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The three words that best describe the Supreme Courts decisions this term are text, history and tradition. If thats one word too many, try this: Originalism Rules! And thats a good thing.

The court considered several important constitutional cases this term. The split in most of these cases was six-to-three, with the conservative justices in the majority and the liberal justices in dissent.

In the biggest case,Dobbs v. Jackson Womens Health Organization, a five-justice majority ruled the Constitution has no right to obtain an abortion. This overturnedRoe v. Wade(1973) andPlanned Parenthood v. Casey(1992).

Nearly 50 years ago, Justice Byron White, in hisRoedissent, wrote that the errant ruling represented an exercise of raw judicial power. Similarly, John Hart Ely, an eminent scholar who supported abortion rights, stated thatRoewas not constitutional law and g(ave) almost no sense of an obligation to try to be.

>>>5 Monumental Cases That Highlighted the Supreme Courts 2021-2022 Term

Those views were reflected in the majority opinion forDobbs, written by Justice Samuel Alito. He noted that the right to an abortion is not in the Constitutions text, nor was it part of our nations history or traditions. Indeed, virtually every state outlawed abortion when the Constitution and the 14th Amendment were ratified.

The court also decided on an important Second Amendment case,NY State Rifle & Pistol Assoc. v. Bruen. Justice Clarence Thomas wrote the six-to-three majority opinion, striking down a New York law requiring law-abiding citizens who passed a background check to demonstrate a special needbeyond a general desire to defend oneselfbefore being permitted to carry a firearm outside the home.

The court said that such a restriction was not supported bydrumroll pleaseeither the amendments text or the nations historical traditions. The court further stated that the amendment was the product of an interest balancing by the people and that it was improper for a court to engage in a judge-empowering interest-balancing inquiry once the protections of the amendment had been properly invoked.

In an important religious liberty case,Kennedy v. Bremerton School District, Justice Neil Gorsuch wrote the six-justice majority opinion ruling that a school violated the free exercise and free speech rights of a high school football coach when it fired him for offering a silent post-game prayer at midfield. The court relied uponyou guessed ithistorical practices and the original meaning of the First Amendments text in reaching its decision.

The court also finally declared that the courts much-criticized three-part test for analyzing Establishment Clause cases, promulgated inLemon v. Kurtzman(1971)which Justice Antonin Scalia once described as some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buriedwas indeed dead.

The court also sided with religious adherents in other significant religious liberty and free speech cases, includingCarson v. Makin,Shurtleff v. City of Boston, andRamirez v. Collier. Senator Ted Cruz also won a significant victory against the Federal Election Commission in which the court, again by a six-to-three vote, held that an FEC rule violated the First Amendment rights of candidates wishing to make personal loans to their own campaigns to engage in pure political speech.

And inNFIB v. OSHA,West Virginia v. EPAandAlabama Assoc. of Realtors v. HHS, the court (again via 6-3 votes) held that separation-of-powers principles require Congress to speak clearly before an administrative agency consisting of unaccountable bureaucrats can exercise nearly unlimited power over decisions of great economic and political significance.

>>>Supreme Courts Ruling in West Virginia v. EPA Delivers Win for Self-Government, Affordable Energy

In his dissenting opinion in the infamous case ofDred Scott v. Sandford, Justice Benjamin Curtis stated: When a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men who, for the time being, have power to declare what the Constitution is according to their views of what it ought to mean.

During this momentous term, the court made great strides toward interpreting the Constitution with fidelity and restoring the rights of all Americans to govern themselveswith the exception of those few individual rights that are delineated in our Constitution or firmly rooted in our nations historical traditionsdebating, persuading and deciding contentious issues directly or through their elected representatives.

In terms of interpreting and adhering to the Constitution, I give the court an A-plus.

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Grading the SCOTUS: Originalism Rules, and That's a Good Thing - Heritage.org

Gun Owners of America (GOA) is suing New York state over new restrictions on the public carrying of firearms that were rushed through the state Legislature and signed into law after the U.S. Supreme Court struck down the states requirement that a carry permit applicant must demonstrate a special need for self-defense.

The lawsuit takes aim specifically at the Concealed Carry Improvement Act (CCIA), which New York Gov. Kathy Hochul, a Democrat, signed into law earlier this month. It takes effect on Sept. 1.

