On March 22, 2023, the Supreme Court will hear oral arguments in the case of Jack Daniel’s Properties, Inc. v. VIP Products LLC, which will determine the fate of the controversial “Bad Spaniels” rubber dog toy. The Bad Spaniels dog toy was created in 2013 by the Respondent, an Arizona limited liability company in the business of designing and selling dog toys for retail, known commonly as “VIP.”
Besides “Bad Spaniels,” VIP also sells the Tuffy or “Tuffy’s Dog Toy” brand and the “Mighty” line for stronger dogs. The Petitioner, Jack Daniel’s Properties, Inc. is a Delaware corporation, with its principal place of business in California, that owns and licenses the trademarks and trade dress used for wholesale of Jack Daniel’s whiskey.
The Tennessee corn mash whiskey for which Jack Daniel’s is known has been sold domestically since 1875 and was halted briefly by Prohibition. At the trial court level, Senior Judge McNamee of the United States District Court for the District of Arizona granted partial summary judgment upon cross-motions of the parties and the court also entered a permanent injunction, enjoining VIP from commercialization (marketing), distribution, or sale of “Bad Spaniels” after a four-day trial without a jury.
Reviewing VIP’s appeal and the trial record for legal conclusions de novo, the United States Court of Appeals for the Ninth Circuit unanimously found that “Like the greeting cards in [Gordon v. Drape Creative, Inc.], the [‘Bad Spaniels’] dog toy, although surely not the equivalent of the Mona Lisa, is an expressive work.” It applied the well-known Rogers test for expressive works under the Lanham Act and held that the Bad Spaniels dog toy was indeed entitled to First Amendment protection.
In terms of First Amendment law and intellectual property (“IP”),Jack Daniel’s Properties, Inc. v. VIP Products LLC is the most important constitutional IP case that the Supreme Court has reviewed since Matal v. Tam six terms ago. It has the power to abrogate Rogers and decide what parodies may be protected under the Free Speech Clause of the First Amendment, which is now in conflict with the two commonly claimed trademark actions under the Lanham Act. If the Court is divided in its opinion, over two dozen amicus briefs have been filed in the case, including from the United States and from corporations such as Nike, Inc., and from nonprofits such as the Foundation for Individual Rights and Expression.
143 S. Ct. 476 (2022) (granting certiorari to the United States Court of Appeals for the Ninth Circuit). Jack Daniel’s Properties, Inc. v. VIP Products,LLC has been docketed as case number 22-148 by the Supreme Court. See supra note 1. ↑
“In July of 2013, VIP [Products, LLC] introduced the Bad Spaniels squeaker toy. The toy is roughly in the shape of a Jack Daniel’s bottle and has an image of a spaniel over the words ‘Bad Spaniels.’ The Jack Daniel’s label says, ‘Old No. 7 Brand Tennessee Sour Mash Whiskey’; the label on the Bad Spaniels toy instead has the phrase ‘the Old No. 2, on your Tennessee Carpet.’ A tag affixed to the Bad Spaniels toy states that the ‘product is not affiliated with Jack Daniel Distillery.’” VIP Prods. LLC v. Jack Daniel’s Props., Inc., 953 F.3d 1170, 1172 (9th Cir. 2020) (reviewing the United States District for the District of Arizona’s grant of summary judgment). ↑
“In 2014, [Jack Daniel’s Properties, Inc., or “JDPI”] ‘demand[ed] that VIP [Products LLC] cease all further sales of the Bad Spaniels toy.’ VIP responded by filing this action, seeking a declaration that the Bad Spaniels toy ‘does not infringe or dilute any claimed trademark rights’ of JDPI and that Jack Daniel’s trade dress and bottle design are not entitled to trademark protection. The complaint also sought cancellation of the Patent and Trademark Office registration for Jack Daniel’s bottle design. JDPI counterclaimed, alleging state and federal claims for infringement of JDPI’s trademarks and trade dress, and dilution by tarnishment of the trademarks and trade dress.” Id. at 1172–1173 (internal citations omitted). ↑
Complaint, VIP Prods. LLC v. Jack Daniel’s Props., Inc., 2014 WL 4913256 (D. Ariz. Sept. 16, 2014) (No. 2:14CV02057). ↑
“VIP Products sells the ‘Bad Spaniels Silly Squeaker’ dog toy, which resembles a bottle of Jack Daniel’s Old No. 7 Black Label Tennessee Whiskey, but has light-hearted, dog-related alterations. For example, the name ‘Jack Daniel’s’ is replaced with ‘Bad Spaniels,’ ‘Old No. 7’ with ‘Old No. 2,’ and alcohol content descriptions with ‘43% POO BY VOL.’ and ‘100% SMELLY.’ After Jack Daniel’s Properties, Inc. (‘JDPI’’) demanded that VIP cease selling the toy, VIP filed this action, seeking a declaration that the toy did not infringe JDPI’s trademark rights or, in the alternative, that Jack Daniel’s trade dress and bottle design were not entitled to trademark protection. JDPI counterclaimed, asserting trademark infringement and dilution.” VIP Prods. LLC v. Jack Daniel’s Props., Inc., 953 F.3d 1170, 1172 (9th Cir. 2020) (reversing judgment on the dilution claim, ordering vacatur on trademark infringement, and remanding for further proceedings in light of the First Amendment interests owed to “Bad Spaniels”). ↑
Answer and Counterclaims of Defendant and Counterclaimant, VIP Prods. LLC v. Jack Daniel’s Props., Inc., 2014 WL 12936100 (D. Ariz. Dec. 3, 2014) (No. CV 14-02057). See also Jack Daniel’s Properties, Inc., Born to Make Whiskey, Our Story, https://www.jackdaniels.com/en-us/our-story (last visited Mar. 8, 2023). ↑
“Since 1875, Jack Daniel’s Tennessee whiskey has borne the registered trademarks JACK DANIEL’S and OLD NO. 7. Jack Daniel’s also has a registered trademark for its three-dimensional configuration of a square-shaped bottle with the embossed signature of ‘Jack Daniel’ . . . Approximately 98% of consumers expressed awareness of the Jack Daniel’s Brand.” Petition for a Writ of Certiorari at 9, Jack Daniel’s Props., Inc. v. VIP Prods. LLC, 2022 WL 3561781 (S. Ct. Aug. 5, 2022) (No. 22-148). ↑
See U.S. Const. amend. XVIII (repealed by the Twenty-first Amendment, effective Dec. 5, 1933). ↑
VIP Prods. LLC v. Jack Daniel’s Props., Inc., 2016 WL 5408313, at *1–2 (D. Ariz. Sept. 27, 2016) (No. CV-14-2057). ↑
See VIP Prods. LLC v. Jack Daniel’s Props., Inc., 953 F.3d 1170, 1173, 1176 (9th Cir. 2020) (vacating the permanent injunction against appellant, inter alia). ↑
Judge Hurwitz delivered the opinion of the court, and Judges Miller and Tashima concurred. See id. at 1171–72. ↑
909 F.3d 257 (9th Cir. 2020). There was no petition or order for a rehearing en banc in the Ninth Circuit, and the Court granted Jack Daniel’s petition for a writ of certiorari after the Ninth Circuit affirmed the lower court’s grant of summary judgment. See supra note 2; VIP Prods. LLC v. Jack Daniel’s Props., Inc., 2021 WL 5710730 (D. Ariz. Oct. 8, 2021) (No. CV-14-020507) (reviewing the matter on remand and granting summary judgment to VIP), aff’d, VIP Prods. LLC v. Jack Daniel’s Props., Inc., 2022 WL 1654040 (9th Cir. Mar. 18, 2022) (No. 21-16969). ↑
See Rogers v. Grimaldi, 875 F.2d 994, 999 (2d Cir. 1989) (“We believe that in general the [Lanham] Act should be construed to apply to artistic works only where the public interest in avoiding consumer confusion outweighs the public interest in free expression. In the context of allegedly misleading titles using a celebrity’s name, that balance will normally not support application of the Act unless the title has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless the title explicitly misleads as to the source or the content of the work.”).
The Rogers test was adopted by the Ninth Circuit in the case of Mattel, Inc. v. MCA Records, Inc., 296 F.3d 849 (9th Cir. 2022). “[The Rogers court] concluded that literary titles do not violate the Lanham Act ‘unless the title has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless the title explicitly misleads as to the source or the content of the work.’ We agree with the Second Circuit’s analysis and adopt the Rogers standard as our own.” Id. at 902 (internal citations omitted) (opinion of Kozinski, J.) (finding that MCA Records, Inc.’s use of BARBIE in its song “Barbie Girl” was a parody entitled to First Amendment rights). ↑
15 U.S.C. § 1051 et seq. Trademark infringement is a cause of action under 15 U.S.C. § 1114. Trademark dilution (by tarnishment or “blurring” a mark) is an additional cause of action under 15 U.S.C. § 1125. Fair use is codified as a legal defense under 15 U.S.C. § 1115 for when a trademark is registered nationally. See id. § 1115(b)(4). ↑
“We affirm the district court’s summary judgment in favor of JDPI on the issues of aesthetic functionality and distinctiveness. However, because the Bad Spaniels dog toy is an expressive work entitled to First Amendment protection, we reverse the district court’s judgment on the dilution claim, vacate the judgment on trademark infringement, and remand for further proceedings.” VIP Prods. LLC v. Jack Daniel’s Props., Inc., 953 F.3d 1170, 1172 (9th Cir. 2020). ↑
The Free Speech Clause is included in the First Amendment to the United States Constitution and generally protects commercial speech from abridgement or censorship: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. Const. amend. I; see David Schultz, Commercial Speech, The First Amendment Encyclopedia, https://www.mtsu.edu/first-amendment/article/900/commercial-speech (last visited Mar. 8, 2023). ↑
Trademark is classified as “intellectual property,” but it draws its constitutional power from the Commerce Clause. See U.S. Const. art. I, § 8, cl. 3; The Trade-Mark Cases, 100 U.S. 82 (1879) (holding that Congress lacked power under the “Intellectual Property Clause” of Article I, § 8, cl. 8 to provide for trademark protection). “[The Congress shall have power . . .] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const. art. I, § 8, cl. 3 (emphasis added). ↑
The Matal Court invalidated a provision of the Lanham Act that prohibited the registration of “disparaging” or offensive trademarks. See id. at 223 (holding unconstitutional 15 U.S.C. § 1052(a)). Matal concerned an Asian-American rock band called “The Slants,” who were denied federal trademark registration because their mark was a derogatory term. Id. “But the band members believe that by taking that slur as the name of their group, they will help to “reclaim” the term and drain its denigrating force . . . We now hold that [§ 1052(a)] violates the Free Speech Clause of the First Amendment. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.” Id.↑
See Petition for a Writ of Certiorari at I, Jack Daniel’s Props., Inc. v. VIP Prods. LLC, 2022 WL 3561781 (S. Ct. Aug. 5, 2022) (No. 22-148) (Questions Presented: “1. Whether humorous use of another’s trademark as one’s own on a commercial product is subject to the Lanham Act’s traditional likelihood-of-confusion analysis, or instead receives heightened First Amendment protection from trademark-infringement claims. 2. Whether humorous use of another’s mark as one’s own on a commercial product is ‘noncommercial’ under 15 U.S.C. § 1125(c)(3)(C), thus barring as a matter of law a claim of dilution by tarnishment under the Trademark Dilution Revision Act.”); see also Dorsney & Whitney LLP, So, Nine Justices Walk into a Bar . . . SCOTUS to Consider Role of Humor in Infringement and Dilution Claims, JDSUPRA (Jan. 9, 2023), https://www.jdsupra.com/legalnews/so-nine-justices-walk-into-a-bar-scotus-9208322/. ↑
No one wonders about the strength of the First Amendment’s speech protections with the same level of intensity as someone who has just uttered an unpopular opinion or statement. Growing up, school children often defend their words by alleging that in the United States, we can say whatever we want because of the First Amendment’s right to freedom of speech. Unsurprisingly, the extent of First Amendment protections is much more complicated than that simple phrase of “freedom of speech.” First Amendment jurisprudence “has been called labyrinthine for good reason. It consists of overlapping doctrines, maddeningly inconsistent rulings and an uncertain future.”
This Comment will examine the scope of the First Amendment for higher education, particularly for professors at public colleges and universities. Can professors insist on calling students pronouns contrary to the students’ stated preferred pronouns despite policies and high-ranking administrators requiring professor to comply? Should the answer to that question depend on the jurisdiction in which the professor is teaching?
In Meriwether v. Hartop, the Sixth Circuit joined the circuit split regarding which freedom of speech test applies to higher-level teacher speech for First Amendment purposes. The breadth of freedom of speech on campuses is a recurring issue and a highly litigated matter. Until there is a consistent test that courts can apply, and that professors can rely upon, the confusion surrounding professors’ protections and academic freedom will continue.
As discussed in Part III, the Supreme Court has determined that Garcettivs. Ceballos is the controlling test in public employment settings. However, the Supreme Court refused to confirm which test would apply for higher education by merely referencing that Garcetti may not be the adequate test for professors. Since that opinion, there has been confusion and inconsistency among the appellate courts, as some interpreted Garcetti to apply to all employment sectors, including professors at colleges and universities, and some circuits interpreted Garcetti not to apply to professors and therefore apply a different standard instead.
While freedom of speech on campus is commonly analyzed, the focal point is typically on the students’ freedom of speech rights in the classroom or on campus property when engaging in speech such as protests. In contrast, this Comment looks at the extent of public university professors’ rights rather than the rights of students. Specifically, this Comment focuses on higher education, as opposed to teachers at or below secondary education. Given the United States’ tense and ever-changing sociopolitical climate over the last two years, the breadth of the First Amendment is once again at the forefront of people’s minds. Are our First Amendment rights in jeopardy? How far does this protection reach? How much protection is too much?
This Comment consists of six parts. Part I offers a brief overview of the First Amendment and its protections. Part II discusses the public policy of professors holding broad freedom of speech rights and the importance of academic freedom. In Part III, this Comment reviews the controlling cases that embody the freedom of speech tests in public employment. Next, Part IV reviews the inconsistencies in how different circuits are applying these cases to develop freedom of speech tests for higher education at colleges and universities. Further, Part V discusses why the gaps in Garcetti make Pickering the more appropriate standard for professors’ speech and why courts must adopt an academic freedom exception if they are going to apply Garcetti to all employment sectors. Finally, Part VI utilizes the Sixth Circuit’s application of the Garcetti test in its case Meriwether v. Hartop to demonstrate why the Pickering test is preferable and why the Supreme Court must step in to clarify the appropriate standard.
I. Background: First Amendment
The First Amendment not only guarantees freedom of speech, press, and religion, but also, it is a symbol of independence in the United States. When the United States achieved independence from England, the Bill of Rights deliberately included the freedom of speech as the “first constitutional guarantee” and was later “ratified as part of the Constitution” along with the rest of the Bill of Rights on December 15, 1791.
