Free Speech Arguments

Episode 38: State of Washington v. Meta Platforms, Inc.State of Washington v. Meta Platforms, Inc., argued before the Supreme Court of Washington on October 28, 2025. Argued by Robert McKenna (on behalf of Meta Platforms, Inc.) and Cristina Sepe, Deputy Solicitor General of the State of Washington (on behalf of State of Washington) .Background of the case, from the Supplemental Brief of Petitioner Meta:The campaign finance law at issue here has made it irrational and unworkable for digital platforms to carry political ads targeting Washington state and local elections. Major platforms have banned these ads as a result. The law tips the scales against disempowered political actors who need low-cost but effective digital advertising to communicate with voters. And the State has failed to justify that result under the First Amendment.In 2018, the State expanded the Fair Campaign Practices Act (FCPA) to impose burdensome disclosure obligations on “digital communication platforms.” The State now requires such platforms to maintain extensive information about any advertisement in the last five years that constitutes “political advertising,” and disclose this information upon request to any person or entity—anywhere in the world and at any time—within two business days. Candidates and campaigns, meanwhile, have less demanding disclosure obligations.And even minor noncompliance carries significant penalties for platforms: Based on its failure to timely satisfy 12 requests for information from just three individuals, Meta faces a $35 million judgment. There is no reason for Meta—or any other platform operator—to incur the threat of massive penalties (and high compliance costs), by continuing to carry ads that provide very little revenue. It is no surprise, then, that Meta and others banned Washington political ads from their platforms.Statement of the Issues, from the Supplemental Brief of Petitioner Meta:Whether the FCPA and implementing regulations violate the First Amendment because they impose unjustifiable burdens on digital communication platforms and fail to further the State’s purported interest in educating its electorate about political ad purchasers and their expenditures through narrowly tailored means. See RCW 42.17A.345(1); WAC 390-18-050 (together, “disclosure law”).Whether a penalty imposed for violating the disclosure law’s obligation to provide responsive information “promptly upon request” should be calculated based on the number of requests or the number of ads subject to each request.Whether a $35 million judgment against Meta for failing to respond to 12 requests with every piece of required information within two business days is an unconstitutionally excessive fine under the Eighth Amendment.Resources:Institute for Free Speech amicus brief in Meta v. State of WashingtonDisclosure law text (RCW 42.17A.345)Disclosure law text (WAC 390-18-050)Supplemental Brief of Petitioner MetaSupplemental Brief of Respondent State of WashingtonThe Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment. If you’re enjoying the Free Speech Arguments podcast, please subscribe and leave a review on your preferred podcast platform. To support the Institute’s mission or inquire about legal assistance, please visit our website: www.ifs.org

Episode 37: Chiles v. Salazar Chiles v. Salazar, argued before the Supreme Court of the United States on October 7, 2025. Argued by James Campbell (on behalf of Kaley Chiles), Hashim Mooppan, Principal Deputy Solicitor General (on behalf of the United States), and Shannon Stevenson, Colorado Solicitor General (on behalf of Patty Salazar).Case Background (from the Supreme Court question presented): Kaley Chiles is a licensed counselor who helps people by talking with them. A practicing Christian, Chiles believes that people flourish when they live consistently with God’s design, including their biological sex. Many of her clients seek her counsel precisely because they believe that their faith and their relationship with God establishes the foundation upon which to understand their identity and desires. But Colorado bans these consensual conversations based on the viewpoints they express. Its content- and viewpoint-based Counseling Restriction prohibits counseling conversations with minors that might encourage them to change their “sexual orientation or gender identity, including efforts to change behaviors or gender expressions,” while allowing conversations that provide “[a]cceptance, support, and understanding for … identity exploration and development, including … [a]ssistance to a person undergoing gender transition.” Colo. Rev. Stat. § 12- 245-202(3.5).  The Tenth Circuit upheld this ban as a regulation of Chiles’s conduct, not speech. In doing so, the court deepened a circuit split between the Eleventh and Third Circuits, which do not treat counseling conversations as conduct, and the Ninth Circuit, which does.  Question presented: Whether a law that censors certain conversations between counselors and their clients based on the viewpoints expressed regulates conduct or violates the Free Speech Clause Resources: Merits brief of the Petitioner Supreme Court docket Institute for Free Speech amicus brief The Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment. If you’re enjoying the Free Speech Arguments podcast, please subscribe and leave a review on your preferred podcast platform. To support the Institute’s mission or inquire about legal assistance, please visit our website: www.ifs.org