At the time, Hochul denounced the court for issuing what she called a reckless decision removing century-old limitations on who is allowed to carry concealed weapons in our statesenselessly sending us backward and putting the safety of our residents in jeopardy.

The name of the statute itself is ironic because it is New Yorks attempt to flout the Supreme Courts June 23 ruling in New York State Rifle and Pistol Association v. Bruen, according to the legal complaint (pdf) filed July 11 in U.S. District Court for the Northern District of New York. The new law puts into effect several blatantly unconstitutional new infringements of the enumerated right to keep and bear arms, the complaint states.

The case is Antonyuk v. Bruen, 1:22-CV-734. The plaintiffs are gun owner Ivan Antonyuk, Gun Owners of America Inc., its foundation, and its New York affiliate. Defendant Kevin Bruen is superintendent of the New York State Police.

We are confident that we will pretty much overturn everything they did in this legislative package because they were clearly in violation of the direct ruling in New York State Rifle and Pistol Association v. Bruen,Sam Paredes, the executive director of Gun Owners of California, a member of GOAs board of directors, and treasurer of its affiliated foundation, told The Epoch Times in an interview.

Specifically, the lawsuit targets the CCIAs good moral character requirement for permit applicants, the requirement that applicants supply character references at in-person interviews with police and submit their own social media posts for government inspection, the vastly expanded ban on sensitive locations where concealed weapons may not be brought, and a raft of new administrative fees the lawsuit calls a Second Amendment tax.

Applicants must undergo 18 hours of combined training where presently its only four hours. The fact of the matter is that we know that this is just an angry, vicious response to the Supreme Court ruling because concealed carry weapons permit holders in New York are amongst the most law-abiding of all citizens in the state, just like they are in California and across the country, Paredes said.

The four-hour training requirement and background checks were sufficient to maintain that level of purity amongst the CCW [i.e. concealed carry weapons permit] holders, but the new mandates serve no purpose other than to limit gun ownership, he said.

So what they did is they shifted from the good cause [requirement] to a display of good moral character. There is no plain definition of good moral character in New York statutes or California statutes, or any statutes.

So, they have added this great amount of subjectivity to the process, he said. Subjectivity is the enemy of the Second Amendment, and they are adding it in spades.

Paredes recalled that California Attorney General Rob Bonta, a Democrat, also recently embraced his states own good moral character requirement for permit applicants, a development The Epoch Times reported on.

In a statewide memo to law enforcement, Bonta encouraged permit-issuing authorities to include the absence of hatred and racism as a positive factor in determining whether to grant a permit, leading to concerns among Second Amendment advocates that an applicants political views, expressed on social media or elsewhere, could lead to a permit denial.

Although Paredes said as far as he knows the CCIA doesnt specifically reference hatred or racism, these potentially inflammatory terms, which are malleable in todays politically polarized environment, could still somehow find their way into the New York permitting process.

On social media people will say stuff that they dont understand what it means, or they do understand, but they want to express something. And they have the First Amendment right to do so. Now, New York and California want to use the expression of a First Amendment right, as a reason to deny a Second Amendment right.

You cannot use a constitutional right to invalidate another constitutional right, Paredes said.

The Epoch Times reached out to state officials.

We are not commenting, the New York State Police replied by email.

The office of New York Attorney General Letitia James, a Democrat, didnt respond by press time.

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Matthew Vadum is an award-winning investigative journalist and a recognized expert in left-wing activism.

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2nd Amendment Advocacy Group Sues New York Over New Concealed Carry Restrictions - The Epoch Times

OPINION Heres an Independence Day quiz intended for our local elected officials in Fayette County for the city councils and the county commission and the Board of Education.

The quiz is about what local officials in their public meetings seem to have overlooked, or forgotten or just plain ignored about the last clause of the First Amendment to the U.S. Constitution.

Mayors, council members, commissioners and school board members, you all know about freedom of religion and its free exercise, about freedom of speech and of the press. Some of you worry about the right of the people peaceably to assemble.

Heres the final right expressly listed in the First Amendment: to petition the government for a redress of grievances.

I have been covering and reporting on local government meetings since 1970. Yep, thats a long time and a lot of elected officials. And I have observed a common reaction of elected officials (many if not most) during public meetings throughout that half century.