Freedom of speech has rich roots in the United States, and this constitutional provision has been “widely copied and admired” in other countries and served as a catalyst for “the subsequent progress towards freedom of speech” elsewhere. The freedom of speech was at the forefront of the founding fathers’ minds at the time of independence because there was no such guarantee in Britain and the founders were framing a democratic government for the United States. Under English law, which governed the United States prior to independence, there were exceptions to the freedom of speech, and there was no “positive guarantee of freedom of speech” except under the parliamentary privilege.
After Gitlow v. New York, a milestone case for American jurisprudence, the First Amendment’s protection extended to all fifty states through the incorporation doctrine of the Fourteenth Amendment, which “protects the citizen against the State itself and all of its creatures.” Not only is the First Amendment symbolic of the United States independence from Britain, but also, it is crucial to this country’s democratic form of government. Without the explicit guarantee of the freedom of speech, no other fundamental human right can be advocated for, no democratic system of government or constitutional system of government would function properly, and “no potential for exposure of wrongdoing, particularly in high places,” would be permitted.
Freedom of speech protects the political debate on which a democracy survives. Without the freedom of speech and resulting political debate, “there can be no check on potential tyrants and, so, no guarantee of constitutional government and no guarantee of maintenance of freedom of speech.” In a well-known Supreme Court First Amendment case, the Court stated that “if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, or other matters of opinion or force citizens to confess by word or act their faith therein.”
Aside from applying in all fifty states, the First Amendment has wide coverage in other senses as well. The First Amendment protects more than just verbal speech; it also protects symbolic speech, which is “nonverbal, nonwritten forms of communication.” Importantly, the First Amendment protects against content discrimination, which prohibits restrictions on people speaking on certain subject matter. While content discrimination is disfavored, viewpoint discrimination is disfavored even more because it restricts particular ideas and opinions within certain subject matter.
II. The Intersection of the Freedom of Speech and Academic Freedom–Public Policy Requires Significant Speech Protections for Professors
Since education and academia contribute significantly to public debate, a lack of academic freedom threatens citizens’ ability to debate controversial issues. Professors hold a unique role in society because they are responsible for encouraging introspection and disseminating information, ideas, and knowledge upon citizens so that the public can benefit from the wealth of knowledge and progress as a country. Notably,
teaching, scholarship and most, if not all, research, involves the comparatively wide dissemination of information, it is inextricably bound up with speech. Since the pursuit of truth itself involves discussion, any restriction on freedom of speech is a restriction on the pursuit of truth. Consequently, restriction of freedom of speech automatically involves a restriction of academic freedom, except where academics are given some special freedom of speech, not available to members of society in general.
Appropriately, teaching, scholarship, and research are identified as the core duties of professors, and these are the core duties that academic freedom seeks to protect. The unique role of professors, and the unique difficulties and situations professors face, require safeguards; this concept led to what is commonly referred to as “academic freedom.” Academic freedom is premised “on the idea that the free exchange of ideas on campus is essential to good education.” It has been defined as the “freedom of a teacher to discuss or investigate any controversial social, economic, or political problems without interference or penalty from officials, organized groups, etc.”
In 1915, the American Association of University Professors (AAUP) drafted the Declaration of Principles on Academic Freedom and Academic Tenure. In this Declaration, academic freedom was “divided into ‘freedom of inquiry and research; freedom of teaching within the university or college; and freedom of [extramural] utterance and action.’” A fourth principle was later added: freedom of intermural utterance and action, which entails the freedom to participate in and comment on how a school is administered. However, the AAUP “did not advocate for unlimited faculty rights.” Instead, “academic freedom was tied to professional duties and responsibilities.”
Because academia is “disproportionately concerned with new ideas and innovations, all of which inevitably challenge existing views,” education and academia are particularly and significantly “vulnerable to any lack of freedom of speech.” This vulnerability arises because pre-existing “entrenched interests” are threatened by, and therefore resist, “the challenge posed by new ideas.” In the United States, our public education system, “if faithful to the ideal of secular instruction and political neutrality, will not be partisan or enemy of any class, creed, party, or faction.”
The United States’ prohibition on content and viewpoint discrimination is essential to the academic setting because professors must be able to lecture on a variety of different viewpoints and ideologies, even if the viewpoints and opinions are not the most popular or if the majority of the students in the classroom do not agree. That is the essence of a debate and a democratic form of government. Freedom of speech and academic freedom are necessary to a “proper political debate.”
Beyond the importance of a proper political debate, the intersection of freedom of speech and professors’ academic freedom is important for a plethora of other developments, progressions, and civic functions. For example, until the seventeenth century, it was commonly taught in schools that the Sun revolved around the Earth. Without the freedom to challenge viewpoints and lecture on alternative theories and ideologies, societies would make little progress. This was shown to be true during the “anti-revolution movement of the 1920s” and the Scopes trial.
Professors’ speech protections must be closely guarded given the unique role that professors hold, which can only be properly performed if professors know that they are protected by the First Amendment. Removing professors’ freedom of speech rights runs the risk of professors switching occupations if they are subjected to lawsuits or employment termination each time they lecture to students or publish an academic article as encouraged by universities. Aside from the United States recognizing the inherent value of education, education leads to progress and development, which benefits society. However, this cannot come to fruition if professors are changing careers out of fear.
Without the freedom of speech, thoughts would be stagnant and cease to progress in many areas, including academically, scientifically, politically, and even socially. However, academic freedom is not absolute protection for professors. Following the thought process of the AAUP, professors must “act professionally in their scholarly research, their teaching, and their interactions with students and other faculty.” This is ensured by universities’ policies and procedures that “safeguard both students and the academic integrity of the institutions and disciplines.” Acting professionally has benefits for the reputation and integrity of the larger college or university, and it also contributes to the professor’s reliability, authority, and believability from the perspective of the student. This concept that academic freedom is not absolute will be addressed later when analyzing the facts of Meriwether.
III. Pickering, Connick, and Garcetti–The Focal Cases That Have Developed the Freedom of Speech Test
While the contours of the freedom of speech have been developed through a number of influential cases, this Comment will focus on three main cases that lay the foundation for the freedom of speech, especially in the public employment context. It is largely from these three cases that the different appellate circuit courts derive the test that they apply to professor speech in higher education.
In Pickering v. Board of Education, a high school teacher was fired for submitting a letter to a local newspaper that criticized the school. The Supreme Court found that the teacher’s freedom of speech rights were violated because “teachers and other public employees do not relinquish their First Amendment rights to comment as citizens on matters of public interests.” Thus, Pickering established a right to comment on matters of public interest, and it further created a balancing test between the teacher’s freedom of speech interests and the employer’s interest in regulating its employees. The Court reasoned that “teachers are, as a class, the members of a community most likely to have informed and definite opinions as to how funds allotted to the operations of schools should be spent.” While Pickering established the governing test, the opinion did not clearly specify what constituted a matter of public concern.
Fifteen years later, the Supreme Court elaborated on the test for whether speech was on a matter of public concern in Connick v. Myers. In Connick, an assistant district attorney was fired for distributing a questionnaire around the office regarding morale within the office. The Supreme Court established that when determining whether “an employee’s speech addresses a matter of public concern,” the courts must look at the “content, form, and context of a given statement.” In Connick, the content, form, and context were unrelated to “any matter of political, social, or other concern to the community.” The speech was on a matter of personal interest, not public interest, and was not protected by the First Amendment. Thus, Connick provided clarity to the freedom of speech test given in Pickering: courts must look at the content, form, and context for a concern to the community, and the interest must not be personal.
After Pickering and Connick, the prevailing First Amendment test was still the two-part Pickering test, which requires that (1) an employee speak about a matter of public concern, and (2) a balancing of the employee’s and employer’s interests.Connick supplemented the first requirement by adding that when determining whether a matter is of public concern, the court should look at the content, form, and context of the statement and whether it was related to any political, social, or other concern to the community. A personal interest would not suffice. While Pickering was bolstered by Connick and other First Amendment cases, this progressing foundation was rattled by the Garcetti opinion.
In Garcetti v. Ceballos, the Supreme Court added an additional, third step to the freedom of speech analysis in Pickering for employment contexts, namely that the public employee must be speaking outside of her official, professional duties for the speech to be protected. Official duties include those that the employee is “paid to perform.” When one speaks outside of one’s official duties, they are speaking as citizens and the speech is protected. This additional third step is where the circuits diverge for the freedom of speech test that is applied at the university level.
In Garcetti, a deputy district attorney wrote a memorandum to his supervisors regarding a legal issue. The Supreme Court held that this speech was not protected because Garcetti was acting within his duties as deputy district attorney and was not speaking as a citizen. By requiring this third prong for employees, “the Supreme Court suggested that First Amendment protections do not attach insofar as individuals are speaking as employees rather than as citizens.”Importantly, the Garcetti Court expressly reserved judgment as to whether the newly espoused third prong would apply in a public university setting. This was in response to Justice Souter’s dissenting opinion that the “official duties” rule would “imperil First Amendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write ‘pursuant to . . . official duties.’” Justice Souter’s dissent recognized that “universities occupy a special niche in our constitutional tradition” given the importance of public education and the “expansive freedoms of speech and thought associated with the university environment.” Thus, the Court left the underlying question unanswered—does Garcetti apply to public universities? Is there an academic freedom exception? If Garcetti doesn’t apply, is Pickering the appropriate standard? Given this gray area, circuits have applied different First Amendment tests to university professors’ speech.
IV. Current Circuit Split—Inconsistent Freedom of Speech Test Applied to Professors Depending on the Jurisdiction
The Sixth Circuit has joined the circuit split surrounding the prevailing test for professor speech, which puts pressure on the Supreme Court to clarify the confusion and establish a consistent test across the United States for this Constitutional guarantee. The Fourteenth Amendment incorporates the First Amendment so that it applies to the states, and it should apply evenly to the states. The constitutional guarantees should not be more protective in one state than another state. The United States operates on the premise that “all men are created equal”; this should mean that citizens in New York are entitled to the same protections as the citizens in Texas, Maryland, or any other state. Since the First Amendment for professors has not yet achieved that level of consistency, this Comment will now turn to the different approaches that the circuits have adopted for professor speech at public universities and colleges.
In Weintraub v. Board of Education, the Second Circuit adopted the Garcetti test, which adds the third prong to Pickering and requires one to speak as a citizen outside of one’s official job duties to be protected by the First Amendment. Similarly, the Seventh Circuit in Renken v. Gregory hesitantly applied the Garcetti test and determined that a professor was acting within his “teaching, research and service responsibilities” when he “took issue” with the way the funds from a grant were to be allocated by the university.
Alternatively, the Ninth and Tenth Circuits have taken approaches similar to one another and have chosen Pickering as the appropriate standard for professors. In Demers v. Austin, the Ninth Circuit held that “Garcetti does not apply to ‘speech related to scholarship or teaching’” and rather Pickering is the test that applies. Similarly, the Tenth Circuit held that the appropriate standard is the test articulated in Pickering for when “a professor was claiming his academic freedom was violated.”
V. Why Pickering is the Superior Freedom of Speech Test Over Garcetti for Securing and Maintaining Academic Freedom
While speaking as a citizen and outside of an employee’s official duties may be an appropriate standard for other employment settings, it directly contradicts the values of the public education system. Teaching, scholarship, and research are official duties of a professor, which means that while exercising these functions, professors would not be speaking as citizens. These are the functions professors exercise that we want to protect as a society. The Garcetti third prong would heavily favor college and university administrations, while leaving professors to wonder about the extent of their speech rights.
Given our country’s history and tradition of valuing not only the freedom of speech, but also our public-school system, Pickering is a better test for public universities. Pickering does not require that the professors prove that they were speaking as citizens, so the core functions of teaching, scholarship, and research would still be protected by the First Amendment.
If Garcetti is to be the appropriate standard, then there must be an academic freedom exception. Otherwise, professors at public universities will fear each lecture. Further, if our nation does not protect professors from either losing their job or from facing litigation, then professors will actively seek out jobs at private universities, or jobs outside of higher education altogether, and our public education system will deteriorate. “The professor must be assured beforehand that she is free to speak, and heightened First Amendment scrutiny gives her that assurance.”
When creating an exception to the third prong of the Garcetti test, it is often hard to decide where to draw the line. What is academic freedom? Would the academic freedom exception apply to all university employees, or just those who teach doctrinal courses? What about employees at trade schools? Would this exception apply to an individual who gives a guest lecture? Does the audience of the speech matter in determining whether the exception would apply?
Pickering is a more desirable test for professors at colleges and universities because these ambiguous questions do not need to be answered since there is no third prong and thus no need for an exception. Given the confusion and inconsistencies surrounding the circuit courts regarding university speech already, there is a need for clarity. Creating a Garcetti exception would likely create more confusion and leave these questions unanswered, leading to even more division between the circuit courts. The Pickering framework is clear—the professor must speak on a matter of public importance and pass the balancing test.
However, for the courts that recognize the Garcetti test for all public employment sectors, including higher education, it is essential that those courts recognize the public policy of academic freedom and subject professors at colleges and universities to a different freedom of speech test than is used for other employment sectors. It is essential to have a system that protects professors. Not only are professors speaking daily for lectures but they also are required to publish a large quantity of material to advance their career and be considered for tenure. While academic freedom is “broad and permissive,” the existing case precedent, including Pickering, Connick, and Garcetti, “do not adequately protect academic freedom.”
At the university level, tenure creates even more academic freedom and job security for professors, yet it is difficult to achieve given the amount of scholarship that professors are required to produce in order to achieve tenure status. Despite the pros and cons of the tenure system, tenure is another means by which academic freedom can be provided. Tenure “does not grant a teacher a job for life but simply protection from arbitrary firing and retribution; it safeguards academic freedom; it decreases turnover and creates a more stable learning environment for students.” Since the First Amendment is needed to protect the untenured professor who is publishing the amount of material that is required to achieve tenure—without the fear of retribution for the words published—the First Amendment and the protections from tenure go hand in hand for academic freedom.
VI. The Sixth Circuit Case Meriwether v. Hartop Highlights the Issue of Defining the Breadth of an Academic Freedom Exception & Which Functions Must be Protected as Unique Roles of a Professor
Meriwether provides further insight on why Pickering is the more appropriate test for professors’ speech. Looking at the current circuit split regarding whether Pickering or Garcetti applies, the Sixth Circuit is one which turns to the academic freedom exception to Garcetti, and therefore, the concept of “academic freedom” must be analyzed closer. Attempting to pinpoint—and then apply—exactly what encompasses academic freedom creates more ambiguity. The issue of what constitutes academic freedom, the scope of that freedom, and which academic duties we are trying to protect is essential. It is no surprise that the circuits have varied in the way that they consider different roles and duties of university professors.