Episode 36: Center for Arizona Policy, Inc., et al. v. Arizona Secretary of State, et al.Center for Arizona Policy, et al. v. Arizona Secretary of State, et al., argued before the Arizona Supreme Court on September 11, 2025. Argued by Andrew Gould (on behalf of Center for Arizona Policy, Inc., et al.) and Eric Fraser and Alexander Samuels on behalf of Arizona.Background of the case [from the Institute for Free Speech amicus brief]: Proposition 211 imposes sweeping disclosure rules unlike anything seen before. On every metric, the law expands on its predecessors. It covers more people, more speech, for longer time. Where other laws narrow, Proposition 211 widens. It is a drastic evolution in compelled disclosure—and one that should not survive constitutional scrutiny. But what kind of scrutiny even applies? The First Amendment requires what’s called “exacting scrutiny.” See Ams. for Prosperity Found. v. Bonta, 594 U.S. 595, 607 (2021) (“AFPF”). It’s a high bar in theory—part of the increasingly convoluted “tiers of scrutiny” the federal courts have adopted. Under this standard, a law’s constitutionality often boils down to “if, in the judge’s view, the law is sufficiently reasonable or important.” United States v. Rahimi, 602 U.S. 680, 731 (2024) (Kavanaugh, J., concurring). Yet that “kind of balancing approach to constitutional interpretation” is inconsistent with “what judges as umpires should strive to do.” Id. (Kavanaugh, J., concurring).  Fortunately, “the Arizona Constitution provides broader protections for free speech than the First Amendment.” Brush & Nib Studios, LC v. Phoenix, 247 Ariz. 269, 281 (Ariz. 2019). Those protections do not depend on courts weighing the value of amorphous governmental interests. Rather, Arizona’s Constitution guarantees that “[e]very person may freely speak, write, and publish on all subjects.” Ariz. Const. art. II, § 6. And this Court has taken a “more literal application” of that language, mandating that courts “avoid, where possible, attempts to erode [these rights] by balancing them against . . . governmental interests,” Mountain States Tel. & Tel. Co. v. Ariz. Corp. Comm’n, 160 Ariz. 350, 357 (Ariz. 1989).  That means laws like Proposition 211 do not live or die based on the freewheeling balancing that tests like “exacting scrutiny” rely on. If the law burdens the right to speak freely, it violates the Arizona Constitution unless the state can show it prevents abuse. See Plaintiffs’ Supp. Br. at 5–6. And since no one disputes that Proposition 211’s expansive disclosure rules deter protected speech, and no one argues that it targets abusive speech, it cannot survive scrutiny.  Statement of the issues [from the Arizona Supreme Court docket listing]: Is the Voters’ Right to Know Act facially unconstitutional under the Ariz. Constitution? If not, did the court of appeals properly dismiss Plaintiffs-Appellants’ as-applied challenge?Resources: Proposition 211 Language Institute for Free Speech Amicus Brief Institute for Free Speech Press Release The Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment. If you’re enjoying the Free Speech Arguments podcast, please subscribe and leave a review on your preferred podcast platform. To support the Institute’s mission or inquire about legal assistance, please visit our website: www.ifs.org

Episode 35: Gays Against Groomers, et al. v. Garcia, et al.Gays Against Groomers, et al. v. Garcia, et al., argued before Judges Joel M. Carson, David M. Ebel, and Richard E. N. Federico in the U.S. Court of Appeals for the Tenth Circuit on September 10, 2025. Argued by Institute for Free Speech Senior Attorney Del Kolde (on behalf of Gays Against Groomers, et al.) and Edward T. Ramey (on behalf of Garcia, et al.)Background of the case [from the Institute for Free Speech case page]:Colorado legislators’ actions to suppress and ban disfavored speech during public comment time on HB24-1071, dubbed “Tiara’s Law,” represent an alarming assault on First Amendment rights. Trans ideology requires adherents to use a trans-identifying person’s preferred pronouns and adopted trans name. Doing otherwise is called “misgendering” or “deadnaming.” During hearings on what its sponsors called “Tiara’s Law” certain legislators required that all speakers refrain from misgendering or deadnaming and engage only in “respectful discourse.” Speakers who failed to comply were interrupted, cut off, and prevented from expressing their opinions, including that “Tiara” is a male felon who illustrates why name changes should not be so easy. One speaker even had her testimony erased from the public record.  That’s why Institute for Free Speech attorneys filed a federal lawsuit on behalf of the group Gays Against Groomers, the Rocky Mountain Women’s Network, and individuals from those groups affected by this attempt to shut down debate over transgender legislation. The lawsuit, filed in the U.S. District Court for the District of Colorado, named Colorado State Representatives Lorena Garcia, Mike Weissman, Leslie Herod, and State Senators Julie Gonzales and Dafna Michaelson Jenet as having unlawfully restricted or chilled speech related to trans issues, particularly as it pertains to debate over “Tiara’s Law.” Statement of the issues [from the Appellants’ Opening Brief]:Does the First Amendment prohibit state actors from engaging in viewpoint discrimination during the public comment portions of legislative committee hearings, which the parties agree are limited public fora?Do legislators enjoy absolute legislative immunity for enforcing a viewpoint-based censorship regime during a public comment period on pending legislation that results in the silencing of individuals who dissent from transgender ideology, including the concepts of “misgendering” and “deadnaming?”Is legislative immunity a personal defense available to legislators sued in their official capacities for declarative and injunctive relief?Are claims for injunctive and declaratory relief moot where defendant legislators still maintain vague and subjective decorum rules, have previously censored disfavored views on a current topic, do not disavow future enforcement, and have erased, but not restored, a public comment due to the viewpoint expressed?In a case involving a dispute about transgender ideology, is it unlawful and prejudicial for the district court to require parties and their counsel to adhere to transgender ideology, including to conform their speech to the ideology by mandating the use of preferred pronouns contrary to their conscience and providing for a reporting mechanism for those who do not comply?Resources:Institute for Free Speech Case PageAppellants’ Opening BriefAppellees’ Answer BriefAppellants’ Reply BriefThe Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment. If you’re enjoying the Free Speech Arguments podcast, please subscribe and leave a review on your preferred podcast platform. To support the Institute’s mission or inquire about legal assistance, please visit our website: www.ifs.org

