Shawnee State University pays $400k following Sixth Circuit ruling in favor of professor's First Amendment claims in gender pronoun case — FAN 336 | The Foundation for Individual Rights and Expression

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Shawnee State University pays $400k following Sixth Circuit ruling in favor of professor's First Amendment claims in gender pronoun case — FAN 336

Judge Amul Thapar: "If professors lacked free-speech protections when teaching, a university would wield alarming power to compel ideological conformity."
Gavel on court desk

As reported by Alex Oliveira writing for the Daily Mail:

Prof. Nicholas Meriwether (Shawnee State University)

Shawnee State University has agreed to pay $400,000 to professor Nick Meriwether, who sued the school after it punished him for refusing to use a student's preferred pronouns in 2018.

Meriwether, a devout Christian and a professor of philosophy who has taught at Shawnee State for 25-years, sued the school for violating his First Amendment rights.

Shawnee State and Meriwether reached the settlement on Friday after a unanimous ruling by the 6th U.S. Circuit Court of Appeals in March 2021 found that the school had violated Meriwether's right to free speech and free exercise of religion.

Shawnee State University pronoun policy

At the start of the school year, Shawnee State emailed the faculty informing them that they had to refer to students by their "preferred pronoun[s]." Meriwether asked university officials for more details about the new pronoun policy, and the officials confirmed that professors would be disciplined if they "refused to use a pronoun that reflects a student’s self-asserted gender identity." What if a professor had moral or religious objections? That didn’t matter: The policy applied "regardless of the professor’s convictions or views on the subject."

The settlement agreement 

Counsel: John Bursch

According to the Alliance for Defending Freedom:

[1] the university has agreed that Meriwether has the right to choose when to use, or avoid using, titles or pronouns when referring to or addressing students. Significantly, the university agreed Meriwether will never be mandated to use pronouns, including if a student requests pronouns that conflict with his or her biological sex. . . .

[2] the university also agreed to pay $400,000 in damages and Meriwether’s attorneys’ fees.

[3] Additionally, considering the 6th Circuit’s ruling, the university is rescinding the written warning it issued Meriwether in June 2018.

[4] In light of the settlement, ADF attorneys filed a voluntary dismissal of the case. . .

Counsel for Nick Meriwether on appeal: John J. Bursch (Alliance Defending Freedom)

The Sixth Circuit's opinion

The U.S. Court of Appeals for the Sixth Circuit opinion was authored by Judge Amul Thapar in the case of Meriwether v. The Trustees of Shawnee State University (March 2021). Below are some excerpts from that opinion:

Traditionally, American universities have been beacons of intellectual diversity and academic freedom. They have prided themselves on being forums where controversial ideas are discussed and debated. And they have tried not to stifle debate by picking sides. But Shawnee State chose a different route: It punished a professor for his speech on a hotly contested issue. And it did so despite the constitutional protections afforded by the First Amendment. The district court dismissed the professor’s free-speech and free-exercise claims. We see things differently and reverse.

[. . .]

Judge Amul Thapar

To be sure, free-speech rules apply differently when the government is doing the speaking. And that remains true even when a government employee is doing the talking. Thus, in Garcetti v. Ceballos, the Supreme Court held that normally "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."

Here, the threshold question is whether the rule announced in Garcetti bars Meriwether’s free-speech claim. It does not.

Garcetti set forth a general rule regarding government employees’ speech. But it expressly declined to address whether its analysis would apply “to a case involving speech related to scholarship or teaching.” . . .  Although Garcetti declined to address the question, we can turn to the Supreme Court’s prior decisions for guidance. Those decisions have “long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition.” Grutter v. Bollinger.

[. . .]

Together, Sweezy and Keyishian establish that the First Amendment protects the free-speech rights of professors when they are teaching. See also Healy v. James (1972) (“[W]e break no new constitutional ground in reaffirming this Nation’s dedication to safeguarding academic freedom.”); Tinker, 393 U.S. at 506 (“First Amendment rights . . . are available to teachers[.]”).

[ . . . ]

As a result, our court has rejected as "totally unpersuasive" "the argument that teachers have no First Amendment rights when teaching, or that the government can censor teacher speech without restriction."