The core duties of a professor, such as research, scholarship, and teaching, should be included in academic freedom because these duties directly involve the dissemination of ideas and the passing on of knowledge and viewpoints to students. These have been the core duties of professors for generations. The Meriwether case has, however, sparked a debate over whether administrative duties such as classroom management should receive special First Amendment rights under the academic freedom ideal as the other core duties enjoy. Are administrative duties in the classroom unique to academia? Does a professor’s method for roll call at the beginning of class impact the dissemination of information? How does a teacher’s administrative duties differ from the administrative duties of other professions? These questions direct one to look at the Sixth Circuit’s decision in Meriwether and the implications that the scope of the academic freedom can have.
A. Review of the Sixth Circuit Case, Meriwether v. Hartop
In Meriwether, the plaintiff Nicholas Meriwether, a philosophy professor at the public college Shawnee State University (“Shawnee State”), was terminated from employment for refusing to call a transgender student by the student’s preferred pronouns given the professor’s conflicting religious beliefs. Shawnee State had a standing policy that required professors to call students by their preferred pronouns. The student was enrolled in Meriwether’s Political Philosophy course. Meriwether addressed students in class by “Mr.” or “Ms.” and improperly called the student “sir.” The student corrected Meriwether after class and requested to be called by female pronouns.
Since Meriwether refused to comply with Shawnee State’s policy regarding pronouns, the Dean of the College of Arts and Sciences told Meriwether to eliminate sex-based references for all of the students in the class, not just the one transgender student. Meriwether resumed calling all of the other students by “Mr.” or “Ms.” but singled out the transgender student and called the student by her last name. Soon after, Meriwether accidentally called the student “Mr.” and then proceeded to call the student by her last name for the remainder of the semester. Meriwether received multiple warnings and visits throughout the semester demanding that he follow the school policy and call the student by female pronouns or stop using gender-related titles for all students, thus treating the students in the class equally.
B. Garcetti Academic Freedom Exception Applied to the Facts of Meriwether
The Sixth Circuit joined the Fourth, Fifth, and Ninth Circuits and determined that there is an academic freedom exception to Garcetti; therefore, the third prong, which was developed in Garcetti, does not apply to higher-level education in the Sixth Circuit. As previously mentioned, without an exception, professors’ speech would not be protected because their lectures and other core functions of teaching, scholarship, and research are directly within their ordinary, official duties and therefore would not be citizen speech. For that reason, the Sixth Circuit incorporates an academic freedom exception to award professors the guarantees of the First Amendment. The breadth of academic freedom and what actions contribute to the core functions of teaching, scholarship, and research are at debate.
Shawnee State argued that a professor’s use of titles and pronouns is not protected under the academic freedom exception to Garcetti because it is unrelated to the “substance of classroom instruction.” The use of pronouns and titles was not the subject of the course, nor was this speech used for an academic purpose. The Meriwether court, however, stated that gender identity is a “matter of public concern that ‘often’ comes up during class discussion in Meriwether’s” courses. Despite this fact, there was no showing that pronouns and titles are a substantive topic of discussion for the current course that the transgender student was taking. The Meriwether court held that the exception to Garcetti for academic freedom “covers all classroom speech related to matters of public concern, whether that speech is germane to the contents of the lecture or not.”
Therefore, the Sixth Circuit answered the scope of the academic exception question with a broad answer: it covers almost everything, regardless whether the questioned speech was contents of a lecture. This broad approach gives professors a degree of immunity that is unwarranted for functions outside of teaching, scholarship, and research. In Meriwether, the way that the professor called roll or addressed the students was not the subject of his class or a lecture, and professors are no different from other employees in other employment sectors in how they address colleagues, co-workers, or clients.
Professors deserve special attention given their unique role in society—that is why either Pickering or Garcetti with an academic freedom exception is an appropriate test. If the professor is not performing tasks required by this unique role, however, such as when the professor is not performing his or her core duties, then the professor is no different than an employee or worker in a different employment sector. There should not be special treatment. If the professor’s speech is not unique to a function that academic freedom seeks to protect, then the professor should be subject to the third prong in Garcetti, like the Supreme Court ruled was the appropriate test for all other public employees.
For example, simple administrative tasks that are not meant to communicate a lesson, ideology, or knowledge are not unique to a professor. All employment sectors deal with administrative functions; this is not unique to higher education. Therefore, if a professor is performing an administrative task rather than a task that furthers education or academia, then Garcetti is the more appropriate test.
Interestingly, the Meriwether court addresses some instances where the professor’s classroom speech falls outside of the Garcetti exception because it is a “non-ideological ministerial task” not protected by the First Amendment. One example that the Sixth Circuit includes as a ministerial task is a professor calling roll before class begins. The court says that the facts of Meriwether differ from calling roll because pronouns “carry a message.”
However, it is highly questionable whether there is any difference between calling on individual students during the class period and calling roll at the beginning of class—a task that the court agreed is not protected speech. A professor could call roll at the beginning of the class by using pronouns as well, such as calling the students “Mr.” or “Ms.” while calling roll. However, under the Sixth Circuit’s reasoning, only calling roll is speech not protected by the First Amendment. Whether using pronouns at the beginning of class or during class, these are administrative functions. To hold otherwise is splitting hairs. Many, if not all, employment sectors require communication between colleagues which implicates the use of pronouns or titles. This is not unique to a professor.
Further, the court differentiates the use of pronouns during the class from calling roll at the beginning of class because the use of pronouns “carr[ies] a message.” It is questionable whether the use of pronouns during the class when calling on a student carries a message. If the professor was intentionally using pronouns or titles to further teaching, scholarship, or research, then pronouns can certainly carry a message. To provide one example, this may be the case in a gender studies course. To qualify for the academic freedom exception, the speech should convey an academic message, not just a message in general. Arguably all speech conveys a message—that does not mean that a professor can get away with uttering anything.
While pronouns can certainly convey an academic message, they can also be a mundane part of life and way that people communicate. There is not necessarily an academic message conveyed every time pronouns are uttered. The academic freedom exception is meant to shield professors so that they can adequately contribute to our public education system. It is not to serve as an absolute shield for tasks and functions that do not serve the goal of academia.
While the Sixth Circuit joins the Ninth Circuit in creating an academic freedom exception to Garcetti, it does not necessarily join the Ninth Circuit in what activities constitute academic freedom. The Ninth Circuit affirmed Hong v. Grant, which held that the administrative functions of a professor were subject to the third prong of Garcetti—whether the professor was acting within his official duties—and therefore found that the professor’s administrative concerns were not protected by the First Amendment because they were in the course of his official duties. The court reasoned that to hold otherwise for administrative functions “would require endless judicial supervision of the decisions university administrators must make on a daily basis to ensure the efficient and effective management of their institution.” The Ninth Circuit therefore recognizes that administrative acts and speech do not carry the same public interest as the core duties of professors—teaching, scholarship, and research—and that universities and colleges have the right to oversee other functions for the sake of efficiency and effectiveness.
As previously mentioned, academic freedom is not an absolute protection. Michael LeRoy conducted research that shows that many professors may believe that “all speech in their classrooms, publications, and public announcements is constitutionally protected”; however, academic freedom is narrower than that. Even if one is protected by the freedom of speech, the degree of protection “has not been specified and the First Amendment protection may be overridden if the speech causes disruption.” It is difficult to decide where to draw the line for an academic freedom exception to the Garcetti test, but nonetheless, a line must be drawn.
C. Speech on a Matter of Public Concern Applied to the Facts of Meriwether
Without the ambiguous academic freedom exception to Garcetti, which adds an additional, unsettled step to the analysis, the test for whether professor speech is protected is a lot more straightforward. Regardless of whether a court is applying Pickering or Garcetti, the other steps from Pickering must still be satisfied, including that the speech be on a matter of public concern. Regarding whether the professor spoke on a matter of public concern, the Sixth Circuit says that the “pronoun debate is a hot issue” and when Meriwether “waded into the pronoun debate, he waded into a matter of public concern.” Although gender identity and the use of conforming pronouns are matters of public concern, that was not the subject matter of Meriwether’s lecture nor was Meriwether intending to enter that particular debate on some of the occasions, as he admitted that he used the wrong pronouns by accident. This shows that Meriwether was not intending to speak on an ideological matter at all but rather was exercising a nonideological administrative function, which as mentioned above should not be included in the academic freedom exception.
Further, looking at the Connick addition to the Pickering rule, the content of the speech must be on a matter of a public concern and not a private concern. The Sixth Circuit recognized this rule in Hardy v. Jefferson Community College, when the court provided that when determining whether the speech was a matter of public concern, it must “determine ‘the point of the speech in question . . . [because] [c]ontroversial parts of speech advancing only private interest do not necessarily invoke First Amendment protection.’”
Meriwether was speaking on a matter of private concern. He was not advocating for the general population nor on behalf of the school or any entity larger than himself. Meriwether had a private religious objection to a student’s preferred pronouns. This was a private belief held by the professor and was unrelated to the course curriculum or any teaching, scholarship, or research for that matter. Given the Supreme Court rule from Connick, Meriwether’s private religious objection was not a matter of public concern.
D. Balancing Test – Applied to the Facts of Meriwether
Lastly, under either the Garcetti or Pickering freedom of speech test, the final step to the analysis is a balancing test between the professor’s freedom of speech interests and the university’s interest in regulating its employees. There are often strong arguments on both sides. Here, the professor argues that he has interests given the history of protecting teacher speech and sharing different viewpoints in the classroom. Alternatively, Shawnee State argued that it has an interest in stopping discrimination against transgender students. The Sixth Circuit determined that the balancing test weighed in favor of Meriwether.
The Sixth Circuit reasoned in the opinion that
[i]f professors lacked free-speech protections when teaching, a university would wield alarming power to compel ideological conformity. A university president could require a pacifist to declare that war is just, a civil rights icon to condemn the Freedom Riders, a believer to deny the existence of God, or a Soviet émigré to address his students as “comrades.”
The Sixth Circuit’s reasoning is arguably an alarmist approach and exaggerates the effect that university policies and procedures have on the content of a professor’s lecture or the ideologies that the professor is allowed to share with the students.
First, the court’s hypothetical is premised on a professor losing First Amendment rights when teaching. It is arguable whether Meriwether’s use of pronouns during the class constitute “teaching.” Second, this reasoning confuses the difference between restricting speech and compelling speech. Here, Shawnee State merely restricted speech that was not related to the content of the lecture due to conflicting university policies. Shawnee State further gave Meriwether the option to call all of the students a gender-neutral option. It did not even require Meriwether to use the student’s preferred pronouns, merely that he did not single out the one student.
While acknowledging that the First Amendment is a bedrock principle of our Constitution and an important guarantee to protect, Shawnee State was not compelling speech. This is evidenced by the numerous options that the professor was given to avoid compelling his speech or compelling him to conform to a particular ideology or viewpoint. Here, Shawnee State was attempting to forbid certain speech, which is different than attempting to compel certain speech. As mentioned above, academic freedom is not an absolute right for professors, and it yields to the responsibility of the professor to act professionally and abide by university policies and protocols.
1. Balancing Test—Common Arguments for the Professors
As the arguments are looked at in further detail, the task of weighing the interests becomes more difficult. Professors commonly argue in freedom of speech cases that their constitutional guarantees and protections in the academic setting are crucial for the marketplace of ideas and for various ideologies to be discussed, learned, and fostered. The United States strongly prohibits viewpoint discrimination, which prohibits only certain viewpoints to be discussed about a certain topic.
University professors hold a unique role that must be protected given their task of educating not only their students but also the general public on “their area of expertise.” Professors “directly contribute to ‘free and open debate’ on a myriad of scientific, political, religious, sociological, and philosophical matters” so that the public can make informed decisions on important matters. This civic and humanitarian duty to educate the public depends on the guarantees of the First Amendment “to protect the teaching and scholarship that makes this education possible.” It is for this reason that some believe the First Amendment, which protects freedom of thought and expression for all, is most important for those who accept the role as a professor. In addition to the importance of protecting the professors from adverse actions or retaliation in the workplace due to their speech, it is equally important for education and academia that professors are free to utter uncensored words to their students.
Some argue that the Pickering balancing test should “weigh decidedly” for the professor because the universities’ interests are “so minimal” in comparison to the strong First Amendment interests of the professors. However, universities have strong corresponding interests as they must manage a large group of people and create an environment that is conducive to learning and education in the first place. Further, it is an overgeneralization to say that the universities’ interests are “so minimal.” Universities are responsible for the well-being of other students and faculty, which is hardly a minimal task. Therefore, a balancing test that weighs decidedly for the professors would essentially eliminate the balancing test for freedom of speech in the upper-level educational setting, despite the strong interests that universities have as well.
2. Balancing Test—Common Arguments for Colleges and Universities
Universities must ensure that their classrooms welcome the marketplace of ideas in a way that is conducive to learning. While our court system has a preference to rule in favor of the professor in freedom of speech cases, this is not a blind analysis. There are instances where the school’s interests will outweigh the professor’s interests, such as where a professor violates the student’s constitutional rights or unlawfully discriminates against students.
One such instance where a professor may lose on the balancing-test prong of the analysis is when the professor’s speech creates a hostile environment in the classroom. Professors do not differ from other employment sectors in that they are not immune from the universities’ policies that protect the students and other co-workers.
Additionally, a hostile environment in the classroom and academic setting “disrupts the learning process itself.” The Seventh Circuit recognized this reasoning in Piggee v. Carl Sandburg College after a professor gave a gay student in the class “religious pamphlets on the sinfulness of homosexuality.” The Piggee court reasoned that the professor’s speech “was not only not relevant to her job but in fact might have impeded her ability to work with students.” The First Amendment is not a protective shield that permits “professors to use profane, racist, or sexist language without any legitimate academic justification.”Piggee shows that professors must maintain their ability to work with students and other faculty, and they cannot say things that will impede that ability. In other words, the First Amendment does not protect all speech at all times.
Applied to an educational fact scenario, a public university or college has the right “to protect its academic integrity by disciplining professors who disregard professional standards, ignore the curriculum, or violate students’ rights.” This discipline and restriction on speech is permissible by the university “assuming [the discipline] is pursuant to precisely tailored regulations . . . because the university has overriding interests in preventing such behavior.”
Additionally, universities and colleges have an interest in harmony and positive working relationships between various faculty and administrators. The Sixth Circuit recognized this interest in Hardy when it admitted that the speech at issue in Hardy had “the effect of creating disharmony between Hardy and the College administrators.” Additionally, the Sixth Circuit has considered factors such as federal funding and the effect that retaining a professor would have on enrollment. In Bonnell v. Lorenzo, the Sixth Circuit suggested that “a fear of a loss of federal funding was a legitimate consideration” for overriding a professor’s First Amendment rights. While concerns over enrollment at the college due to retaining a professor is another common argument for schools, the Sixth Circuit dismissed that argument in Hardy.