Episode 34: Moving Oxnard Forward, Inc. v. Lourdes LopezMoving Oxnard Forward, Inc. v. Lourdes Lopez, argued en banc before Chief Judge Mary H. Murguia and Circuit Judges Kim McLane Wardlaw, Consuelo M. Callahan, Jacqueline H. Nguyen, John B. Owens, Ryan D. Nelson, Eric D. Miller, Daniel P. Collins, Lawrence VanDyke, Lucy H. Koh, and Jennifer Sung for the U.S. Court of Appeals for the Ninth Circuit on September 9, 2025. Argued by Chad Morgan (on behalf of Moving Oxnard Forward, Inc.) and Holly Whatley on behalf of Lourdes Lopez. Background of the case [from the Institute for Free Speech case page]:The City of Oxnard in California crafted a campaign finance law aimed at silencing its most vocal critic. That’s why the Institute for Free Speech filed an amicus brief in Moving Oxnard Forward, Inc. v. Lourdes Lopez. The brief argues that “the city’s deliberate attempt to silence a challenger by eliminating the financing that only he used is an attack on the democratic process, and the First Amendment requires an ‘independent and careful’ review under closely drawn scrutiny.” The City of Oxnard targeted Aaron Starr and his nonprofit organization Moving Oxnard Forward through Measure B, a ballot measure that included caps on individual contributions to political campaigns. Starr has been a vocal critic of members of the Oxnard City Council, and Measure B’s restrictions would disproportionately affect Starr’s primary form of fundraising. Over the years, the Supreme Court has determined that contribution limits must be aimed at “quid pro quo corruption or its appearance.” However, as the panel’s opinion in the case notes, “Measure B’s campaign finance limits were much more closely drawn to the prohibited objective of stopping Starr rather than remedying corruption concerns.” In addition to challenging the constitutionality of Measure B, the brief also calls on the Ninth Circuit to overturn decisions in Montana Right to Life Ass’n v. Eddleman and Lair v. Motl., stating that the erroneous decisions “bless government abridgement of speech and association with the use of a standard that falls short even of intermediate scrutiny.” Resources:CourtListener page for Moving Oxnard Forward, Inc. v. Lourdes LopezInstitute for Free Speech amicus briefNinth Circuit OpinionCity of Oxnard Measure BThe Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment. If you’re enjoying the Free Speech Arguments podcast, please subscribe and leave a review on your preferred podcast platform. To support the Institute’s mission or inquire about legal assistance, please visit our website: www.ifs.org