[ . . . ]

In reaffirming this conclusion, we join three of our sister circuits: the Fourth, Fifth, and Ninth. In Adams v. Trustees of the University of North Carolina–Wilmington, the Fourth Circuit held that Garcetti left open the question whether professors retained academic-freedom rights under the First Amendment. 640 F.3d at 562. It concluded that the rule announced in Garcetti does not apply "in the academic context of a public university." Id.; see also Lee v. York Cnty. Sch. Div., 484 F.3d 687, 694 n.11 (4th Cir. 2007). The Fifth Circuit has also held that the speech of public university professors is constitutionally protected, reasoning that "academic freedom is a special concern of the First Amendment." Buchanan v. Alexander, 919 F.3d 847, 852–53 (5th Cir. 2019). Likewise, the Ninth Circuit has recognized that "if applied to teaching and academic writing, Garcetti would directly conflict with the important First Amendment values previously articulated by the Supreme Court." Demers v. Austin, 746 F.3d 402, 411 (9th Cir. 2014). Thus, it held that "Garcetti does not—indeed, consistent with the First Amendment, cannot—apply to teaching and academic writing that are performed ‘pursuant to the official duties’ of a teacher and professor." Id. at 412.

[ . . . ]

Although Garcetti does not bar Meriwether’s free-speech claim, that is not the end of the matter. We must now apply the longstanding Pickering-Connick framework to determine whether Meriwether has plausibly alleged that his in-class speech was protected by the First Amendment.

[ . . . ]

As we stated in Hardy, "a school’s interest in limiting a teacher’s speech is not great when those public statements ‘are neither shown nor can be presumed to have in any way either impeded the teacher’s proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally.’" 260 F.3d at 681 (quoting Pickering, 391 U.S. at 572–73). The mere "fear or apprehension of disturbance is not enough to overcome the right to freedom of expression." Tinker, 393 U.S. at 508. At this stage of the litigation, there is no suggestion that Meriwether’s speech inhibited his duties in the classroom, hampered the operation of the school, or denied Doe any educational benefits. See Bonnell, 241 F.3d at 824. Without such a showing, the school’s actions “mandate[] orthodoxy, not anti-discrimination,” and ignore the fact that “[t]olerance is a two-way street.” Ward, 667 F.3d at 735. Thus, the Pickering balance strongly favors Meriwether.

[Free Exercise Clause discussion omitted]

Second Circuit rejects Devin Nunes' lawsuit against CNN

This from Larry Neumeister of the Associated Press:

A divided New York federal appeals court rejected on April 14 a defamation lawsuit that former U.S. Rep. Devin Nunes brought against CNN.

In a 2-to-1 ruling, the 2nd U.S. Circuit Court of Appeals in Manhattan upheld a lower-court judge's decision last year to toss out the lawsuit.

The California Republican who left his seat in Congress to lead former President Donald Trump's social media company had alleged CNN intentionally published a false news article in November 2019 and engaged in a conspiracy against him to damage his reputation. He sought over $435 million in damages.

Nunes v. Cable News Network, Inc. (2nd Cir., April 18, 2022) (Judge William Nardini joined by Judge Michael J. Park for the majority and Judge Steven Menashi in dissent) (choice of law determination)

Prof. Erica Goldberg on when book bans are unconstitutional

Excerpt from Prof. Goldberg's widely published article:

Prof. Erica Goldberg

Most books targeted for banning in 2021, says the American Library Association, “were by or about Black or LGBTQIA+ persons.” State legislators have also targeted books that they believe make students feel guilt or anguish based on their race or imply that students of any race or gender are inherently bigoted.

There are also some attempts on the political left to engage in book banning as well as removal from school curricula of books that marginalize minorities or use racially insensitive language, like the popular “To Kill a Mockingbird."

[ . . . ]

Control over public education, in the words of the Supreme Court, is for the most part given to “state and local authorities.” The government has the power to determine what is appropriate for students and thus the curriculum at their school.

However, students retain some First Amendment rights: Public schools may not censor students’ speech, either on or off campus, unless it is causing a “substantial disruption.”

But officials may exercise control over the curriculum of a school without trampling on students’ or K-12 educators’ free speech rights.

There are exceptions to government’s power over school curriculum: The Supreme Court ruled, for example, that a state law banning a teacher from covering the topic of evolution was unconstitutional because it violated the establishment clause of the First Amendment, which prohibits the state from endorsing a particular religion.

School boards and state legislators generally have the final say over what curriculum schools teach. Unless states’ policies violate some other provision of the Constitution – perhaps the protection against certain kinds of discrimination — they are generally constitutionally permissible.

YouTube: 'Like, Share or Cancel: Social Media & The First Amendment'

Florida Bar Media & Communications Law CLE conversation with Eugene Volokh, Eric Goldman, Chris Marchese, and Pamela Marsh, moderated by David Karp. It's mostly about the Florida social media access law, but the discussion included some broader First Amendment questions as well.

Forthcoming book on student dissent in the 1960s

In the late 1960s, protests led by students roiled high schools across the country. As school desegregation finally took place on a wide scale, students of color were particularly vocal in contesting the racial discrimination they saw in school policies and practices. And yet, these young people had no legal right to express dissent at school. It was not until 1969 that the Supreme Court would recognize the First Amendment rights of students in the landmark Tinker v. Des Moines case.