Professors must adhere to accepted professional standards. These standards and restrictions on speech apply in settings broader than just the professor’s interaction with students in the classroom. Professors who plagiarize academic and scholarly papers “may be disciplined for a gross violation of professional ethics.” Similarly, “grossly inaccurate speech about the Holocaust, for example, could be cause for dismissing a historian for incompetence.”
Further, universities have an interest in protecting the students who attend their program, many of whom live on campus. There is an increased risk of suicide associated with transgender students.
As displayed above by the circuit splits over (1) the differing tests for professors’ freedom of speech rights and (2) the various ideas regarding what is encompassed in an academic freedom exception, there is a need for uniformity and consistency. Universities and professors are both looking to the Supreme Court to establish a uniform test for professors’ freedom of speech rights and the role that academic freedom plays in determining those freedom of speech rights. Universities need to know what speech can be disciplined, and professors need to know what speech can be uttered.
Constitutional rights should not change over the lines of a state border. The Supreme Court has the power and authority to review a case like Meriwether v. Hartop and provide clarity on this issue across all fifty states. Professors hold a unique role in society and that unique role should be protected. The marketplace of ideas and differing ideologies taught and shared in the classroom are of great importance—especially since the United States is a country that values the freedom of speech and curses content or viewpoint discrimination.
That said, professors do not have an absolute shield to say whatever they deem fit. The Garcetti test for the freedom of speech in employment settings does not fit the role of professors well because of the importance of academic freedom. Professors must be awarded protections in teaching, scholarship, and research, or professors will seek other occupations given the constant fear of litigation or an adverse employment action. The academic freedom exception should not, however, protect professors from administrative duties, or from speech that has nothing to do with what they are teaching—such as calling roll or calling on a student during the class. Administrative tasks are not unique to education and academia; a professor does not differ from other employment sectors in that they must communicate with others in a professional fashion. Therefore, while academic freedom and professors’ confidence in their freedom of speech rights are essential, professors should not be protected from an academic freedom exception to Garcetti for tasks that are not unique or crucial to teaching, scholarship, or research.
. David L. Hudson, The First Amendment: Freedom of Speech § 2:2 (2012). ↑
. Id. at 425 (stating “[w]e need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching”). ↑
. See, e.g., Evans-Marshall v. Bd. of Educ., 642 F.3d 332, 342 (6th Cir. 2010). ↑
. See, e.g., Demers v. Austin, 746 F.3d 402, 412 (9th Cir. 2014). ↑
. See, e.g., Widmar v. Vincent, 454 U.S. 263, 264–66 (1981). ↑
. Henry L. Baumann & Jay S. Kogan, Would We Have a Fairness Doctrine if Marconi had Lived Before the Constitutional Convention?, 1986 Det. Coll. L. Rev. 947, 947. ↑
. Preece, supra note 13, at 36. While no “positive guarantee” existed, “[e]nglish law proceed[ed] generally on the assumption that anything may be said or done, which is not specifically prohibited by law.” Id.↑
. Id. See also Mark Strasser, Pickering, Garcetti, & Academic Freedom, 83 Brook. L. Rev. 579, 605 (2018) (stating that “[a]t the university level, research is often an important component of a professor’s job responsibilities”). ↑
. See generally Kenneth Garcia, Religion, Sectarianism, and the Pursuit of Truth: Reexamining Academic Freedom in the Twenty-First Century, AAUP J. Acad. Freedom, 4 (2014) (discussing the tension between religion and academia; “Religious strife had been a cause of war and division in Europe for centuries. In a pluralistic society such as that of the United States, with no established religion, sectarian efforts to condemn and exclude the conceptions of others—including scientists, nonbelievers, and believers from other denominations—created discord. Both Catholics and Protestants were guilty of this throughout the nineteenth and first half of the twentieth century. . . . For too long it has been detrimental to scholarship as a whole and to the relationship between theology and other academic disciplines.”). ↑
. See Karmen Melissa Stephenson, Academic Freedom, Critical Thinking, and the Culture of American Science Education, 10 (2018) (Ph.D. Dissertation, University of Tennessee) (stating that after the Scopes trial most science textbooks limited or removed evolution from public science education. Teaching evolution was especially limited in states that had no “anti-evolution statutes in place.” This changed in the 1950s and 60s as First Amendment cases were decided). ↑
. Joseph J. Martins, Tipping the Pickering Balance: A Proposal for Heightened First Amendment Protection for the Teaching and Scholarship of Public University Professors, 25 Cornell J.L. & Pub. Pol’y 649, 654 (2016). ↑
. Strasser, supra note 28, at 579; see also LeRoy, supra note 34, at 14 (stating that “the law did little to distinguish between the expressive elements for the occupation of professor, on the one hand, and high school teacher, hospital nurse, and assistant state’s attorney, on the other. The result is a one-size-fits-all First Amendment jurisprudence”). ↑
. Carol N. Tran, Recognizing an Academic Freedom Exception to the Garcetti Limitation on the First Amendment Right to Free Speech, 45 Akron L. Rev. 945, 967–68 (2011). But see Piggee v. Carl Sandburg Coll., 464 F.3d 667, 672 (7th Cir. 2006), where the court declined to apply Garcetti in its reasoning. ↑
. Seeid. (arguing that professors’ freedom of speech rights are already subject to censorship because “‘political correctness’ is often a pre-requisite for appointment, tenure, or promotion . . . in modern Universities”). ↑
. Dennis J. Turner, Publish or be Damned, 31 J. Legal Educ. 550, 554 (1981). ↑
. LeRoy, supra note 34, at 38 (stating that “the First Amendment is not synonymous with academic freedom”). ↑
. Turner, supra note 79, at 554 (This pressure on professors to publish and produce scholarship has been referred to as the “publish or perish” phenomenon, and some critics argue that while this pressure “may force the pen to the paper . . . it cannot instill creativity and inspiration”). ↑
. Id. at 668 (stating that “[i]n the academic context, because the First Amendment value of core academic speech to the professor and society is so high, and the university’s corresponding interest in restraining such speech is so minimal, the Pickering balance should weigh decidedly in the professor’s favor”). ↑
. For a discussion of this preference, see Strasser, supra note 28, at 596–605. ↑
. Strasser, supra note 28, at 602. See alsoPiggee, 464 F.3d at 672 (“Piggee’s ‘speech,’ both verbal and through the pamphlets . . . was not related to her job of instructing students . . . [but] inhibited her ability to perform that job by undermining her relationship with . . . other students who disagreed with or were offended by her expressions of her beliefs.”). ↑
. Id.See also Stephenson, supra note 41, at 20 (stating that science advocates argue that “‘Holocaust denial’ is not a topic that teachers have the academic freedom to include in public school history courses, as it is not part of the mainstream knowledge or scholarship in the field”). ↑
. Amanda Ottaway, Medical Association Wants 6th Circ. Pronoun Ruling Redo, Law 360 (May 18, 2021, 9:10 PM), https://plus.lexis.com/newsstand#/article/1385929 (“The empirical data demonstrates that singling out a transgender student in this manner is likely to significantly imperil the student’s health and educational outcomes.”). ↑
There is no doubt that the advance of modern technology has allowed for an increase in the interconnected nature of American society. Specifically, the popularity of smartphones has allowed for a new level of immediate interconnectedness that was previously impossible.  With this rise in technology has come a new form of human interaction that can lead to dangerous and irreparable consequences—for example, encouraging the suicide of another through text messaging. A new legal precedent has been set in Massachusetts to deter this type of encouragement, making it a criminally punishable offense to encourage suicide through texting. In many states, it is illegal to assist in the suicide of another, and being found guilty of doing so will result in criminal liability. As technology has evolved, the state of Massachusetts has made national headlines for including the encouragement of suicide through text message as an illegal and punishable form of assisting in a suicide.
In 2017, Michelle Carter was found guilty in Massachusetts state court for encouraging her boyfriend, Conrad Roy, to commit suicide through thousands of text messages. Similarly, this past month, on December 23, 2021, Inyoung You pleaded guilty in Massachusetts to assisting in the suicide of her boyfriend, Alexander Urtula, through about 47,000 text messages. Both cases have grabbed national attention and have opened Americans’ eyes to the way that communication through technology can lead to dire consequences.
The Supreme Court has established that the right to suicide is not a fundamental or liberty interest protected by the Constitution, and governmental impairment to the right to suicide will receive the lowest level of scrutiny from the courts. However, the First Amendment establishes the right to free speech for all citizens, which the Supreme Court has long interpreted. The Supreme Court has held that the First Amendment, which states that “Congress shall make no law . . . abridging the freedom of speech,” establishes a “fundamental personal right” to free speech which can only be impaired by the government if such impairment survives strict scrutiny. Because the right to suicide is not constitutionally protected and receives minimal scrutiny whereas government impairment on freedom of speech receives the highest level, some courts have held that encouraging another’s suicide will be punishable only if strict scrutiny for such punishment is met. For these reasons, the Minnesota Supreme Court held that verbal encouragement to another person before that person’s suicide is constitutionally protected speech that could not be criminally punishable because it does not survive strict scrutiny.
The State of Massachusetts interpreted the situation differently, however, finding that when speech constitutes the crime of involuntary manslaughter, First Amendment rights are not affected. In the case of Michelle Carter, the court clarified that it was not simply Carter’s words that were being punished; it was “reckless or wanton words causing death” that constituted a crime. The court held that even though Carter committed the crime of involuntary manslaughter using just words, she could not “escape liability” through First Amendment protection. Thus, because Carter’s illegal conduct was being punished, and not Carter’s speech alone, her First Amendment right to free speech was not violated.
Massachusetts also concluded restriction of verbal encouragement of suicide could pass strict scrutiny even if the First Amendment applied because the state “has a compelling interest in deterring speech that has a direct, causal link to a specific victim’s suicide.” On appeal, the court affirmed that the state had a justifiable reason to restrict Carter’s speech, holding that the state has a “compelling interest in preserving life.” Through Massachusetts’s reasoning, because states have a compelling interest in deterring citizens from committing suicide, especially with the encouragement of others leading to the suicide, the constitutional protections provided by the First Amendment may be overcome in cases like Michelle Carter and Inyoung You.
The Massachusetts court in Carter did point out, however, that the elements of involuntary manslaughter charges must be met on a case-by-case basis to rightfully prove that charge in the case of encouraging suicide through text message. In Massachusetts specifically, in order to prove involuntary manslaughter, the state must prove that the defendant caused the death of another through wanton or reckless behavior or failure to act. These elements align with many other states’ laws on involuntary manslaughter. In Carter’s case, the court found that her text messages were enough to prove she committed involuntary manslaughter. The court reasoned that because Carter had such a close relationship with her boyfriend and because her text messages were so supportive and temporally close to Roy’s suicide that they were a probable cause of his suicide. Carter’s case was appealed to the United States Supreme Court, but the Court denied the petition for writ of certiorari, suggesting that the Court may agree with Massachusetts’s analysis on the matter.
Michelle Carter’s sentence was the first time an American has been punished for encouraging the suicide of another using only text messaging. A few years later, Inyoung You’s sentencing following a guilty plea for a near-identical situation shows a trend in punishing text messages which explicitly encourage the suicide of another. Although both Carter and You’s cases occurred in Massachusetts, this trend of punishing those who actively encourage and contribute to the suicide of another using technological communication could very well become a trend throughout the states.
It’s that time of day. Your child is positioning the antenna just right in order to catch their favorite broadcast TV show. No, that doesn’t sound quite right. They are actually dialing up the old FM radio for their favorite weekly jamboree! No, that’s definitely not happening. Instead, kids today consume their entertainment through mobile devices—a recent study estimates that 90 percent of children have cell phones by the age of eleven and that on average they spend over three hours on that device per day.
Given the realities of how today’s children access content, one would think that the legal doctrine for policing explicit TV/radio content would morph to accommodate the internet. However, there is a double standard currently in place. A high bar for obscene, indecent, and profane content exists on the broadcast airwaves. In contrast, there is no discernable regulation of expression on the internet.
The lack of internet content policing stems from the First Amendment right to freedom of expression. While the First Amendment has a broad baseline standard, the government limits what can be said in a few key areas including (but not limited to) fighting words, incitement, obscenity, and indecent speech that invades the privacy of the home. The overarching authority for the latter still has its roots in FCC v. Pacifica Foundation.In Pacifica, a New York radio station aired a previously recorded skit by the comedian George Carlin entitled Dirty Words in which he expressed all of the curse words that he thought were disallowed on the public airwaves. The Supreme Court took issue with the airing of that slot in the middle of the afternoon and honed in on two overriding motivators for censoring the curse words used in the segment: (1) the unique pervasive access of the broadcast airwaves, and (2) the susceptibility of children to be exposed to the content.
Those overarching reasons delineated in Pacifica still form the basis for FCC guidance that broadcast providers must follow. The FCC currently prohibits indecent conduct that “portrays sexual or excretory organs” and profane conduct like “‘grossly offensive’ language that is considered a public nuisance.” Notably, these rules only apply to the major broadcast TV stations (e.g., ABC, NBC, FOX, PBS, etc.) and FM/AM radio from 6:00 a.m. to 10:00 p.m. Cable and satellite TV are excluded since those are pay-for-service options.
Twenty years later, the federal government saw a need to implement baseline measures for explicit content that children could access on the internet when it included specific protection provisions for “indecent and patently offensive communications” within the Communications Decency Act. The Supreme Court struck down that portion of the act in Reno v. ACLU when it reasoned that, “[u]nlike communications received by radio or television, ‘the receipt of information on the Internet requires a series of affirmative steps more deliberate and directed than merely turning a dial. A child requires some sophistication and some ability to read to retrieve material and thereby to use the Internet unattended.’” The Court then dug in its heels by saying “the Internet is not as ‘invasive’ as radio or television” and that “users seldom encounter [sexually explicit] content accidentally.”
Times have changed since the Court decided Reno in 1997. Today, internet access is often unabated, and one can easily stumble upon far more sexually explicit material than could be fathomed on the traditional broadcast airwaves. How many deliberative and affirmative steps does it take for a TikTok video to pop in front of your face? How about an Instagram post as you scroll down on your home page? What about a tailored ad on the side of an otherwise mundane web page? Apps like TikTok and Instagram present endless amounts of new revealing and potentially vulgar images and sounds automatically—the new videos will simply appear after the previous one ends.
Another example of a potential hazard that a child can stumble upon is pornography. Porn’s online proliferation has been well documented; Pornhub, the world’s largest porn site, has 100 billion video views per year and 130 million unique viewers per day.  Twenty-five percent of those users are between the ages of eighteen and twenty-four. In contrast, only 4 percent of users are over the age of sixty-five. Its user traffic exceeds that of both Netflix and Yahoo. Eighty percent of that traffic comes from mobile devices. This pervasive medium can be accessed with as little as two clicks from Google’s homepage or an errant link from social media.