Episode 33: Lowery v. MillsLowery v. Mills, argued before Circuit Judges Jerry E. Smith, Dana M. Douglas, and Carolyn Dineen King in the U.S. Court of Appeals for the Fifth Circuit on August 4, 2025. Argued by Institute for Free Speech Senior Attorney Del Kolde on behalf of Prof. Richard Lowery and Jeff Oldham on behalf of the University of Texas at Austin officials. Background of the case [from the Institute for Free Speech case page]: Prof. Richard Lowery, an Associate Professor of Finance at the McCombs School of Business at the University of Texas at Austin (UT), said the officials at the state’s flagship university violated his constitutional right to criticize government officials. With the help of the Institute for Free Speech, Prof. Lowery sued UT officials who threatened to punish him for his criticism of the university administration by threatening his job, reducing his pay, and ending his affiliation with UT’s Salem Center.  One key target of Prof. Lowery’s critiques was the UT administration’s use of diversity, equity, and inclusion (DEI) requirements to filter out competent academics who dissent from the DEI ideology. He also opined during a podcast that part of the job of university presidents in red states is to deceive republicans into funding leftwing indoctrination on college campuses.  Statement of the issues [from the Plaintiff-Appellant’s Opening Brief]: Have subsequent Supreme Court and Fifth Circuit decisions overruled or cabined to its facts the standard for public-employee First Amendment retaliation claims described in Breaux v. City of Garland, 205 F.3d 150 (5th Cir. 2000)?  Did Plaintiff state a viable claim for free-speech chilling under Jackson v. Wright, 82 F.4th 362 (5th Cir. 2023) and other cases?  Did Defendants’ choice to repeatedly argue that the standard in Keenan v. Tejeda, 290 F.3d 252 (5th Cir. 2002) applied to Plaintiff’s free speech chilling claim, and the district court’s decision to accept this standard, render this standard binding under the law-of-the-case doctrine and judicial estoppel?  Did the district court err when it withheld various UT documents, reviewed by the magistrate judge in camera, under claims of attorney client privilege, including text messages sent by UT President Jay Hartzell shortly before the pressure campaign against Lowery began?  Did the district court err when it granted a protective order to block all discovery into allegations that President Hartzell engaged in nepotism by using state resources to benefit his son in admission to UT?Resources: Institute for Free Speech Case Page Plaintiff-Appellant’s Opening Brief Brief of Appellees The Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment. If you’re enjoying the Free Speech Arguments podcast, please subscribe and leave a review on your preferred podcast platform. To support the Institute’s mission or inquire about legal assistance, please visit our website: www.ifs.org

Episode 32: OPAWL – Building AAPI Feminist Leadership v. Dave Yost, et al.OPAWL – Building AAPI Feminist Leadership v. Dave Yost, et al., argued before Circuit Judges Raymond M. Kethledge, Eric E. Murphy, and Andre B. Mathis in the U.S. Court of Appeals for the Sixth Circuit on July 23, 2025. Argued by Elisabeth C. Frost (on behalf of OPAWL – Building AAPI Feminist Leadership), Mathura Jaya Sridharan (on behalf of Dave Yost, et al.), and Jason Walta (for Amicus Ohio Education Association).Background of the case, from the Brief of Appellees – Cross Appellants (Second Brief):It is well established that lawful permanent residents (“LPRs”) are entitled to First Amendment protection, including for their political speech. And the Supreme Court has long held that spending to promote or oppose direct democracy measures is core First Amendment expression. Nevertheless, [in 2024], Ohio enacted Ohio Revised Code § 3517.121 (“Section 121”), making it a crime for any noncitizen—including LPRs—to engage in any political spending.Section 121’s broad prohibitions reach every conceivable type of spending, from direct contributions to independent expenditures, whether made “directly or indirectly through any person or entity,” and apply even to spending “in support of or opposition to a statewide ballot issue or question, regardless of whether the ballot issue or question has yet been certified to appear on the ballot.” Id. § 3517.121(B)(2). At the same time, Section 121 invites political weaponization, mandating that the Attorney General investigate any alleged violation made by any Ohio elector. Id. § 3517.121(G)(2)(a). The law’s sheer breadth, lack of tailoring, and threat of unrestrained investigations threaten and will chill the core First Amendment activity of not just noncitizens, but also citizens and domestic organizations who take donations from noncitizens or involve noncitizen decisionmakers….In support, Ohio relies overwhelmingly on a reading of Bluman v. Federal Election Commission, 800 F. Supp. 2d 281, 288 n.3 (D.D.C. 2011), aff’d, 565 U.S. 1104 (2012), that is at odds with the decision itself. Bluman held that Congress may constitutionally prohibit foreign citizens other than LPRs from directly contributing to candidates or to expressly advocate for the election or defeat of a candidate, but in writing for that court, then-Judge Kavanaugh repeatedly cautioned that restrictions on political spending by LPRs or for issue advocacy would raise substantial constitutional questions. See, e.g., id. at 292 (making explicit court was not deciding whether Congress could extend ban to LPRs or restrict noncitizens engaging in “issue advocacy and speaking out on issues of public policy,” warning its holding “should not be read to support such bans”). [Emphasis in original.]The Bluman court was right to be concerned—and this Court should be, too, now that Ohio has enacted such a ban….Resources:CourtListener docket page for OPAWL – Building AAPI Feminist Leadership v. Dave Yost, et al.Ohio Revised Code § 3517.121 (“Section 121”)Brief of Appellants – Cross Appellees (First Brief) [Ohio]Brief of Appellees – Cross Appellants (Second Brief) [OPAWL]The Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment. If you’re enjoying the Free Speech Arguments podcast, please subscribe and leave a review on your preferred podcast platform. To support the Institute’s mission or inquire about legal assistance, please visit our website: www.ifs.org