A series of students’ rights lawsuits in the desegregation era challenged everything from school curricula to disciplinary policies. But in casting students as “troublemakers” or as “culturally deficient,” school authorities and other experts persuaded the courts to set limits on rights protections that made students of color disproportionately vulnerable to suspension and expulsion.

Troublemakers traces the history of black and Chicano student protests from small-town Mississippi to metropolitan Denver and beyond, showcasing the stories of individual protesters and demonstrating how their actions contributed to the eventual recognition of the constitutional rights of all students. Offering a fresh interpretation of this pivotal era, Troublemakers shows that when black and Chicano teenagers challenged racial discrimination in American public schools, they helped remake American constitutional law and establish protections of free speech, due process, equal protection, and privacy for students.

New scholarly article on student press freedoms 

Prof. Clare R. Norins (UGA School of Law)

Scholastic journalists across America have long provided vital reporting, commentary, and fresh perspective on issues of public concern to their readers. Never has this been more true than in the current age of dwindling print media, where scholastic journalists at both the high school and post-secondary levels are stepping in to populate what would otherwise be news deserts. Yet the Supreme Court’s decision in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), allows school officials to censor both the content and style of school-sponsored media without offending the First Amendment.

Navroz Tharani (UGA School of Law)

This essay traces the history of student speech rights from the high water-mark of Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1968) to the current era of student press censorship and prior restraint under Hazelwood. The essay synthesizes the results of a growing “New Voices” movement around the country that has successfully enacted statutory protections for scholastic journalists in fourteen states to-date. It then argues for similar legislative protections in all states, using Georgia as an example, and introduces a model “New Voices” Act that draws on lessons learned from the jurisdictions that have already codified student press freedoms.

Scholarly articles: Conklin vs. Strossen on private online censorship

Strossen abstract 
nadine strossen
Nadine Strossen

The United States Supreme Court has continued a speech-protective trend dating back to the 1960s, safeguarding even the most controversial speech from government regulation, including speech that critics of this trend label with the stigmatizing terms “hate speech,” “disinformation,” “misinformation,” “extremist speech,” and “terrorist speech.” In contrast, as dominant online platforms have become increasingly important forums for both individual self-expression and democratic discourse, the platforms have been issuing and enforcing increasing restrictions on their users’ speech pursuant to each platform’s content moderation policies. These restrictions often suppress speech that the U.S. Constitution bars the government from suppressing. As private sector entities, these dominant platforms presumptively have no First Amendment obligation to host any expression or users—unless the platforms should be treated as “state actors,” as multiple experts and litigants recently have argued. Moreover, platforms have their own First Amendment rights to determine which speech or speakers they wish to host. Given these platforms’ outsized influence, government officials, civil society organizations, and individual experts have proposed a range of measures that would shape the platforms’ exercise of their enormous power to censor ideas and speakers on their respective forums.

While many critics complain that dominant platforms are not restricting enough speech, many others lodge the opposite complaint, which is the focus of this Essay. Stressing the goal of facilitating individual freedom of choice, which is the ideal from a free speech perspective, this Essay discusses a range of proposed measures to constrain the dominant platforms’ censorial power with the goal of promoting user agency. It outlines proposed measures that have garnered significant support, and which warrant serious evaluation, but given the complexity of the issues and the risk of unintended adverse consequences, it does not conclusively endorse implementing any proposal.

Conklin excerpt

Being asked to write a response to a Nadine Strossen article on free speech is bittersweet. While it is an honor to play a small role in supplementing Strossen's work in this arena, it is also a daunting task given Strossen's remarkable record on issues of free speech. Generally, response pieces focus on areas of correction and disagreement. As I initially suspected, this would not be the case given how thoughtful and meticulous Strossen's article is. In order to avoid a largely redundant response piece where I simply repeat what Strossen wrote, followed by "I agree," this response primarily focuses on supplementing Strosssen's article by expanding on what she wrote.

Topics covered in this response include recent creative attempts to impose First Amendment protections against censorship on social media platforms; lessons social media platforms can learn about censorship from the government; the importance of clarity in discussing the public/private distinction of when First Amendment protections apply; the notion that free speech provides positive benefits, and is not just the lesser of two evils; a critique of a potential method of promoting free speech online; and the importance of understanding the incentives involved with social media platform censorship. This response is not to be viewed as an advocacy piece for a given policy. Rather, it aims to provide additional information regarding a highly complex issue that does not have clear answers. For this reason, this response may, at times, seem to offer somewhat contradictory statements.

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