While the effects of easily accessible porn on children are still being studied, early experiments have shown that heavy porn consumption can lead to body shaming, eating disorders, and low self-esteem. There are many other issues with porn access beyond the mental effect on children that are actively being debated, including Pornhub’s lack of adequate age screening for its users and its blatantly illegal acts of profiting off children’s pornography. Big Tech is also finally getting the hint that they have skin in the game too as they begrudgingly start to put in age verification safeguards of their own.
When reevaluating the factors employed in Pacifica, it becomes clear that the two-prong test originally used for radio broadcasts is now satisfied on the internet. The ubiquitous access children have to the internet via smartphones demonstrates that the medium is pervasive. Children are susceptible to exposure to indecent content because of the ease of access through two quick clicks from Google, automatic video recommendations on social media, and the sheer popularity of porn content amongst their peers who are just a few years older than they are. The concern in Reno around the lack of a “series of affirmative steps” needed to access illicit content on the internet is outdated because of the automatic content that will load on apps like TikTok and Instagram. Similarly, the majority of children as young as seven years old have both smartphones and the sophistication to seamlessly access the internet, even though they may not fully understand the ramifications of some of their content choices.
Balancing the government’s interest in limiting children’s exposure to indecency and profanity with the right to express ideas freely online is no easy task. However, other countries have found ways to regulate the extreme ends of the porn industry and children’s access to such content. No matter where one stands on the issue, it is abundantly clear that the traditional view of mundane curse words encountered on broadcast television is not compatible with the endless explicit content that is so easily displayed on smartphones. Both are uniquely pervasive and are accessible to children with minimal effort or “steps.” One of the two doctrines should evolve.
On May 5, 2019, Dillon Webb was pulled over by a sheriff’s deputy in Columbia County, Florida, for a sticker that read “I EAT A*S” on the rear window of his truck. Webb was arrested under a Florida obscenity statute after refusing to alter the sticker, and the officers that made the arrest were granted qualified immunity. Similarly, Paul Robert Cohen was convicted under a California obscenity statute in 1971 for wearing a jacket that read “F**k the Draft” in a California county courthouse. However, the Supreme Court of the United States held that a state may not criminalize the public display of an expletive without a specific, compelling reason. On the surface, these two cases appear to ask the same question–whether a state may prohibit the public display of an obscene word or phrase without violating the constitutional rights granted by the First Amendment. So why were the officers in Webb’s case granted qualified immunity while the First Amendment protected Cohen’s jacket from a similar obscenity statute?
In Cohen’s case, the constitutional protection of his speech depended on the context in which he displayed the four-letter word. There, Cohen donned the jacket he had emblazoned with “F**k the Draft” in the Los Angeles County Courthouse corridor. He testified that he wore the jacket “as a means of informing the public of the depth of his feelings against the Vietnam War and the draft.” In its analysis, the Supreme Court found that his jacket’s message was not erotic in nature–that it would not “conjure up such psychic stimulation in anyone likely to be confronted with Cohen’s crudely defaced jacket”–and thus, it was not truly a question of obscenity. The Court reversed Cohen’s conviction for several reasons, the most relevant of which here are (1) forbidding particular words creates a high risk of suppressing ideas, and (2) that “linguistic expression . . . conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well.” This decision illuminated a specific area of speech that the First Amendment protects and warned against government bans on specific words to prevent the expression of unpopular views.
To distinguish Webb’s case involving his window sticker, the United States District Court for the Middle District of Florida focused on the context of his arrest. Sheriff’s deputy English noticed Webb’s sticker at a stoplight and stopped Webb’s vehicle because he believed the sticker to violate Florida’s obscenity statute. Deputy English commanded Webb to remove a letter from the window sticker, but Webb refused to do so under the claim that the First Amendment protection of free speech included his window sticker. Deputy English contacted his supervisor and subsequently arrested Webb and had his vehicle towed. This case boiled down to Deputy English’s belief at the time that his actions were within the state’s power. The District Court found that a reasonable officer in Deputy English’s position could have reasonably believed that Webb’s sticker depicted a sexual act, thus potentially violating Florida’s obscenity statute. This reasonable belief, supported by Webb’s contention that the sticker was sexual in nature, granted qualified immunity to Deputy English and his supervisor. The Court put particular emphasis on the sexual nature of Webb’s sticker, citing this as the reason that it is distinct from similar cases–indeed, using it to distinguish the case from Cohen specifically.
The District Court for the Middle District of Florida held that an officer could have reasonably believed that the sticker was obscene per Florida’s obscenity laws, which was distinct from Cohen’s jacket. On the other hand, Cohen’s jacket was constitutionally protected because it was not erotic in nature despite the expletive on it. As such, a rule regarding public displays of expletives is further illuminated. So long as the message cannot be reasonably interpreted to depict a sexual act or be otherwise erotic in nature, it will be constitutionally protected despite the expletives it includes.
 Webb v. English, No. 3:19-cv-975-MMH-JBT, 2021 U.S. Dist. LEXIS 181927, at *2 (M.D. Fla. Sept. 23, 2021).
When systems work as expected, people generally are content to let such systems work in the background—the shadows—without needing to know the details. When those same systems start producing different and unexpected results, however, people want to shine a light into the shadows to understand, diagnose, and if needed, fix the system.
The concept of the shadow docket has been around since the Supreme Court’s inception, but the term itself was first coined in 2015 by William Baude to refer to the Court’s “range of orders and summary decisions that defy its normal procedural regularity.” Unlike the more well-known process of the “merits docket,” where the Court writes an opinion after multiple rounds of briefing and oral arguments, rulings from the shadow docket almost always come as orders from either a single Justice or the Court. These orders usually come after only one round, or less, of briefing, do not contain a majority opinion nor reasoning, and most of the time provide no record of voting. Because these orders can be handed down at any time—even in the middle of the night—and lack transparency, “these rulings come both literally and figuratively in the shadows.”
Although the Court issues thousands of orders via the shadow docket each year, until recently, many did not pay much attention to the shadow docket because it was meant to resolve “unremarkable scenarios.” For example, the Court has utilized the shadow docket to issue uncontentious decisions such as denying uncontroversial petitions for certiorari, denying petitions that clearly did not meet the criteria for emergency relief, granting additional time for parties to file briefs, and other procedures related to the Court. Recently, however, the shadow docket has faced increased scrutiny focusing on a relatively small subset of cases that employ the shadow docket to seek emergency relief.
Although the Supreme Court has the power to grant emergency relief through issuing injunctions, and issuing and lifting stays, the Court recognizes that these are “drastic and extraordinary remedies,” which should be granted only when “adequate relief cannot be obtained in any other form or from any other court.” In order to circumvent the typical appeals process and petition the Court for emergency relief, petitioners must show that “irreparable harm [will] result from the denial of a stay.”
Congress has begun investigating the Court’s emergency relief orders because of the increased number and variety of cases for such relief. Between 2001 and 2017, the Department of Justice only filed eight applications for emergency relief. During the four years of the Trump administration, however, the Department of Justice filed forty-one such petitions, twenty-four of which were granted in full, and four in part.
Additionally, the types of cases on which the Court has rendered decisions through the shadow docket has not only broadened, but also has become more divisive. Although there were some controversial rulings via the shadow docket in the past, most of these decisions concerned elections and the death penalty. In the last few years, shadow docket decisions have expanded to include cases regarding the border wall, gathering restrictions due to COVID-19, federal executions, abortion bans, eviction moratoriums, and immigration policy regarding asylum seekers. The Justices, like the public, have also been divided on these controversial issues. Of the eight emergency relief applications filed by the Justice Department between 2001 and 2017, only one had a dissent. Conversely, in twenty-seven of the thirty-six orders regarding the emergency relief applications filed during the Trump administration, at least one Justice publicly dissented. Moreover, during the October 2019 Term, the number of 5-4 decisions from the shadow docket was almost equal to the number of 5-4 decisions on the merits docket.
A major criticism of the recent orders the Court has issued via the shadow docket is that they are inconsistent with one another and with past precedent, leading some to view the decisions as advancing policy rather than the law. In some cases, the Court has changed substantive law through emergency relief orders, articulating new constitutional rules to support such relief. For example, in Tandon v. Newsom, the Court issued an emergency injunction against a California law that prohibited in-home gatherings, including Bible studies and prayer meetings. In its order, the Court adopted an expansive view of the First Amendment’s Free Exercise Clause which “no prior majority opinion had ever adopted. . . .”
Conversely, in other cases, the Court has refused to grant emergency relief for constitutional rights. For instance, in Whole Woman’s Health v. Jackson, the Court denied injunctive relief regarding a Texas law banning abortions after a heartbeat is detected, which is usually around six weeks. Although the Court explicitly stated the “order [was] not based on any conclusion about the constitutionality of Texas’s law,” such a denial of injunction for “an obviously unconstitutional abortion regulation,” defies precedent in such situations and led some to conclude that “the [C]ourt is advancing a partisan political agenda and not a legal one.” When the Court uses the shadow docket to create a new interpretation of the First Amendment in one case but then refuses to utilize it to extend protection to an existing fundamental right in another, critics worry that such inconsistencies undermine the legitimacy of the Court.
There are myriad problems with the recent shadow docket emergency relief cases. For one, the timing of these decisions, which can be handed down late at night, and the usual absence of knowing which way Justices voted create opacity in the system. Moreover, shadow docket orders often do not provide any reasoning for the decisions they hand down, making “it impossible to scrutinize the merits of the Court’s action in far too many of these cases.” Due to this lack of reasoning, it is challenging for lower courts to know how to apply these decisions in subsequent cases, even though such orders are now meant to be treated as precedent. Additionally, other interested parties do not provide input and the Court does not have the benefit of hearing oral arguments. All of these issues ultimately culminate in reducing the Court’s legitimacy.
In her dissent in Whole Woman’s Health, Justice Kagan denounced the majority’s decision stating, “[it] is emblematic of too much of this Court’s shadow-docket decisionmaking—which every day becomes more unreasoned, inconsistent, and impossible to defend.” The Court’s new approach to emergency relief petitions via the shadow docket has garnered greater scrutiny of this system, shining a light into the shadowy process. Whether this new light allows the shadow docket decision making to continue, or whether Congress or the Court itself will attempt to recalibrate the system, remains to be seen.
 In 2020, two orders allowing the first federal executions in seventeen years were handed down at 2:10 am EST and 2:46 am EST. Another shadow docket was been handed down at 11:56 pm the night before Thanksgiving. The Supreme Court’s Shadow Docket, supra note 1, at 13–14.
It is no secret that federal policymakers usually propose a bill with no expectation that it will pass into law. In some cases, they do this because they want to start a conversation about an important topic. One such topic that has been at the forefront of the American political thought for some time now (and where there has been a dearth of collaborative communication between political ideologies) is how to properly balance Constitutional guarantees of the free exercise of religion with the civil rights of the LGBTQ+ community.
Now that President Biden and Vice-President Harris have been elected and the Democratic party controls both the house and the senate, we can look forward to a great deal more discussion about the proposed Equality Act which adds sex (including sexual orientation and gender identity) to the civil rights act of 1964. This bill seeks to alleviate the discrimination leveled at members of the LGBTQ+ community, but it carries its own poison pill in a clause that subordinates the 1993 Religious Freedom Restoration Act to the Equality Act. This clause would deny religious exemptions from churches or religious non-profit employers. And while it certainly guarantees unfettered civil rights to LGBTQ+ Americans, it raises issues of constitutionality by preventing some religious persons from freely exercising their religion.
President Biden has promised members of the LGBTQ+ community to make the Equality Act a top legislative priority for his first 100 days in office, but the bill may run into trouble in the form of filibusters and a conservative Supreme Court. Remember, legislation is often proposed — in our system of checked and balanced governance — to spark conversation about an important topic. The realistic best-case scenario for LGBTQ+ rights advocates in this situation would be to begin negotiating with conservative legislators to find a constitutionally sound compromise.
One such collaboration has already been proposed as another bill: the Fairness for All Act. This bill accomplishes some of the goals of the Equality Act by adding sexual orientation and gender identity to the Civil Rights Act, but it explicitly exempts religious institutions and non-profits from having to hire, lodge, or otherwise refrain from discriminating against members of the LGBTQ+ community.
The Fairness for All Act was inspired by similar legislation passed by the Utah State Legislature in 2015, which guaranteed equal protection in employment and housing for all persons regardless of their sexual identity. This bill, dubbed “The Utah Compromise,” passed in a historically Republican state and preceded the recent Supreme Court ruling Bostock v. Clayton County, Georgia (which guaranteed equal protection in the workplace to homosexual and transgender individuals) by five years. It came about through the collaboration of religious institutions like the Church of Jesus Christ of Latter-day Saints and civil rights activists like the American Civil Liberties Union.
The Utah Compromise was soundly criticized by Christian conservatives and liberal friends of the LGBTQ+ community who all worried that other states would follow the example of Utah. Why? Because it was a true collaboration — one where neither party gets to have their cake and eat it too. Conservatives griped that it was unnecessary, that it restricted the religious freedom of small businesses, and that the only religious protection it offered was already guaranteed in the First Amendment. On the other side, many LGBTQ+ advocates complained that it reserved the rights of religious institutions and non-profits to discriminate against people within their institutions and programs. However, what Utah legislators and collaborating institutions realized was that “[i]t was much better for everybody to get 90 percent of what they needed, than for somebody to get zero and another side get 100 percent.”
The Fairness for All Act may seem like a step in the wrong direction, but it represents the best possible victory for both sides of the debate. LGBTQ+ people would be guaranteed civil rights in a majority of situations while religious conservatives would not have to sacrifice their religious beliefs or undermine their own messages by employing representatives who do not exemplify their stated morals.
Perhaps the most important victory in this situation would be for leaders and followers on each side of a seemingly insurmountable ideological divide to openly talk with each other about their values, identities, and shared humanity. As President Biden said, “let’s give each other a chance. It’s time to put away the harsh rhetoric, lower the temperature, see each other again. Listen to each other again. And to make progress, we have to stop treating our opponents as our enemies. They are not our enemies. They are Americans.”
The internet has long been championed as a marketplace of ideas that fosters unprecedented access to different viewpoints and mass amounts of information and media. At least in the eyes of some, Section 230 of the Communications Decency Act (“CDA”) is largely responsible for the internet gaining that reputation, and the Section has therefore become something of a beacon for free speech. In recent years, however, the Section has received considerable negative attention from both sides of the political spectrum, including explicit denouncement from both President Donald Trump and the Democratic Presidential Nominee Joe Biden. What started as dissatisfied grumblings about unfair censorship orchestrated by tech companies, culminated in President Trump enacting an Executive Order in May calling for changes in the Section that would create greater liability for companies such as Facebook, Twitter, and Google.
The CDA was first enacted in 1996 as an attempt to prevent children from accessing indecent material on the internet. The Act made it a crime to knowingly send obscene material to minors or publish the material in a way that facilitates it being seen by minors. Section 230 was conceived in-part as a way to facilitate this prevention goal, by allowing websites to “self-regulate themselves” by removing indecent material at their discretion. While certain parts of the Act were quickly declared unconstitutional in the Supreme Court decision Reno v. American Civil Liberties Union, Section 230 survived to become arguably the most important law in the growth of the internet.