Episode 31: Libby v. FecteauLibby, et al. v. Fecteau, et al., argued before Circuit Judge Lara Montecalvo, Circuit Judge Seth Aframe, and District Judge Camille Vélez-Rivé in the U.S. Court of Appeals for the First Circuit on June 5, 2025. Argued by Taylor Meehan of Consovoy McCarthy PLLC (on behalf of Laurel Libby, et al.), Harmeet Dhillon, Assistant Attorney General for Civil Rights (for Amicus Curiae United States, supporting appellant), and Jonathan Bolton, Maine Assistant Attorney General (on behalf of Ryan M. Fecteau, et al.).Background of the case, from the Brief of Appellants:In February, Libby took to Facebook to call attention to Maine’s [transgender athlete] policy, borne out at this year’s high school track-and-field state championship. The championship was a public event; the names, schools, and podium photos of participants were widely broadcast and readily accessible online. Libby re-posted already-public, truthful information showing the first-place girls’ pole vaulter previously competed in boys’ pole vault. That first-place finish propelled the athlete’s high school team to win the girls’ state championship by one point.Libby’s post put Maine’s policy in the national spotlight, prompting federal investigations regarding Maine’s noncompliance with federal law. Days later, the Maine House censured Libby along a party-line vote of 75 to 70. The censure resolution called on Libby to “publicly apologize” for bringing “national attention” to Maine. H.R. Res. 1, 132nd Leg., 1st Reg. Sess. (Me. 2025). It denounced Libby’s “statement criticizing the participation of transgender students in high school sports” as “reprehensible” and “incompatible with her duty and responsibilities as a Member of this House.” And while the resolution faulted Libby for identifying a “student athlete by [first] name” and “showing the minor in an athletic uniform” without “consent,” id., the post merely copied public information, showing podium photos from widely publicized state championship events, contained no threats, and violated no law. The resolution omitted that the Speaker and others regularly show minors on their social media, without any indication of consent from the subjects.Dissenting House members criticized the resolution as “a mockery of the censure process,” “set[ting] a standard … that the majority party, when they’re displeased with a social media post that upsets them, can censure a member of the minority party.” Other representatives raised free-speech concerns and sought clarification on whether members who re-posted Libby’s post could “expect censures to come forth on them as well.” The Speaker disclaimed knowledge of “any other censures.”After the censure resolution passed, the Speaker summoned Libby to the well of the House chamber and demanded she apologize. When Libby refused to recant her views, the Speaker found her in violation of Maine House Rule 401(11), providing that a member “guilty of a breach of any of the rules and orders of the House … may not be allowed to vote or speak … until the member has made satisfaction.”Ever since, Libby’s district has had no voice or vote on the House floor. The Speaker has stopped Libby from speaking on any bill, including even posing a question in a recent debate on an equal rights amendment proposed for the state constitution.Statement of the Issue, from Brief of Appellants:Whether Plaintiffs are entitled to a preliminary injunction on their claims under the First and Fourteenth Amendments and the Guarantee Clause [of “a Republican Form of Government].”The Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment. If you’re enjoying the Free Speech Arguments podcast, please subscribe and leave a review on your preferred podcast platform. To support the Institute’s mission or inquire about legal assistance, please visit our website: www.ifs.org

Episode 30: Americans for Prosperity, et al. v. Meyer, et al.Americans for Prosperity, et al. v. Meyer, et al., argued before Circuit Judges Johnnie B. Rawlinson, Patrick J. Bumatay, and Gabriel P. Sanchez in the U.S. Court of Appeals for the Ninth Circuit on May 15, 2025. Argued by Derek L. Shaffer (on behalf of Americans for Prosperity, et al.) and David Kolker (on behalf of Intervenor-Defendant Voters’ Right to Know) and Eric Fraser (on behalf of Arizona Citizens Clean Elections Commission).Background of the case, from the Institute for Free Speech amicus brief:Proposition 211 imposes sweeping disclosure rules unlike anything seen before. On every metric, the law expands on its predecessors. It covers more people, more speech, for a longer time. Where other laws narrow, Proposition 211 widens.….Proposition 211 expands on other disclosure rules in virtually every way. It does not limit disclosure to speech about elections, to speech close in time to elections, or to speech by those engaged mainly in election advocacy. It does not limit disclosure to donors who intend to support election advocacy, or even donors who know their dollars might be used for election advocacy. By expanding every part of an ordinary disclosure rule, Proposition 211 “accomplishes a shift in kind, not merely degree.” See Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 583 (2012) (“NFIB”) (Roberts, C.J., op.). And that shift in kind turns a series of individually problematic provisions into a cataclysmic First Amendment violation.Statement of the Issues, from the Appellants’ Opening Brief:Whether the district court erred in concluding that Proposition 211 is facially valid even though its disclosures are untethered to electoral activity, its burdens surpass the strength of the State’s asserted interest, and its requirements are not narrowly tailored to the problems it purports to solve.Whether the district court erred in concluding that Proposition 211 is valid as applied to Appellants, even though Appellants alleged a reasonable probability that disclosure of their donors’ names will subject them to threats, harassment, or reprisals.Whether the district court erred in concluding that Proposition 211 does not compel association even though its disclosure requirements tie organizations and their donors to candidates and causes irrespective of their actual beliefs.Resources:CourtListener docket page for Americans for Prosperity, et al. v. Meyer, et al.Appellants’ Opening BriefDefendant-Appellees’ Answering BriefAnswering Brief of Appellee-Intervenor DefendantAppellants’ Reply BriefInstitute for Free Speech amicus briefThe Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment. If you’re enjoying the Free Speech Arguments podcast, please subscribe and leave a review on your preferred podcast platform. To support the Institute’s mission or inquire about legal assistance, please visit our website: www.ifs.org