They gavel down and even threaten to remove members of the public who dare to speak their actual grievances about public officials.

I have seen it personally during the past year at the following meetings: Fayette County Board of Education (the most egregious), the Fayetteville City Council, the Peachtree City Council, the Fayette County Commission. It likely happened at the Tyrone Council as well, but I havent personally witnessed it.

Why likely? Because thats just how public meetings of elected bodies operate.

You may argue that they all have set aside (more about that insult later) a limited amount of time for the public to have comments.

But the deal is this: They will not allow name-specific criticism of any person on the public payroll under their jurisdiction, elected, appointed or otherwise. They cut you off if you try. If you persist, they tell you to shut up or they will have a law enforcement officer remove you from the room.

At the recent Fayetteville City Council meeting, it got worse.

Fayetteville Mayor Ed Johnson (who is a good man and whom I like and respect) gaveled down a public speaker who began to criticize the Fayette County Development Authority. The FCDA was the applicant for a controversial annexation and rezoning for a mid-county data center next to long-established residential neighborhoods. The mayor ruled she was out of order.

The woman tried to continue about the FCDA. Mayor Johnson said if she continued, he would have a police officer remove her from the council meeting room. After asking, What did I do? she sat down.

She had a grievance about the government authority that was the official applicant for the rezoning. A meeting room was packed with folks who opposed the FCDA request.

Under threat of removal (and possible arrest) this member of the public speaking in measured words, without visible anger and using no curse words or obscenities was muzzled and her First Amendment right to voice her grievance during the designated time and place was trampled on.

What do these people in power think a grievance is? Heres a dictionary definition: a real or imagined wrong or other cause for complaint or protest, especially unfair treatment . an official statement of a complaint over something believed to be wrong or unfair a feeling of resentment over something believed to be wrong or unfair.

In other words, it is by definition something negative. And according to the First Amendment of our U.S. Constitution, the mayor and council are obligated to hear that grievance. To speak that grievance is a constitutional right, in clear text and without boundaries.

The only person in that meeting who was out of order out of constitutional order was Mayor Ed Johnson.

But he is not the only one out of order.

The Fayette County Board of Education routinely silences criticism from members of the public. Let a parent bring up a specific grievance about a principal or a school disciplinary problem, and the gavel comes down with a bang.

The Peachtree City Council also dislikes criticism about city personnel or applicants for a zoning change during a public meeting.

Again, who do they think they are that they can routinely set strict limits on what a grievance can be? The First Amendment sets no boundaries on what is a proper, allowable grievance and what grievance is out of order.

I can hear elected officials argue, If we let just any grievance be aired, no telling what will be said and how long we will have to be there. Amen, brothers and sisters, preach that First Amendment! It is your elected privilege to listen to the people who put you in that position.

More about that set aside time that elected officials ordain for the public that elected them. Heres the truth: Most officials dont want to hear it. Thats why they move public comments to near the end of the public meetings, or set strict, timed limits on how long somebody can speak (they have no such limits on their own talk time, though many wish they would), and make speakers sign up before the meeting begins. What an insult!

Two evenings a month, they could make the time to serve the public by simply listening to the public as long as the speakers want to come, let them speak. But, sadly, many elected officials who campaigned for your vote at all hours and for many days once elected would rather you didnt disrupt their twice-a-month evening schedule.

To any attorneys in the audience, I suggest this is a mostly untouched area of First Amendment jurisprudence, ripe for precedents to be adjudicated. Unlike the Second Amendment, the text of the First Amendment is easily understood, without limiting qualifications: To petition the government for a redress of grievances. By definition, you could find a lot of aggrieved citizens.

People have a First Amendment right to tell the government what its doing wrong and to request that the wrong be righted. The biggest wrong is to gavel a member of the public down because the official dislikes the grievance being aired. And to shut them up at the 2-minute or 3-minute mark. In this democratic republic, we are under the impression that we elect public servants, not royalty who hold timed audiences.

With deep respect, I suggest to the mayors and chairpersons running these meetings, Shut up and listen.

[Cal Beverly has been the editor and publisher of The Citizen in Fayette County since 1993.]