The relevant language in the Section itself is contained in a “Good Samaritan” provision that states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider,” and that the provider shall not “be held liable on account of any action . . . taken in good faith to restrict access to or availability of material that the provider . . . considers to be obscene, lewd, lascivious . . . or otherwise objectionable, whether or not such material is constitutionally protected.” This means Twitter, or a similar site, cannot be held liable for the objectionable material a third-party posts on their platform, subject to limited exceptions. It also means that any action taken by Twitter to remove content they deem to be offensive or objectionable is protected as a way to encourage sites to remove offensive content by allowing them to do so without concern of liability.
President Trump apparently takes issue with this “Good Samaritan” protection. In his May Executive Order, President Trump called social media’s moderation behavior “fundamentally un-American and anti-democratic,” and specifically accused Twitter of flagging and removing user content in a way that “clearly reflects political bias.” President Trump also accused unspecified U.S. companies of “profiting from and promoting the aggression and disinformation spread by foreign governments like China.” To address these concerns, the Executive Order calls for a narrowing of Section 230 protections, making it so that social media companies can be held liable for what their users post or for moderating those posts in a way that is “unfair and deceptive.” Four months later, the Department of Justice proposed legislation aimed at weakening Section 230 protections. The legislation is drafted in the spirit of the Executive Order, with special emphasis being paid to holding platforms accountable for hosting “egregious” and “criminal” content, while retaining immunity for defamation.
Presidential Nominee Biden, for his part, seems to be more focused on holding tech companies liable for misinformation that is spread on their websites. In a January interview, Biden stated that tech companies should be liable for “propagating falsehoods they know to be false.” Biden took particular umbrage with Facebook’s hosting of political ads that accused Biden of “blackmailing” the Ukrainian government, and he further stated that Mark Zuckerberg should be subject to civil liability for allowing such behavior.
For a law that has garnered so much recent controversy, and one the public has taken for granted until relatively recently, it’s worth considering what the implications of removing Section 230 protections would be. Internet advocacy groups have vehemently criticized any Section 230 amendment proposals, and have generally painted a bleak picture of the ramifications of such changes. These groups’ prognostications of the legal landscape without Section 230 protections generally predict social media sites will be facing a legal quagmire. Theoretically, sites would not only be exposed to liability for taking down certain third-party content, but also for not taking down other third-party material, which would effectively create a minefield of liability. Internet Association, a trade association that represents preeminent tech companies such as Amazon, Facebook, and Google, has repeatedly attacked any threat to amend Section 230 as detrimental to the internet economy, and recently invoked the First Amendment as reason enough for social media companies to be able to “set and enforce rules for acceptable content on their services.”
The latest serious threat to Section 230 has come from the FCC. On October 15, FCC Chairman Ajit Pai expressed his intention to move forward with a rulemaking request, stating that, while social media companies have a right to free speech, they do not have a “First Amendment right to special immunity denied to other outlets, such as newspapers and broadcasters.” Several Democrats have challenged the FCC’s motives and overall authority to amend the Section. The FCC, in response, asserts a fairly simple argument. The idea is that their authority rests in the language of the Communications Act of 1934, which in Section 201(b), gives the FCC explicit rulemaking power to carry out provisions of that Act. In 1996, Congress added Section 230 to this Communications Act, therefore giving the FCC power to resolve any ambiguities in Section 230. According to the FCC, two Supreme Court cases, AT&T v. Iowa Utilities Board and City of Arlington v. FCC, uphold their power to amend Section 230 pursuant to Section 201(b).
The FCC’s push towards rulemaking came quickly after conservative-led criticisms of Section 230 reached a fever pitch following the circulation of a New York Post story containing potentially damaging pictures and information about Joe Biden’s son Hunter Biden. Twitter and Facebook removed posts linking the story, on the basis that it contained hacked and private information. The two sites have continuously denied suppressing conservative views but, regardless, the Senate Judiciary Committee voted 12-0 to issue subpoenas to Jack Dorsey and Mark Zuckerberg, the sites’ respective CEOs, regarding their content moderation. In anticipation of their hearings, Dorsey and Zuckerberg continued to passionately defend the Section, while Dorsey committed to making moderation changes at Twitter and Zuckerberg advocated for greater governmental regulation of tech companies in general. Alphabet CEO Sundar Pichai, another tech leader subpoenaed, called Section 230 “foundational.” The hearing took place on Wednesday and, according to early reports, was grueling.
Lastly, on October 13, social media companies started to feel pressure from the Supreme Court. Justice Clarence Thomas voiced his concerns with the Section, stating that “extending §230 immunity beyond the natural reading of the text can have serious consequences,” and it would “behoove” the court to take up the issue in the future. In the face of an impending election, uncertainties abound. However, one thing seems undeniable: Section 230 has never felt more heat that it does right now.
Donald Trump is once again at the center of a legal dispute. The Forty-Fifth President of the United States has been no stranger to legal controversies during and before his presidency, but the latest update in Knight First Amendment Institute at Columbia University v. Trump has President Trump petitioning for a writ of certiorari to the Supreme Court after more than three years of litigation.
The case began in July 2017 when the Knight First Amendment Institute at Columbia University (“Knight Institute”) filed a lawsuit against President Trump in federal court alleging that he violated the First Amendment by blocking Twitter users from his @realDonaldTrump account after they criticized his policies and presidency. The U.S. District Court for the Southern District of New York found that Donald Trump, as President, exercised sufficient control over the Twitter account such that the @realDonald Trump account was “susceptible to analysis under the Supreme Court’s [First Amendment] forum doctrines, and is properly characterized as a designated public forum.” The District Court then held that President Trump’s blocking of these Twitter users was discrimination based on the users’ viewpoints and impermissible under the First Amendment. In July 2019, a three-judge panel for the U.S. Court of Appeals for the Second Circuit unanimously affirmed the district court’s decision and subsequently denied rehearing, sitting en banc, in March of this year. Despite his lack of success so far, the administration has continued his fight against the Knight Institute as Acting Solicitor General Jefferey Wall submitted a petition for a writ of certiorari to the Supreme Court at the end of August.
The petition includes both legal and policy-based arguments about the importance of the case. In terms of legal arguments, Solicitor General Wall argues that the Second Circuit wrongly concluded that (1) President Trump’s blocking of the Twitter users was a state action susceptible to the First Amendment rather than an act of a private citizen; (2) the @realDonaldTrump account was a designated public forum; and (3) the governmental-speech doctrine, which would exempt President Trump’s account from a First Amendment challenge, did not apply to President Trump’s actions. Putting the legal arguments aside, Solicitor General Wall also argues, “the court of appeals’ decision . . . has important legal and practical implications that reach beyond the circumstances of this case.” That is, public officials are “increasingly likely to maintain social media accounts to communicate their views, both personal and official,” so if the Second Circuit’s decision were allowed to stand, it would significantly hinder the ability of these public officials to choose who they want to interact with on their own accounts: a choice afforded to every other social media user. According to the petition, this choice—or lack thereof—takes on an even greater significance when the public official in question in the President of the United States.
In response, the Knight Institute filed its brief in opposition on Sept. 21. The Knight Institute first argues that there is no reason for the Court to hear the case because amongst the various lower courts that have dealt with this issue, all agree that public officials blocking critics from their social media accounts violates the First Amendment. It additionally argues that the second circuit properly concluded that blocking users from the @realDonaldTrump account was state action, was not government speech, and that the account itself is a public forum. The Knight Institute also counters Solicitor General Wall’s policy-based arguments, asserting that the impact of the Second Circuit’s decision has not and will not hinder the President’s or other public officials’ use of social media to communicate to the general public. Finally, the Knight Institute maintains that the only cases where the Court has granted certiorari solely due to presidential implications, and absent a circuit split, are those that deal with “fundamental issues of executive power” (such as separation-of-power concerns), unlike the case at hand, which only deals with whether President Trump can block Twitter users from his @realDonaldTrump account.
Given the procedural history, the above arguments, and the fact that the Court usually only hears cases that have “national significance, might harmonize conflicting decisions in the federal circuit courts, and/or could have precedential value,” it seems unlikely that the Court will grant certiorari. Looking at the procedural history, the two lower courts were in agreement that President Trump violated the First Amendment (with one panel holding that unanimously). Therefore, the Court has little incentive to rehear a case that has already been decided so clearly, unless, as Solicitor General Wall argues, the court of appeals erred in its conclusions. The petition for rehearing was denied by the Second Circuit en banc,  however, so the decision has already been affirmed in some sense. Along similar lines, there is no conflict among federal circuit or district courts on the issue of public officials blocking users from their social media accounts, as the Knight Institute points out. On the other hand, there has been an influx of cases dealing with this issue as of late, so the Court might want to decide the issue once and for all to deter future litigation. Nevertheless, given, again, that so many lower courts are all in agreement on the issue, the Court probably will not wish to devote time and resources on a well-settled area of the law simply to deter future litigation—particularly as the issue does not reach an issue of traditional significance in executive authority, such as a separation-of-powers issue. As a final matter, neither the Court’s current make-up of Justices nor the projected addition of Amy Coney Barrett should have much effect on the decision-making process in light of the above factors weighing so heavily against granting certiorari.
While it is unlikely that the Court will grant President Trump’s petition, if it does grant certiorari, the case would be interesting to watch unfold at the nation’s highest court. If heard, Knight First Amendment Institute at Columbia University could set the precedent for the ever-prevalent issue of freedom of speech in social media, so it is certainly worth keeping an eye out for the Court’s decision on the petition for writ of certiorari in the coming weeks.
A few years ago, the federal government dissected a certain four-letter word. It was prodded to see if it would “shock . . . the sense of truth, decency, or propriety” of the American public. It was weighed to determine if it would “giv[e] offense to the conscience or moral feelings.” And it was placed under the microscope to judge its “disgraceful[ness]” and “offensive[ness].” That four-letter word survived the scrutiny and is alive and kicking today. In fact, it was the scrutiny measures themselves that ultimately received the knife, cut out as unconstitutional by the Supreme Court over the summer.
The four-letter word under debate was not one of the typical variety tossed around in casual settings, but it was close enough. Plaintiff Erik Brunetti was trying to trademark the name “FUCT” as the title of his clothing brand. He claimed that the four letters were to be pronounced individually, as in “F-U-C-T.” However, as Justice Kagan pointed out in the majority opinion, “[Y]ou might read it differently and, if so, you would hardly be alone.” The U.S. Patent and Trademark Office (PTO) certainly did, and they rejected Brunetti’s application.
The PTO’s statutory authority to govern the trademark registration process is found in the Lanham Act, which is codified in 15 U.S.C. §§ 1051 et seq. Under § 1051, the PTO is allowed to subject the proposed trademark to scrutiny under the “factors set forth in subsections (a) through (e)” within § 1052. In particular, § 1052(a) allowed the PTO to scrutinize whether the proposed trademark “comprise[d] immoral . . . or scandalous matter.” If so, the trademark could be rejected. The PTO decided that FUCT fit squarely within the proscribed category, deploring it as “highly offensive,” “vulgar,” and sexually reprehensible. Brunetti pushed back against the rejection and won in the Court of Appeals for the Federal Circuit. The circuit court found that the PTO’s ban against “immoral, deceptive, or scandalous matter” was not in line with the First Amendment.
The Supreme Court then took the statutory phrase under consideration, turning to its 2017 decision in Matal v. Tam for guidance. In Matal, the Court examined whether the PTO could refuse registration to trademarks that “‘disparage’ any ‘person, living or dead’” within § 1052(a). Simon Tam, of the band “The Slants,” had fought a lengthy battle to trademark the band’s name in order “to ‘reclaim’ and ‘take ownership’ of stereotypes about people of Asian ethnicity.” However, the PTO rejected the trademark, reasoning that “the fact that an applicant may be a member of that group or has good intentions underlying its use of a term does not obviate the fact that a substantial composite of the reference group would find the term objectionable.” Ultimately, the Court decided that “if a trademark registration bar is viewpoint-based, it is unconstitutional” and that the PTO’s “disparagement bar was viewpoint-based.”
With that holding in mind, the Court reasoned that “if the ‘immoral or scandalous’ bar similarly discriminates on the basis of viewpoint, it must also collide with our First Amendment doctrine.” Looking to dictionary definitions of “immoral” and finding results such as “inconsistent with rectitude, purity, or good morals,” the majority found that this statutory language is entirely viewpoint-based. It upholds “conventional moral standards” while rejecting as impure other ideas that may not be as mainstream. The Court lightheartedly pointed out that a mark such as “ALWAYS BE CRUEL” would not survive this scrutiny. In the past, the PTO has taken the traditional side of morally-contested arguments, rejecting drug-positive trademarks such as “YOU CAN’T SPELL HEALTHCARE WITHOUT THC” and “BONG HITS 4 JESUS” while registering “SAY NO TO DRUGS—REALITY IS THE BEST TRIP IN LIFE.” Thus, the immoral-or-scandalous bar, as written, allowed the government to approve some viewpoints over others.
In arguing that the immoral-or-scandalous bar is constitutionally sound, the Government attempted to narrow the phrase to only “marks that are ‘vulgar’—meaning ‘lewd,’ ‘sexually explicit or profane.’” If it were so narrow, then it would be constitutionally sound. But the majority rejected this reasoning and found that the phrase encompasses much more:
It covers the universe of immoral or scandalous—or (to use some PTO synonyms) offensive or disreputable—material. Whether or not lewd or profane. Whether the scandal and immorality comes from mode or instead from viewpoint. To cut the statute off where the Government urges is not to interpret the statute Congress enacted, but to fashion a new one.
In striking down the
statutory phrase, the majority therefore paved the way for the “FUCT”
So, with this decision, can Americans now trademark whatever the FUCT they want to? Justice Sotomayor seemed to worry about that perhaps unintended consequence. In her concurrence in part and dissent in part, she wrote,
The Court’s decision today will beget unfortunate results. With the Lanham Act’s scandalous-marks provision, 15 U.S.C. § 1052(a), struck down as unconstitutional viewpoint discrimination, the Government will have no statutory basis to refuse (and thus no choice but to begin) registering marks containing the most vulgar, profane, or obscene words and images imaginable.
However, Justice Alito stood
up in his concurrence for the sanctity of free speech, arguing that “[a]t a
time when free speech is under attack, it is especially important for this
Court to remain firm on the principle that the First Amendment does not
tolerate viewpoint discrimination.”
Whichever side you are on, now might be the best time to go get that trademark registered.