Episode 29: Institute for Free Speech v. J.R. Johnson, et al. Institute for Free Speech v. J.R. Johnson, et al. argued before Chief Judge Jennifer Walker Elrod and Judges Kurt D. Engelhardt and Greg Gerard Guidry in the U.S. Court of Appeals for the Fifth Circuit on April 28, 2025. Argued by Del Kolde (on behalf of the Institute for Free Speech) and Cory R. Liu (on behalf of J.R. Johnson, et al.). Case Background, from the Institute for Free Speech website: Texas law prohibits corporations—including nonprofits—from making “in-kind contributions” to candidates and political committees. The Texas Ethics Commission (TEC) recently interpreted this ban to extend to pro bono litigation services, even when such services aim to challenge the constitutionality of state laws. The Institute for Free Speech (IFS) filed a federal lawsuit against the TEC commissioners and executive director over this ban on pro bono legal services. This law stops organizations like IFS from advocating for the civil rights of Texas candidates and political committees in court. It imposes stiff civil and criminal penalties for violations. The lawsuit argues that the TEC’s interpretation of the Texas Elections Code violates IFS’ First Amendment rights to free speech and association. The TEC’s reading of the law prevents IFS from representing potential clients like Chris Woolsey, a city councilmember in Corsicana, and the Texas Anti-Communist League PAC, headed by Cary Cheshire, both of whom want to contest a state law that compels speech on political signs. Resources: Institute for Free Speech case page Institute for Free Speech press release Plaintiff-Appellant’s Opening Brief  Complaint  The Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment. If you’re enjoying the Free Speech Arguments podcast, please subscribe and leave a review on your preferred podcast platform. To support the Institute’s mission or inquire about legal assistance, please visit our website: www.ifs.org

Episode 28: Associated Press v. Taylor Budowich Associated Press v. Taylor Budowich, argued before a three-judge panel in the U.S. Court of Appeals for the DC Circuit on April 17, 2025. Argued by Eric D. McArthur (on behalf of Appellants Taylor Budowich, et al.) and Charles D. Tobin (on behalf of Appellee Associated Press). Lawyers for the Trump administration are seeking a stay on the DC District Court’s preliminary injunction rescinding “the denial of the AP’s access to the Oval Office, Air Force One, and other limited spaces based on the AP’s viewpoint.” Case Background, from the Memorandum and Order of the U.S. District Court for the District of Columbia: About two months ago, President Donald Trump renamed the Gulf of Mexico the Gulf of America. The Associated Press did not follow suit. For that editorial choice, the White House sharply curtailed the AP’s access to coveted, tightly controlled media events with the President. The AP now sues the White House chief of staff, her communications deputy, and the press secretary (collectively, “the Government”), seeking a preliminary injunction enjoining the Government from excluding it because of its viewpoint.  Today, the Court grants that relief. But this injunction does not limit the various permissible reasons the Government may have for excluding journalists from limited-access events. It does not mandate that all eligible journalists, or indeed any journalists at all, be given access to the President or nonpublic government spaces. It does not prohibit government officials from freely choosing which journalists to sit down with for interviews or which ones’ questions they answer. And it certainly does not prevent senior officials from publicly expressing their own views. No, the Court simply holds that under the First Amendment, if the Government opens its doors to some journalists—be it to the Oval Office, the East Room, or elsewhere—it cannot then shut those doors to other journalists because of their viewpoints. The Constitution requires no less. Resources: District Court Memorandum and OrderCourt Listener Docket The Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment. If you’re enjoying the Free Speech Arguments podcast, please subscribe and leave a review on your preferred podcast platform. To support the Institute’s mission or inquire about legal assistance, please visit our website: www.ifs.org