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Local elected officials routinely ignore and violate part of 1st Amendment - The Citizen.com

The Supreme Court term that ended today once again showed the power of the First Amendment to shape American life. The court invoked the First Amendment in cases regulating social media platforms, prayer at public schools, state funding of religious schools, campaign finance restrictions, billboard advertisements, and religious exemptions to COVID-19 vaccine mandates.

The court decided three government speech cases, holding that a Christian flag flown outside Bostons City Hall and a coachs public prayers on the 50-yard line after high school football games represented private, not government, speech. In a unanimous decision, the court also held that an elected official had no First Amendment retaliation claim against a government board for censuring him. The boards censure was not a penalty, but its own protected speech.

In two cases, the court also elevated religious liberty rights under the free exercise clause over concerns about the separation of church and state under the establishment clause of the First Amendment. It held that Maine could not discriminate against religious schools by excluding them from a tuition assistance program open to nonsectarian schools. It also abandoned the Lemon test, holding that public schools do not offend the establishment clause by permitting school employees to engage in private, publicly visible prayer on campus.

At the same time, the court signaled that some members were open to weakening First Amendment protections for the media. Three justices would have preliminarily let a Texas law go into effect regulating the content of social media platforms. The court will likely hear a test case of the Texas law and a similar Florida law next term. The court also turned away a challenge to its landmark defamation decision, New York Times Co. v. Sullivan, but Justice Thomas continued to press the court to revisit the precedent.

The courts decisions continue to show the tension between incremental change and more decisive reversals of precedent. The court, for example, declined to recognize an implied claim against federal officials for damages for First Amendment retaliation under Bivens. But it did not join Justice Gorsuchs call to overturn Bivens altogether.

The justices also continue to struggle with how to frame tests to evaluate whether government action violates the First Amendment. The court unanimously ruled against the city of Boston for excluding a Christian flag from a flag-flying program at City Hall, but it split 63 on the test for evaluating whether speech constitutes government speech. Three justices also dissented from a case holding that an off-premise billboard ordinance was not a content-based regulation. The three justices argued that the court had retreated from a stricter, bright-line test for content-based laws set out in Reed v. Town of Gilbert just seven years ago.

Here are summaries of the Supreme Courts major First Amendment decisions this term:

The Supreme Court agreed to keep a preliminary injunction of Texas social media law in place, preventing the law from going into effect pending a full review of the laws constitutionality. The law would prohibit platforms from censoring users based on viewpoint, require procedures for users to appeal content removal, and require disclosures of the social media companies policies.

Three justices, including Justice Kagan, would have let the law take effect now. Justice Alito wrote that the case concerns issues of great importance that will plainly merit this Courts review but concluded that whether the First Amendment challenge is likely to succeed under existing law is quite unclear.

In a 63 opinion written by Justice Gorsuch, the court held that the First Amendments free speech and free exercise clauses protect a high school football coachs right to pray on the 50-yard line of the school football field after a game in a quiet, publicly visible religious observance.

The case arose when high school football coach Joseph Kennedy refused a directive from the Bremerton School District to stop publicly praying with students after games. The school district placed Kennedy on administrative leave and did not renew his contract when he continued to pray after games, and Kennedy sued. The court described Kennedy as engaging in a quiet prayer of thanks while his students were otherwise occupied. But the dissent by Justice Sotomayor included photographs of Kennedy praying with a crowd of students and adults, and described his history of inviting students from the opposing team to pray, leading vocal religious motivational speeches to students after games, and praying in the locker room with the team.

The court held that the school district had violated both his free speech and religious liberty rights by suspending him. The coach was engaged in private speech, not government speech in his capacity as a school employee, by leading the prayers on the 50-yard line after games. The court also held that the school districts tolerance of Kennedys prayers did not violate the establishment clause, and cast aside the courts Lemon test for evaluating whether government acts appear to endorse religion. Instead, Justice Gorsuch wrote that the court should look to historical practices and understandings to evaluate whether conduct offends the establishment clause.

Justice Sotomayor accused the majority of setting aside years of establishment clause precedents and ignoring the coercive effect of the coachs public prayers on students, who may feel social pressure to participate in the coachs prayer circle. [T]he Court sets us further down a perilous path in forcing States to entangle themselves with religion, with all of our rights handing in the balance, Justice Sotomayor wrote. As much as the court protests otherwise, todays decision is no victory for religious liberty.

