right, its not really a principle at all.

Heres a simple way to test it. Substitute Florida for Colorado in Waggoners statement. Does anyone for a second believe that Alliance Defending Freedom, Florida Gov. Ron DeSantis (R) or any of the other culture warriors piling on against LGBTQ issues would for a second condemn the Dont Say Gay bill on First Amendment grounds?

Hardly. Alliance Defending Freedom is in fact one of the architects of the rash of anti-LGBTQ measures flooding state legislatures.

The fact is that the only speech the right wants to protect is its own. From its perspective, the First Amendment doesnt extend past the church door. Thats why its so happy to censor not just teachers but books and libraries. The only speech that matters is its own.

Unfortunately, a majority of justices on the Supreme Court are likely to agree. They seem ready to believe that faith supersedes every other right, including the right not to be discriminated against.

The Colorado case will give the justices exactly the case they need to make their religious liberty argument the law of the land. When Anthony Kennedy was still on the Court, the justices punted on another case from Colorado, this one involving a baker who refused to make wedding cakes for same-sex couples.

That ruling, Masterpiece Cakeshop v. Colorado Civil Rights Commission, was narrow, reflecting Kennedys influence. There will be no such restraint next time around. And if there is a challenge to Floridas Dont Say Gay law, dont expect the justices to apply the same standards as they will to the Colorado law.

Read more from the original source:
The right loves First Amendment rights. But only when it applies to them. - LGBTQ Nation