Episode 27: Local 8027, AFT-New Hampshire, AFL-CIO v. EdelblutLocal 8027, AFT-New Hampshire, AFL-CIO v. Edelblut, argued before Circuit Judge Lara Montecalvo, Senior Circuit Judge William J. Kayatta, Jr., and Circuit Judge Seth Aframe in the U.S. Court of Appeals for the First Circuit on April 8, 2025. Argued by Charles G. Moerdler and Gilles R. Bissonnette (on behalf of Local 8027, AFT-New Hampshire, AFL-CIO, et al.) and Mary A. Triick, Senior Assistant Attorney General (on behalf of Edelblut, et al.).Case Background, from the Brief for Plaintiffs—Appellees Local 8027, AFT-New Hampshire, AFL-CIO:New Hampshire’s “Banned Concepts Law” (or the “Law”) is unconstitutionally vague. Enacted in June 2021, the Law bans the teaching, instruction, advocacy, advancement, and training of—or compelling a student to express belief in or support for—four concepts in public schools and places of public employment. The four concepts implicate aspects of “age, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or physical disability, religion or national origin.”Statement of Issues Presented for Review, from the Brief for Plaintiffs—Appellees Local 8027, AFT-New Hampshire, AFL-CIO:Did the district court correctly hold that the Law violates the Fourteenth Amendment’s Due Process Clause on its face because its “prohibitions against teaching banned concepts are unconstitutionally vague,” and because the law contains “viewpoint-based restrictions on speech that do not provide either fair warning to educators of what they prohibit or sufficient standards for law enforcement to prevent arbitrary and discriminatory enforcement”?As an independent basis for affirmance, does the Law violate the First Amendment where it implicates the private, extracurricular speech of educators on matters of public concern?Resources:CourtListener case docket for Local 8027, AFT-New Hampshire, AFL-CIO v. EdelblutNew Hampshire “Right to Freedom from Discrimination in Public Workplaces and Education” lawBrief for Defendants—AppellantsBrief for Plaintiffs—AppelleesReply Brief for Defendants—AppellantsThe Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment. If you’re enjoying the Free Speech Arguments podcast, please subscribe and leave a review on your preferred podcast platform. To support the Institute’s mission or inquire about legal assistance, please visit our website: www.ifs.org

Episode 26: Parents Defending Education v. Olentangy Local School District, et al.Parents Defending Education v. Olentangy Local School District, argued before the en banc U.S. Court of Appeals for the Sixth Circuit on March 19, 2025. Argued by Cameron Norris (on behalf of Parents Defending Education); Elliott Gaiser, Solicitor General of Ohio (on behalf of Ohio and 22 other states as amici curiae); and Jaime Santos (on behalf of the Olentangy Local School District Board of Education, et al.).Background of the case, from the Institute for Free Speech’s second amicus brief (in support of reversal): While students may freely identify as having genders that do not correspond to their biological sex, other students enjoy the same right to credit their own perceptions of reality—and to speak their minds when addressing their classmates. Students cannot be compelled to speak in a manner that confesses, accommodates, and conforms to an ideology they reject—even if that ideology’s adherents are offended by any refusal to agree with them or endorse their viewpoint. Yet that is what the Olentangy school district’s speech code does.“Pronouns are political.” Dennis Baron, What’s Your Pronoun? 39 (2020). History shows that people have long used pronouns to express messages about society and its structure—often in rebellion against the prevailing ideology. And the same is true today. Choosing to use “preferred” or “non-preferred” pronouns often “advance[s] a viewpoint on gender identity.” Meriwether v. Hartop, 992 F.3d 492, 509 (6th Cir. 2021). So mandating that students use “preferred” pronouns or none at all elevates one viewpoint while silencing the other. It compels students to adopt the district’s ideology on gender identity while at school, and in doing so, “invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.” W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).Statement of the Issues, from the Brief of Appellant Parents Defending Education:The use of gender-specific pronouns is a “hot issue” that “has produced a passionate political and social debate” across the country. Meriwether v. Hartop, 992 F.3d 492, 508-09 (6th Cir. 2021). One side believes that gender is subjective and so people should use others’ “preferred pronouns”; the other side believes that sex is immutable and so people should use pronouns that correspond with biological sex. Id. at 498. Like the general public, students have varying views on this important subject, and the Supreme Court has long recognized that students don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969). Yet the Olentangy Local School District has adopted policies that punish speech expressed by one side of the debate—the use of pronouns that are contrary to another student’s identity. The district court upheld the Policies as consistent with the First Amendment and denied PDE’s preliminary-injunction motion.The issues presented in this appeal are:Whether the District’s speech policies likely violate the First Amendment because they compel speech, discriminate based on viewpoint, prohibit speech based on content without evidence of a substantial disruption, or are overbroad.Whether, if PDE is likely to succeed on the merits, the remaining preliminary-injunction criteria favor issuing a preliminary injunction.Resources:CourtListener docket page for Parents Defending Education v. Olentangy Local School Dist, et al.Brief for Appellant Parents Defending EducationBrief for Appellee Olentangy Local School Dist, et al.Supplemental En Banc Brief of Plaintiff-Appellant Parents Defending EducationInstitute for Free Speech first amicus brief (in support of rehearing en banc)Institute for Free Speech second amicus brief (in support of reversal)