In a 63 decision, Chief Justice Roberts wrote that the free exercise clause prohibited Maine from discriminating against religious schools by excluding those schools from a tuition assistance program open to nonsectarian schools in rural areas without free-standing public schools.

Because the Maine Constitution requires that every town provide children with free public education, the state offered tuition assistance to private, nonsectarian schools in rural Maine towns lacking the funds and population to support a free public school. Two families who wanted to use the state tuition payments to send their children to Christian schools sued when the state refused to provide the state tuition assistance to the schools.

The court held that Maine had discriminated against religious schools by excluding them from the program. Chief Justice Roberts wrote that Maine could not promote stricter separation of church and state than the Federal Constitution requires while penalizing parents for the free exercise of their religion by denying them tuition payments available to every other parent.

Justice Breyer dissented, explaining that states needed leeway to balance the purpose of the establishment clause to prevent a state religious orthodoxy with the individual religious rights protected by the free exercise clause. Justice Sotomayor was blunter: This Court continues to dismantle the wall of separation between church and state that the Framers fought to build.

The court unanimously held that the city of Boston did not engage in government speech when it let groups raise a flag of their choosing on a city flagpole outside City Hall during community events. Because the city was not itself speaking by letting groups fly flags outside City Hall, it could not discriminate against a Christian flag based on the flags religious viewpoint.

The case arose when the city refused to let a group called Camp Constitution fly a Christian flag as part of an event, involving local clergy, to recognize the contributions of the Christian community in Boston. For years, the city had allowed private groups to fly a flag of their choosing on a flagpole during community events and had never denied a group use of the flagpole or even closely reviewed the flags flown.

Although the court ruled unanimously for the challengers, it split 63 on the proper test to determine whether expression constituted government speech. Writing for the court, Justice Breyer applied a three-part test considering the speechs history, the publics likely perception about who was speaking, and the extent of government control of the speech. The last two factors favored the view that the Christian flag represented private, not government, speech.

Justice Alito disagreed, arguing that the courts test obscures the real question in government-speech cases: whether the government is speaking instead of regulating private expression. He proposed a two-part test. First, Alito would look at whether the speech involved purposeful community of a government message by a person acting within his or her powers to speak for the government. Second, Alito would require the government to establish that it had not abridged the speech of persons acting in a private capacity.

With only Justice Thomas dissenting, the court denied certiorari in a case brought to overturn or limit the Supreme Courts landmark decision in New York Times v. Sullivan. Sullivan protects speech about public figures and officials from defamation lawsuits without proof of actual malice.

Coral Ridge Ministries sued the Southern Poverty Law Center for designating the evangelical Christian group as an anti-LGBT hate group because, among other things, it described homosexuality as lawless, an abomination, and against nature. The Eleventh Circuit held that Coral Ridge had failed to plead actual malice in its lawsuit and affirmed the cases dismissal.

Coral Ridge came to the Supreme Court last year, asking the justices to either reconsider the actual malice standard or limit it to public officials. But the justices turned down that request. Justice Thomas dissented. New York Times and the courts decisions extending it were policy-driven decisions masquerading as constitutional law, he wrote.

The court invalidated a federal law and FEC regulation that prohibited a campaign from using more than $250,000 in contributions made after election night to repay a candidates personal campaign loan. Sen. Ted Cruz loaned his reelection campaign $260,000 and sued when the campaign could not repay him more than $250,000 from post-election contributions.

Chief Justice Roberts wrote that the First Amendment offers the fullest and most urgent protection to political campaigns and that the restrictions inhibited candidates from loaning money to their campaigns, burdening political speech. The court also doubted the governments rationale for the restrictions, claiming it had not proven quid pro quo corruption and that campaign contribution limits already worked to prevent corruption.

Justice Kagan dissented, writing that the court had overstated the laws First Amendment burdens and understated the laws value to prevent corruption value. The law regulated loans, not campaign spending. And the government did not need to prove corruption to regulate what everyone knows to be true people (including politicians) will often do things for money.

The court upheld Austins off-premise billboard ordinance and receded from a bright-line rule for content-based restrictions set out in Reed v. Town of Gilbert. Justice Sotomayor wrote that though the billboard ordinance required a person to read the billboards content to determine whether the billboard advertised an on-premise or off-premise business, the ordinance was actually agnostic as to content. A signs location, rather than its content, mattered most.