Iancu v. Brunetti, 139 S. Ct. 2294, 2297 (2019).
erupted last week after a George Washington University professor, Dave Karpf,
tweeted a joke at New York Times columnist
Bret Stephens’s expense. Quoting an
8-word post about a bedbug infestation in the Times’ newsroom, Karpf joked that
“[t]he bedbugs are a metaphor. The
bedbugs are Bret Stephens.” Although this tweet did not initially gain much
traction, it later went viral when Stephens personally emailed Karpf, as well
as the George Washington University provost, demanding an apology for the
After several more tweets and an
off-scheduled column post by Stephens with visible references to the controversy,
both sides of the feud seem to be slowing down. Although this back and forth is just one isolated
incident between two individuals, it highlights a growing trend in our discourse. With the growing usage of social media in our
society, these sorts of ideological clashes have seemingly become more
prevalent than ever. And even though these virtual arguments tend
to be more of an annoyance than a liability, reputation-damaging attacks (even
those made on the internet) still can run the risk of triggering a costly libel
tort of libel is defined by Black’s Law Dictionary as “[a] defamatory statement
expressed in a fixed medium, esp[ecially] writing but also a picture, sign, or
The enforcement of libel laws in the
United States dates predates the ratification of the Constitution, most notably
with the trial of John Peter Zenger, whose 1735 jury acquittal established the
idea that someone cannot be charged with libel if the remark is true.
Even today, the accuracy of the
allegedly libelous statements continues to be one of key factors for courts to consider
in libel cases, with each state setting their own standards for liability. Another key consideration for courts comes
from New York Times v. Sullivan, where
the Supreme Court differentiated defamation claims involving public figures and
private individuals, holding that any libel suit against a public figure
requires the inaccurate statement to be made with “actual malice.”
Actual malice has been defined by the Court
as “knowledge that (the statement) was false or with reckless disregard of
whether it was false or not.”
Additional protections against libel
claims were enacted nine years later, when the Supreme Court limited libel laws
to apply only to intentionally false statements of fact, even if a trial court
is presented with baseless opinions that are similarly incorrect.
ever-increasing move toward a digitalized world raises the question of how
these libel laws can be applied to internet publications. To start, no claim for libel can be made
against any social media site, such as Facebook or Twitter, for content posted by
a user of that social media site. This is primarily due to the expansive legal protections
given to these “interactive computer services” by Section 230 of the Communications
Decency Act of 1996. That being said, individuals may still be
held liable for content that they post on the internet, with each state continuing
to apply its own standards for libelous conduct even as information crosses
state lines. When it comes to the question of
jurisdiction, the Supreme Court clarified in Keeton v. Hustler Magazine, Inc. that a state can claim
jurisdiction over a non-resident when injurious information is intentionally disseminated
to its citizens. Specifically, the Court cited each state’s
interest in protecting its citizens from intentional falsehoods as a key
consideration in its decision.
While online information is disseminated in a different manner than the magazines
from Keeton, courts have begun allow
jurisdiction for internet libel cases when the online post directly targets one
or more residents of the state.
applying libel laws to online statements, courts have used similar substantive principles
to those used for print publications. In
2009, former musician Courtney Love was sued by her former attorney after tweeting
allegedly libelous remarks. As this was the first reported case to go to a
jury decision for remarks made over Twitter, the trial court was left with a case
of first impression. In a landmark decision, the court opted to
apply traditional libel laws. A jury
found that Love did not know that the statements were false at the time they
were made; she therefore lacked the actual malice required to be considered
have also been other cases involving libelous comments made over Twitter. For example, one such case took place after a
tenant complained on her personal Twitter account about her “moldy apartment.” After seeing the post, the landlord sued the
tenant under Illinois libel laws; the case was later dismissed with prejudice
because the tweet was too vague to meet the requisite legal standards for
Another lawsuit took place after a
mid-game conversation between an NBA coach and a referee was overheard and
tweeted out by an AP reporter.
The referee insisted that the reported conversation
never took place, and the subsequent lawsuit ultimately resulted in a $20,000
settlement. Each of these cases present factually unique
scenarios, but all together indicate a growing trend: even as the medium for public
discourse has been rapidly shifting towards the digital sphere, traditional
libel laws still continue to apply.
addition to substantive treatment, there also remain unresolved legal questions
stemming from courts’ application of the single publication rule. The single publication rule provides that
“any one edition of a book or newspaper, or any one radio or television
broadcast, exhibition of a motion picture or similar aggregate communication is
a single publication” and therefore “only one action for damages can be
maintained.” The justification behind this rule is simple:
by aggregating all damages allegedly caused by a publication to a single
action, a party would not be perpetually bombarded with litigation long after their
active role in publication has ended.
This rule has already been adopted in
“the great majority of states” and was implemented within the 4th Circuit in Morrissey v. William Morrow & Co.
However, some academics have proposed
that the single publication rule should not always be applied to social media
posts, citing the possibility that a publisher could personally solicit shares
or retweets and thereby maintain an active role in republishing libelous
information. The issue of continual dissemination by means
of retweeting seems primed to be raised in later litigation, but thus far has
not been brought before any court.
Still, many circuits have already begun
the process of implementing the single publication rule to online posts in
general (so far these cases have been litigated over personal blogs rather than
Facebook or Twitter posts), so it will be interesting to see how courts handle
the issue if eventually raised by litigants down the road.
the social media presence in our society grows stronger each day, only time
will tell if courts will craft separate libel principles for online publications.
There are arguments to be made on both
sides, especially now that online mediums are increasingly taking over many of the
informational functions previously held by their print counterparts. For now, at least, courts are continuing to
use the same traditional libel laws that have been evolving and changing since John
Peter Zenger’s 1735 acquittal. 
And while the jury is still out on
whether Dave Karpf actually thinks Bret Stephens is a metaphorical bedbug, he
can likely rest easy knowing that current libel laws will protect his joke from
any future legal trouble.
 Michael Kent
Curtis, J. Wilson Parker, William G. Ross, Davison M. Douglas & Paul
Finkelman, Constitutional Law in Context 1038 (4th ed. 2018).
 James L. Pielemeier, Constitutional Limitations on Choice of Law: The Special Case of Multistate Defamation, 133 U. Pa. L. Rev. 381, 384 (1985).
 376 U.S. 254, 279–80 (1964); see also Gertz v.
Robert Welch, Inc., 418 U.S. 323, 351 (1974) (defining a public figure as
either “an individual achiev[ing] such pervasive fame or notoriety” or an
individual who “voluntarily injects himself or is drawn into a particular
SeeGertz, 418 U.S. at 339 (“[u]nder the
First Amendment, there is no such thing as a false idea.”).
 See Allen, supra note 5, at 82. Of course, Facebook and Twitter are not immunized against suits for content that they post on their own platforms. Cf. Force v. Facebook, Inc., ___ F.3d ___, No. 18-397, 2019 WL 3432818, slip op. at 41 (2d Cir. July 31, 2019), http://www.ca2.uscourts.gov/decisions/isysquery/a9011811-1969-4f97-bef7-7eb025d7d66c/1/doc/18-397_complete_opn.pdf (“If Facebook was a creator or developer, even ‘in part,’ of the terrorism-related content upon which plaintiffs’ claims rely, then Facebook is an ‘information content provider’ of that content and is not protected by Section 230(c)(1) immunity.”).
 47 U.S.C. §230(c)(1)
(2017) (“No provider or user of an
interactive computer service shall be treated as the publisher or speaker of
any information provided by another information content provider.”). “Interactive computer service” is defined by
the act as “any information service, system, or access software provider that
provides or enables computer access by multiple users to a computer server”). Id. at §230(f)(2); see also Allen, supra note 5, at 82 n.100 (describing
additional protections provided by the Communications Decency Act, including
how Twitter falls under its definition of “interactive computer service”).
See Allen, supra note 5, at 84; Pielemeier, supra note 8, at 384.
 465 U.S. 770, 777 (1984); see also Calder v. Jones, 465 U.S. 783, 791 (1984) (holding that
personal jurisdiction is proper over defendants who purposefully directed
libelous information at the plaintiff’s home state with the intent of causing
See, e.g.,Zippo Mfg. Co. v. Zippo Dot Com, Inc.,
952 F. Supp. 1119, 1124 (W.D. Pa. 1997); Young v. New Haven Advocate, 315 F.3d
256, 263 (4th Cir. 2002); Tamburo v. Dworkin, 601 F.3d 693, 707 (7th Cir. 2010)
(each applying traditional libel tests for personal jurisdiction to online
publications, requiring the publication to be intentionally targeted towards
citizens of the state).
 Gordon v. Love, No. B256367, 2016 WL 374950, at *2 (Cal. Ct.
App. Feb. 1, 2016). The exact language of the tweet in question was “I was
fucking devastated when Rhonda J. Holmes, Esquire, of San Diego was bought off
@FairNewsSpears perhaps you can get a quote.” Id. The tweet was deleted five to seven
minutes after it was posted. Id. at *3. This was Love’s second time being sued for
defamation over comments made on her Twitter account, although the first
lawsuit resulted in a $430,000 settlement before trial. Matthew Belloni, Courtney Love to Pay $430,000 in Twitter
Case, Reuters (Mar. 3, 2011), https://www.reuters.com/article/us-courtneylove/courtney-love-to-pay-430000-in-twitter-case-idUSTRE7230F820110304.
Love, 2016 WL 374950, at *3. The reason actual malice was required in the
case is because Love’s attorney had gained public figure status, which was not
disputed at trial. Id.
Trevino, From Tweets to Twibel*: Why
the Current Defamation Law Does Not Provide for Jay Cutler’s Feelings, 19 Sports Law J. 49, 61–63 (2012) (describing a series of libel
lawsuits stemming from social media posts).
See Lori A.
Wood, Cyber-Defamation and the Single
Publication Rule, 81 B.U. L. Rev.
895, 915 (2001) (calling for courts to define “republication” in the context of
See, e.g., Firth v. State, 775 N.E.2d 463, 466 (N.Y. 2002); Van Buskirk v. N.Y. Times Co., 325 F.3d 87, 90 (2d Cir. 2003); Oja v. U.S. Army Corps of Eng’rs, 440 F.3d 1122, 1130–31 (9th Cir. 2006); Nationwide Bi-Weekly Admin., Inc. v. Belo Corp., 512 F.3d 137, 144 (5th Cir. 2007). But see Swafford v. Memphis Individual Prac. Ass’n, 1998 Tenn. App. LEXIS 361, at *38 (Tenn. App. 1998).
When Shawn Ellis extended his middle finger while
riding in the passenger seat of a vehicle on U.S. Highway 52, he likely did not
know that he would become involved in the latest of a string of appellate cases
on the First Amendment.
The First Amendment provides that “Congress shall
make no law . . . abridging the freedom of speech . . . .” Freedom
of speech under the First Amendment was incorporated against the states via the
Fourteenth Amendment, limiting the ability of the states to restrict freedom of
speech under the United States Constitution. Expressive
conduct outside of verbal speech can also merit First Amendment protections if
there is an intent to convey a particularized message and there is a great
likelihood that the message will be understood by those who view it in the
The extension of one’s middle finger, colloquially
known as shooting or flipping the bird, has
a long history of being used to express emotions ranging from anger and protest
to comfort and familiarity. While
this gesture can be used to express contempt, several courts have been
reluctant to conclude that the middle finger gesture falls into a category of
unprotected speech that can be prosecuted. For
example, the Sixth Circuit recently determined that a police officer did not
have reasonable suspicion or probable cause of criminal activity to stop
plaintiff a second time simply because she extended her middle finger after the
The court reasoned that the plaintiff violated no identified law and that “[a]ny
reasonable officer would know that a citizen who raises her middle finger
engages in speech protected by the First Amendment.”
Fighting words, however, are one exception to the
First Amendment; they are words “which by
their very utterance inflict injury or tend to incite an immediate breach of
The Supreme Court further explained that fighting words are not essential to
the discussion of ideas, and any benefit to the social discourse derived from
them is outweighed by society’s interest in morality and order. Despite
the expressive value of extending one’s middle finger, courts are more willing
to conclude that the gesture can support a disorderly conduct charge if there
are other disruptive circumstances or if a third party can testify that they felt
offended or threatened. For
example, the Third Circuit held that a police officer had probable cause to charge
plaintiff with disorderly conduct under the totality of the circumstances,
namely the plaintiff’s display of his middle finger and aggressive driving
directed at another driver on the road.
With additional disruptive circumstances, a court is more likely to conclude
that the speech constitutes fighting words and that the person using such
speech can be charged with disorderly conduct. For expressive
purposes, disorderly conduct statutes have been limited by the Supreme Court to
the proscription of fighting words.
In State v.
the defendant was stopped by a police officer after the officer observed the defendant
extending his middle finger in the officer’s general direction. The
defendant was initially using a waving gesture as his vehicle drove past the
stopped officer, but after the defendant’s vehicle passed the officer, the
defendant changed his gesture to an extended middle finger.
There were other vehicles moving down the highway near the defendant’s vehicle. In
its initial opinion, the North Carolina Court of Appeals concluded that this
conduct was sufficient for an officer to have reasonable suspicion of
disorderly conduct. The
panel then withdrew its initial opinion and substituted it with another
opinion; the panel majority clarified that the officer had reasonable suspicion
of disorderly conduct because there was an objective basis to believe that the
defendant’s gesture could have been directed at a third party and that the
changing gestures suggested that the potential disorderly conduct was
While the court noted cases concluding that giving a middle finger to law
enforcement is protected by the First Amendment, the court distinguished them
by concluding that the possibility that defendant’s middle finger could have
been directed at a third party was a sufficient basis for reasonable suspicion
for disorderly conduct. According
to the court, this reasonable suspicion justified the stop and later justified
the defendant’s charge and conviction of resisting, delaying, or obstructing a
public officer for failing to provide his identification.
The standard for a police officer to conduct a
traffic stop is reasonable suspicion of criminal activity,
which is a lower standard than probable cause of criminal activity.
For reasonable suspicion, the police officer must, under the totality of the
circumstances, have specific and articulable facts supporting a suspicion of
criminal activity. An
innocent explanation for suspicious conduct does not defeat reasonable
and innocent conduct can contribute to reasonable suspicion under the totality
of the circumstances.
However, as the dissenting opinion notes, the
majority’s opinion in Ellis seems to
disregard the First Amendment protections for defendant’s speech.
There is a sizeable amount of authority from around the United States
concluding that extending one’s middle finger in the presence of third parties
does not constitute disorderly conduct under the First Amendment. Furthermore,
there is also authority concluding that simply displaying one’s middle finger
is insufficient for reasonable suspicion of criminal activity under the First
In both Cruise-Gulyas v. Minard
and Ellis, for example, an officer
stopped someone after they displayed their middle finger in the direction of
While the Sixth Circuit concluded that the officer in Cruise-Gulyas lacked reasonable suspicion to stop the plaintiff in
response to the gesture under the First Amendment, the court of appeals in Ellis distinguished Cruise-Gulyas on the basis that it was unclear whom the gesture was
directed at in Ellis, even though it
seems unlikely that there were no other drivers on the street who might have
seen the gesture in Cruise-Gulyas.