Episode 25: Powell, et al. v. United States Securities and Exchange CommissionPowell, et al. v. United States Securities and Exchange Commission, argued before Circuit Judges Sidney R. Thomas, Daniel A. Bress, and Ana de Alba in the U.S. Court of Appeals for the Ninth Circuit on February 13, 2025. Argued by Margaret A. Little of the New Civil Liberties Alliance (NCLA) (on behalf of Powell, et al.) and Archith Ramkumar (on behalf of the United States Securities and Exchange Commission).Background of the case, from the Institute for Free Speech amicus brief:For more than fifty years, the Securities and Exchange Commission (SEC) has used the threat of debilitatingly expensive litigation to coerce defendants into accepting a lifetime ban on speech. The SEC’s Gag Rule commands that, once defendants have settled, they can never publicly challenge—or even permit others to undermine—the truth of the SEC’s factual allegations, even if those allegations are indisputably false.The SEC’s Gag Rule is a ban not just on speech but a ban on true political speech. It imposes an eternal, viewpoint-discriminatory prior restraint on speech critical of the SEC’s enforcement regime. For a country with “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials,” the unconstitutionality of this policy is clear. New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). Nonetheless, the SEC refuses to initiate a rulemaking to amend its Gag Rule.Statement of Issues Presented, from the Petitioner’s Opening Brief:Whether the Commission acted contrary to constitutional right by refusing to amend 17 C.F.R. § 202.5(e) because the rule violates First Amendment and due process rights and is against public policy.Whether the Commission acted in excess of statutory authority and without observance of procedure required by law by refusing to amend 17 C.F.R. § 202.5(e), which improperly binds individuals outside of SEC.Whether the Commission acted arbitrarily and capriciously when it failed to provide a reasoned explanation for denying the petition to amend 17 C.F.R. § 202.5(e).Resources:CourtListener docket page for Powell, et al. v. SECNCLA case pagePetitioners’ Opening BriefBrief for RespondentPetitioners’ Reply BriefInstitute for Free Speech amicus briefThe Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment. If you’re enjoying the Free Speech Arguments podcast, please subscribe and leave a review on your preferred podcast platform. To support the Institute’s mission or inquire about legal assistance, please visit our website: www.ifs.org

Episode 24: Henderson v. Springfield R-12 School District Henderson v. Springfield R-12 School District, argued en banc before the U.S. Court of Appeals for the Eighth Circuit on January 15, 2025. Argued by Braden H. Boucek of the Southeastern Legal Foundation (on behalf of Brooke Henderson, et al.) and Tina Fowler (on behalf of the Board of Education of the Springfield R-12 School District, et al.). Background of the case, from Circuit Judge Colloton’s Eighth Circuit panel opinion: In 2020, the Springfield R-12 School District required its employees to attend “equity training.” Two employees who attended the training sued the school district and several school officials under 42 U.S.C. § 1983. The plaintiffs alleged that during the training, the defendants compelled them to speak as private citizens on matters of public concern, and engaged in viewpoint discrimination in violation of the First and Fourteenth Amendments. The district court granted summary judgment for the school district on the ground that the plaintiffs did not suffer an injury in fact and thus lacked standing to sue. The court also found that the lawsuit was frivolous and awarded attorney’s fees to the school district. The plaintiffs appeal. Because we agree that the plaintiffs did not establish an injury in fact, we affirm the dismissal. We conclude, however, that the fee award was unwarranted and reverse that portion of the judgment. Statement of Issues Presented for Review, excerpted from the Brief of Appellants: Whether SPS [Springfield Public Schools] unconstitutionally compelled Plaintiffs to speak on matters of public concern and adopt its views in violation of the First Amendment. Whether SPS unconstitutionally discriminated against Plaintiffs’ views when it adopted a position on current affairs and told Plaintiffs that their views were wrong. Whether SPS created an unconstitutional condition of employment when it compelled speech on matters of public concern and engaged in viewpoint discrimination. Whether the district court erred in finding Plaintiffs’ claims frivolous. Whether the district court erred in awarding attorney fees in the amount of $312,869.50 and costs in the amount of $3,267.10 to Defendants. Whether reassignment to a different judge is appropriate on any remand. Resources: The Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment. If you’re enjoying the Free Speech Arguments podcast, please subscribe and leave a review on your preferred podcast platform. To support the Institute’s mission or inquire about legal assistance, please visit our website: www.ifs.org