Justice Breyer concurred but favored a balancing test weighing a regulations First Amendment harms against the regulatory objectives that it serves.

Justice Thomas wrote a bitter dissent, joined by Justices Gorsuch and Barrett, warning that the court had replaced Reeds bright-line rule with an incoherent and malleable standard that was results-driven and created the potential for invidious discrimination of disfavored subjects.

The court unanimously held that the First Amendment permits a government board to censure a member for his or her actions and that the censure does not create a claim for First Amendment retaliation.

The case arose after the Houston Community College System censured an elected trustee, Dave Wilson, for disrespecting members after Wilson criticized and campaigned against his colleagues, sued the board, and hired a private investigator to look into one of his fellow trustees.

The boards censure constituted the governments own speech, equally protected by the First Amendment as Wilsons speech, Justice Gorsuch wrote for the court.

The court unanimously held that the Constitution does not permit a person to bring a First Amendment retaliation claim for damages against a federal official under Bivens v. Six Unknown Federal Narcotics Agents. Justice Thomas wrote that the court would not enlarge implied constitutional torts where there is any reason to think that Congress might be better equipped to create a damages remedy.

The case occurred after Robert Boule, the owner of the Smugglers Inn on the Canadian border in Washington state, complained that a Border Patrol agent had thrown him to the ground after demanding to see the papers of a Turkish national at the inn. In response, the agent contacted the IRS, triggering an audit, and notified the state that Boules license plate, SMUGLER, referenced illegal activity. Boule sued for First Amendment retaliation under Bivens.

The court did not recognize a Bivens claim for First Amendment retaliation but held back from overruling Bivens entirely, as Justice Gorsuch urged the court to do in a concurrence that no other justice joined. I would only take the next step and acknowledge explicitly what the court leaves barely implicit, Justice Gorsuch wrote. [W]e should exercise the truer modesty of ceding an ill-gotten gain, and forthrightly return the power to create new causes of action to the peoples representatives in Congress.

Last term, after Justice Amy Coney Barrett joined the court, the court, in a series of orders on the emergency or shadow docket, prevented California and New York from enforcing limits on, among other things, the size of religious services and indoor gatherings. The court sided with challengers seeking to block lockdown restrictions to slow the spread of COVID-19.

But this term, a majority of the court voted for the government in emergency applications involving religious challenges to COVID-19 vaccine mandates.

In two New York cases, We the Patriots USA Inc. v. Hochul and Dr. A v. Hochul, the court declined to enjoin a regulation requiring all health care workers to get the COVID-19 vaccine regardless of religious objections.

The challengers asserted they could not receive the vaccines, which they said were developed with decades-old aborted fetal cells, without violating their religious beliefs. A different group also challenged the rule for allowing a medical exemption, but not a religious exemption. Justices Thomas, Alito, and Gorsuch would have granted injunctive relief in both cases.

In Austin v. U.S. Navy Seals 1-26, the court blocked an injunction against a Department of Defense rule requiring all active-duty personnel to get the COVID-19 vaccine. A group of Navy Seals challenged the rule on religious grounds. Justices Thomas, Alito, and Gorsuch would have allowed the injunction against the regulation to go into effect.

David Karp is an appellate lawyer at Carlton Fields and moderator of the Florida Bars Annual Seminar on the First Amendment cases of the U.S. Supreme Court term.

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Top 10 First Amendment Cases of the Supreme Court Term - JD Supra

Gender identity has been an issue of intense debate over the past couple of years. Courts are still grappling with the U.S. Supreme Courts decision inBostock v Clayton County, 140 S. Ct. 1731 (2020), which held that the 1964 Civil Rights Act protects gay, lesbian and transgender employees from discrimination based on sex. Although it has been two years sinceBostock,public and private universities are continuing to reform their discrimination policies to comply with this new law.InMeriwether v. Hartop, 992 F.3D 492 (6th Cir. 2021), the Sixth Circuit Court of Appeals determined whether a university professor who refuses to use transgender pronouns is afforded First Amendment protections.