Just as there was no reasonable suspicion of criminal activity and “[a]ny
reasonable officer would know that a citizen who raises her middle finger
engages in speech protected by the First Amendment” in Cruise-Gulyas,
the same should be true in Ellis. Furthermore,
other courts have viewed the middle finger as sufficient for reasonable
suspicion or probable cause of criminal activity only when there are other
disruptive circumstances associated with the conduct or a third party can
testify that they felt offended or threatened.
Unlike in Favata v. Seidel, there
were no other disruptive circumstances in Ellis,
such as reckless driving, to justify reasonable suspicion or probable cause of disorderly
The Ellis opinion does find some
support in North Carolina case law, but one of the more helpful cases for the Ellis opinion is also likely
inconsistent with other authorities interpreting the First Amendment.
On a practical note, the Ellis opinion will give law enforcement broader discretion to stop
people, even if the stops are only motivated by personal animus. While the
motivation of an officer might not be legally relevant when determining whether
the officer had reasonable suspicion,
such stops can undermine community faith in law enforcement. To
justify such a stop, an officer would only need to claim that the offensive
conduct of the defendant occurred in the presence of a third party. As in Ellis, the State would not need to provide
evidence that the third party was actually offended by the gesture or even
observed the gesture. If
the analysis of this question focused purely on reasonable suspicion standards
under North Carolina law, this outcome might be logical due to the lower
standard required for reasonable suspicion. However, in light of the
protections for expressive conduct under the First Amendment, law enforcement officers
stopping someone simply for using expressive, albeit distasteful, conduct in
the presence of others is inconsistent with our constitutional freedoms and
Given our nation’s long history of protecting dissident speech under the First
Amendment even when it happens to be offensive, extending a middle finger
should not be a criminal offense, and it should not be treated as reasonable
suspicion of a criminal offense simply because a third party might have seen
Mr. Ellis is in the process of appealing the panel’s
In light of this appeal, the North Carolina Supreme Court should establish that
the First Amendment protects expressive conduct in the form of extending a
middle finger in public.
See Cruise-Gulyas v. Minard, 918 F.3d 494, 497 (6th Cir. 2019)
(holding that plaintiff’s extension of middle finger did not justify officer
stopping her a second time because the gesture was protected under the First
Amendment and the gesture itself did not create probable cause or any
reasonable suspicion of any criminal act); Swartz v. Insogna, 704 F.3d 105, 110
(2d Cir. 2013) (holding that traffic stop was not lawful because plaintiff
giving officer middle finger while riding in vehicle did not create a reasonable
suspicion of criminal activity); Sandul v. Larion, 119 F.3d 1250, 1255 (6th
Cir. 1997) (holding that, despite defendant directing his middle finger and
profane language at protestors while driving, “a reasonable officer should have
known that the words and gestures employed by Sandul amounted to protected
speech” because they were not likely to incite an immediate breach of the peace
when Sandul’s vehicle was traveling quickly on the opposite side of the street
from the protestors, the incident only lasted a few seconds, there was no
evidence that any protestor was offended or even acknowledged the conduct
except for the officer, and there was no face-to-face contact between Sandul
and protestors), cert. dismissed, 522
U.S. 979 (1997); Duran v. City of Douglas, 904 F.2d 1372, 1378 (9th Cir. 1990)
(holding that vehicle passenger’s use of profanity and display of middle finger
to police officer protected by the First Amendment); Youngblood v. Qualls, 308
F. Supp. 3d 1184, 1190, 1195–97 (D. Kan. 2018) (holding that plaintiff’s
display of middle finger and use of profanity directed at neighbor’s house was
insufficient for probable cause for disorderly conduct under Kan. Stat. Ann. § 21-6203 and the First
Amendment); Brown v. Wilson, No. 1:12-CV-1122-DAE, 2015 U.S. Dist. LEXIS 88871,
at *8–14 (W.D. Tex. July 9, 2015) (holding that plaintiff’s middle finger to
police officer while driving was not in violation of Texas’s disorderly conduct
statute and did not fall under the fighting words exception to the First
Amendment because there was no indication of actual or threatened violence
tending to incite an immediate breach of the peace); Corey v. Nassan, No.
05-114, 2006 U.S. Dist. LEXIS 68521, at *23–37 (W.D. Pa. Sept. 25, 2006)
(holding that plaintiff’s alleged raising of his middle finger to police
officer while driving was protected by the First Amendment in part because of
the absence of “some particularized showing that the gesture in the specific
factual context constitutes ‘fighting words’ or is otherwise illegal”); Perkins
v. City of Gahanna, No. C2-99-533, 2000 U.S. Dist. LEXIS 23209, at *5–11 (S.D.
Ohio Sept. 21, 2000) (holding that plaintiff’s display of middle finger to
police officer as he was leaving a police station was protected by the First
Amendment and not disorderly conduct); Nichols v. Chacon, 110 F. Supp. 2d 1099,
1101, 1110 (W.D. Ark. 2000) (holding that officer improperly charged plaintiff
with disorderly conduct after officer observed plaintiff display his middle
finger while driving because the disorderly conduct statute, Ark. Code Ann. § 5-71-207(a)(3), was
limited to fighting words and the display of one’s middle finger did not
constitute fighting words); United States v. McDermott, 971 F. Supp. 939,
942–43 (E.D. Pa. 1997) (holding that defendant’s use of profanity with only
officers and two other people present insufficient for fighting words exception
under disorderly conduct statute); Cook v. Bd. of the Cty. Comm’rs, 966 F.
Supp. 1049, 1052 (D. Kan. 1997) (holding that “the Court cannot infer that a
reasonable police officer would necessarily believe that plaintiff was engaged
in disorderly conduct or that — in light of clearly established law and the
information known to Officer Drake — a reasonable police officer would have
had probable cause to arrest plaintiff and charge him with disorderly conduct
in violation of Kansas Law” when plaintiff displayed his middle finger while
driving past officer’s parked patrol car); Freeman v. State, 805 S.E.2d 845,
849–51 (Ga. 2017) (holding that defendant’s disorderly conduct conviction based
on his display of his middle finger in church was improper because the statute Ga. Code Ann. § 16-11-39(a)(1), as
applied to expressive conduct under the First Amendment, only criminalized
fighting words and there was no evidence that defendant engaged in any other
threatening conduct or intended anything other than protest against secular
education); In re Fechuch, No. 2005 AP 02 0012, 2005 Ohio App. LEXIS 3941, at
*3–9 (Ohio Ct. App. Aug. 16, 2005) (holding that there was insufficient
evidence to support defendant’s conviction for disorderly conduct because
defendant’s use of profanity and her middle finger did not constitute fighting
words under the First Amendment as they were not inherently likely to provoke a
violent reaction from the ordinary citizen); Coggin v. State, 123 S.W.3d 82,
87–88, 91–92 (Tex. App. 2003) (holding that the evidence at trial was legally
insufficient to uphold defendant’s conviction of disorderly conduct after
defendant in car displayed his middle finger to driver of another car because
the interaction was brief, there was no actual or threatened violence, and the
interaction was not face-to-face).
See Favata v. Seidel, 511 F. App’x. 155, 159–60 (3d Cir. 2013)
(holding that there was probable cause for disorderly conduct because plaintiff
was driving recklessly in addition to displaying his middle finger); City of
Akron v. Lorenzo, No. 20475, 2001 Ohio App. LEXIS 4327, at *8 (Ohio Ct. App.
Sept. 26, 2001) (holding that it was not a manifest miscarriage of justice for
a trial court to find defendant guilty of disorderly conduct under fighting
words exception because defendant repeatedly shouted profanities at officers
and displayed his middle finger); State v. Wood, 679 N.E.2d 735, 739–40 (Ohio.
Ct. App. 1996) (holding that defendant’s conviction for disorderly conduct was proper
after concluding that defendant’s actions, namely approaching university police
officers and then repeatedly using profanities against them and displaying his
middle finger to them, constituted fighting words); In re S.J.N-K., 647 N.W.2d
707, 711–13 (S.D. 2002) (holding that there was sufficient evidence to justify
a guilty jury verdict for disorderly conduct under the fighting words exception
after defendant repeatedly displayed middle finger and mouthed profanity to
school principal while following principal in car); Estes v. State, 660 S.W.2d
873, 874–75 (Tex. App. 1983) (holding that there was sufficient evidence to
justify a guilty jury verdict for disorderly conduct after defendant displayed
his middle finger to high school principal and principal resisted “animal
instinct to retaliate” because the gesture could have constituted fighting
words to an average person).
See, e.g., Wood, 679
N.E.2d at 739–40 (holding that defendant’s conviction for disorderly conduct
proper after concluding that defendant’s actions, namely approaching university
police officers and then repeatedly using profanities against them and
displaying his middle finger to them, constituted fighting words).
See Gooding v. Wilson, 405 U.S. 518, 527–28 (1972); State v.
Summrell, 192 S.E.2d 569, 574–76 (N.C. 1972), overruled in part on other grounds in State v. Barnes, 380 S.E.2d
118, 119 (N.C. 1989).
 No. COA18-817, 2019 N.C. App. LEXIS
713 (N.C. Ct. App. Aug. 20, 2019)
petition for writ of supersedeas filed, motion
for temporary stay allowed, No. 340A19-1, 2019 N.C. LEXIS 848 (N.C. Aug.
29, 2019). While this case was officially filed for publication by the North
Carolina Court of Appeals on August 20, 2019, it has not been given an official
reporter designation at the time of this publication.
See State v. Barnard, 658 S.E.2d 643, 645 (N.C. 2008).
See State v. Johnson, 803 S.E.2d 137, 139 (N.C. 2017).
See Terry v. Ohio, 392 U.S.
1, 20–22 (1968); State v. Styles, 665 S.E.2d 438, 443–40 (N.C. 2008).
See United States v. Arvizu, 534 U.S. 266, 277 (2002); State v.
Williams, 726 S.E.2d 161, 167 (N.C. Ct. App. 2012).
See United States v. Sokolow, 490 U.S. 1, 9–11 (1989); Terry, 392 U.S. at 22.
See State v. Ellis, No. COA18-817, 2019 N.C. App. LEXIS 713, at *22
(N.C. Ct. App. Aug. 20, 2019) (Arrowood, J., dissenting), petition for writ of supersedeas filed, motion for temporary stay allowed, No. 340A19-1, 2019 N.C. LEXIS
848 (N.C. Aug. 29, 2019).
See Sandul v. Larion, 119 F.3d 1250, 1255 (6th Cir. 1997) (holding
that, despite defendant directing his middle finger and profane language at
protestors while driving, “a reasonable officer should have known that the
words and gestures employed by Sandul amounted to protected speech” because
they were not likely to incite an immediate breach of the peace when Sandul’s
vehicle was traveling quickly on the opposite side of the street from the
protestors, the incident only lasted a few seconds, there was no evidence that
any protestor was offended or even acknowledged the conduct except for the
officer, and there was no face-to-face contact between Sandul and protestors), cert. dismissed, 522 U.S. 979 (1997); Youngblood v. Qualls, 308 F.
Supp. 3d 1184, 1190, 1195–97 (D. Kan. 2018) (holding that plaintiff’s display
of middle finger and use of profanity directed at neighbor’s house was
insufficient for probable cause for disorderly conduct under Kan. Stat. Ann. § 21-6203 and the First
Amendment); United States v. McDermott, 971 F. Supp. 939, 942–43 (E.D. Pa.
1997) (holding that defendant’s use of profanity with only officers and two
other people present insufficient for fighting words exception under disorderly
conduct statute); Freeman v. State, 805 S.E.2d 845, 849–51 (Ga. 2017) (holding
that defendant’s disorderly conduct conviction based on his display of his
middle finger in church was improper because the statute Ga. Code Ann. § 16-11-39(a)(1), as
applied to expressive conduct, only criminalizes fighting words and there was
no evidence that defendant engaged in any other threatening conduct or intended
anything other than protest against secular education); Coggin v. State, 123
S.W.3d 82, 91–92 (Tex. App. 2003) (holding that the evidence at trial was
legally insufficient to uphold defendant’s conviction of disorderly conduct
after defendant in car displayed his middle finger to driver of another car
because the interaction was brief, there was no actual or threatened violence,
and the interaction was not face-to-face).
See, e.g., Cruise-Gulyas v. Minard, 918 F.3d 494, 497 (6th Cir.
2019) (holding that plaintiff’s extension of middle finger did not justify
officer stopping her a second time because the gesture was protected under the
First Amendment and the gesture itself did not create probable cause or any
reasonable suspicion of any criminal act); Sandul,
119 F.3d at 1255.
See, e.g., Favata v. Seidel, 511 F. App’x. 155, 159–60 (3d Cir.
2013) (holding that there was probable cause for disorderly conduct because
plaintiff was driving recklessly in addition to displaying his middle finger);
State v. Wood, 679 N.E.2d 735, 739–40 (Ohio. Ct. App. 1996) (holding that
defendant’s conviction for disorderly conduct was proper after concluding that
defendant’s actions, namely approaching university police officers and then
repeatedly using profanities against them and displaying his middle finger to
them, constituted fighting words).
Seeid. at 156–57, 159–60;
Ellis, 2019 N.C. App. LEXIS 713, at
See In re V.C.R., 742 S.E.2d 566, 568, 570–71 (N.C. Ct. App. 2013)
(holding that officer had reasonable suspicion to seize teenage defendant for
disorderly conduct under N.C. Gen. Stat. §
14-288.4(a)(2) after officer began driving away and defendant said, “What the
fuck, man?”). It is unlikely that a reasonable person would sincerely believe that
a teenager’s use of what was likely rhetorical profanity amongst friends would be
plainly likely to provoke violent retaliation and thereby cause a breach of the
peace. Furthermore, such speech is likely protected by the First Amendment. Compareid., withCruise-Gulyas, 918 F.3d at 497 (holding
that officer’s second stop of plaintiff after plaintiff extended her middle
finger was not based on reasonable suspicion of any criminal act and that
plaintiff’s gesture was protected under the First Amendment).
See Whren v. United States, 517 U.S. 806, 813 (1996); State v. Nicholson,
813 S.E.2d 840, 846 (N.C. 2018).
See Albert J. Reiss, Jr., The Police
and the Public 175–76 (1971).
See State v. Ellis, No. COA18-817, 2019 N.C. App. LEXIS 713, at *2–3
(N.C. Ct. App. Aug. 20, 2019); id. at
*22 (Arrowood, J., dissenting).
See, e.g., Texas v. Johnson, 491 U.S. 397, 414 (1989); Cohen v.
California, 403 U.S. 15, 25–26 (1971).
See State v. Ellis, No. COA18-817, 2019 N.C. App. LEXIS 713 (N.C.
Ct. App. Aug. 20, 2019), petition for
writ of supersedeas filed, motion for
temporary stay allowed, No. 340A19-1, 2019 N.C. LEXIS 848 (N.C. Aug. 29,