Nicholas Meriwether was a philosophy professor at Shawnee State University. At the start of the 2016 school year, the university emailed faculty informing them they had to refer to students by preferred pronouns; professors who refused would be disciplined.

One day Meriwether referred to a student, Jane Doe, as sir instead of using a feminine pronoun. According to Meriwether, no one would assume Doe was a female based on Does outward appearance. Doe demanded that Meriwether use feminine pronouns when he addressed her. Meriwether believed his religious beliefs prevented him from communicating messages about gender identity that he believes are false.

He reported the incident to senior university officials, and the Acting Dean of the College of Arts and Sciences met with him. The Dean advised Meriwether to stop using all sex-based references in his class. In response, Meriwether stated hewould refer to most of the students using pronouns and refer to Doe by her name. The Dean accepted the compromise.

Doe remained unsatisfied and complained to university officials. The Dean informed Meriwether that if he did not address Doe as a woman, he would be violating the universitys policy. Meriwether accidently referred to Doe as sir on another occasion. Doe reported the incident to the universitys Title IX Coordinator, and Meriwether met with the Dean again. He offered a second compromise. He asked whether he could use preferred pronouns but place a disclaimer in his syllabus noting that he was doing so under compulsion and setting forth his personal and religious beliefs about gender identity. His compromise was rejected.

Doe complained again, and a Title IX investigation ensued. The investigation concluded that Meriwethers disparate treatment[of Doe] [had] created a hostile environment. The Dean later brought a formal charge against Meriwether under the collective bargaining agreement. The Dean also recommended placing a formal warning in his file. The Provost approved the Deans request even though Meriwether maintained that he began referring to Doe without pronouns and used Does last name as an accommodation. The Provosts decision remained unchanged.

Merriweather grieved the discipline but was unsuccessful. Left with no other option, he filed suit alleging several claims, including a free speech claim. The district court dismissed his lawsuit, so Meriwether appealed.

The Sixth Circuit first addressed Meriwethers free speech claim and held the First Amendment protects the academic speech of university professors. In reaching its decision, the court looked to the U.S. Supreme Courts ruling inGarcetti v.Ceballos, 547 U.S. 410 (2006). There, the Court held that speech by a public official is only protected if it is engaged in as a private citizen not if it is expressed as part of the officials public duties. But theGarcetticourt did not address speech related to scholarship or teaching. The court decided that prior Supreme Court decisions notGarcetti held that professors at public universities retain First Amendment protections when engaged in scholarship and teaching.

In response, the university argued that the court should not apply Supreme Court decisions that precededGarcetti. The court found this argument unpersuasive because its job is to apply existing Supreme Court precedent unless it is expressly overruled.

The university also argued that any academic freedom exception toGarcettidoes not apply to Meriwethers use of titles and pronouns in the classroom. The court rejected this argument. The court opined that gender identity is a matter of public concern and often arises in classroom discussions. Silencing Merriweathers viewpoint on the matter halted potential robust and insightful in-class discussions. The court concluded:

Thus, the academic-freedom exception toGarcetticovers all classroom speech related to matters of public concern, whether that speech is germane to the contents of the lecture or not. The need for the free exchange of ideas in the college classroom is unlike that in other public workplace settings.

Next, the court had to determine whether Meriwether plausibly alleged his in-class speech was protected by the First Amendment. This analysis posits two questions: (1) was Meriwether speaking on a matter of public concern and (2) was his interest in doing so greater than the universitys interest in promoting the efficiency of the public services it performs through him?

The court held that Meriwether spoke on amatter of public concern because his speech involved gender identity, which has been the recent contention of many passionate political and social debates.

Determining whether this interest outweighed the universitys interest in promoting the efficiency of public services was a taller task. Nonetheless, the court concluded it was.Academic freedom is paramount to the First Amendment, the court said, and that was especially the case here given that Meriwether spoke on a matter of public concern.

The university argued that it has a compelling interest in stopping discrimination against transgender students. But the court rejected this argument because the government does not always have a compelling interest in regulating employees speech on matters of public concern. If it did, the analysis is left meaningless. The court went on:

A schools interest in limiting a teachers speech is not great when those public statements are neither shown nor can be presumed to have in any way either impeded the teachers proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally.

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Meriwether v. Hartop and Meriwether v. Hartop and LGBTQ Rights - The National Law Review