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    Government

    Free Speech Arguments

    Presented by the Institute for Free Speech

    The Free Speech Arguments Podcast brings you oral arguments from important First Amendment free political speech cases across the country.

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    Copyright: © Institute for Free Speech

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    Latest Episodes:
    Can the Government Constitutionally Use Broad Subpoena Power in a Way that Chills Nonprofit and Donor Speech? (First Choice Women’s Resource Centers v. Platkin) Dec 03, 2025
    Show notes

    Episode 42: First Choice Women’s Resource Centers v. Platkin

    First Choice Women’s Resource Centers v. Platkin, argued before the Supreme Court of the United States on December 2, 2025. Argued by Erin Morrow Hawley, Alliance Defending Freedom, and Vivek Suri, Assistant Solicitor General (on behalf of First Choice Women’s Resource Centers), and Sundeep Subramanian Iyer, Chief Counsel to the Attorney General of New Jersey (on behalf of the state of New Jersey).

    Case Background, from the Institute for Free Speech case page:

    First Choice Women’s Resource Centers is a Christian medical nonprofit serving pregnant women, new mothers, and fathers. The Attorney General of New Jersey has specifically singled out this organization due to its religious beliefs and pro-life stance. New Jersey thus issued a sweeping and unjustified subpoena, demanding extensive documentation from the nonprofit. This places a heavy burden on the organization, forcing it to allocate its limited resources to comply or face legal consequences. Despite this, the Attorney General has not provided any concrete evidence of wrongdoing to warrant such intrusive measures.

    Question Presented, from the Supreme Court docket:

    New Jersey's Attorney General served an investigatory subpoena on First Choice Women's Resource Centers, Inc., a faith-based pregnancy center, demanding that it turn over most of its donors' names. First Choice challenged the Subpoena under 42 U.S.C. 1983 in federal court, and the Attorney General filed a subsequent suit to enforce it in state court. The state court granted the Attorney General's motion to enforce the Subpoena but expressly did not decide First Choice's federal constitutional challenges. The Attorney General then moved in state court to sanction First Choice. Meanwhile, the district court held that First Choice's constitutional claims were not ripe in federal court.

    The Third Circuit affirmed in a divided per curiam decision. Judge Bibas would have held the action ripe as indistinguishable from. Americans for Prosperity Foundation v. Banta, 594 U.S. 595, 618-19 (2021). But the majority concluded First Choice's claims were not yet ripe because First Choice could litigate its constitutional claims in state court. In doing so, the majority followed the rule of the Fifth Circuit and split from the Ninth Circuit. It did not address the likely loss of a federal forum once the state court rules on the federal constitutional issues.

    The question presented is: Where the subject of a state investigatory demand has established a reasonably objective chill of its First Amendment rights, is a federal court in a first-filed action deprived of jurisdiction because those rights must be adjudicated in state court?

    Resources:  

    • Brief for Petitioner First Choice Women’s Resource Center
    • Brief for Respondent Matthew Platkin
    • Institute for Free Speech Amicus Brief
    • Supreme Court 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


    Can the Government Limit Access to a Citizen Flag Pole Based on Viewpoint? (Scaer, et al. v. City of Nashua, et al.) Dec 02, 2025
    Show notes

    Episode 41: Scaer, et al. v. City of Nashua, et al.

    Scaer, et al. v. City of Nashua, et al. argued before the U.S. Court of Appeals for the First Circuit on December 2, 2025. Argued by Institute for Free Speech Attorney Nathan Ristuccia (on behalf of Stephen and Bethany Scaer) and Steven A. Bolton (on behalf of the City of Nashua, NH).

    Case Background, from the Institute for Free Speech case page:

    Should a city be able to pick and choose whose messages are “worthy” to appear on its public “Citizen Flag Pole?” The City of Nashua thinks so—but a federal lawsuit aims to change that.

    Attorneys from the Institute for Free Speech and local counsel Roy S. McCandless filed the lawsuit in the U.S. District Court for the District of New Hampshire on behalf of Bethany and Stephen Scaer (pronounced “scare”), two Nashua residents whose flag requests have been denied. The suit challenges the constitutionality of Nashua’s policy governing the use of its Citizen Flag Pole. The lawsuit seeks to enjoin Nashua city officials from denying flag applications based on viewpoint and from enforcing parts of its flag policy that limit acceptable flags.

    Nashua residents have long used the Citizen Flag Pole to fly flags representing various causes and heritages. However, after a 2022 Supreme Court decision protecting speech in such forums, Nashua officials hastily implemented a new policy to take control over the messages expressed.

    Under the policy, residents can apply to fly flags on the Citizen Flag Pole in front of City Hall. However, the policy states that any message “will be allowed only if it is in harmony with city policies and messages that the city wishes to express and endorse.”

    The Scaers have had multiple flag requests denied, including most recently the Pine Tree Flag to commemorate the Battle of Bunker Hill. The city provided no explanation beyond stating their flags were “not in harmony” with the city’s message. The lawsuit argues that Nashua’s policy violates the First Amendment by imposing viewpoint-based restrictions on speech, creating an unconstitutional prior restraint, and being impermissibly vague and overbroad.

    Statement of the Issues, from the Plaintiffs-Appellants Opening Brief:

    1. Whether governments may avoid First Amendment limits in regulating speech by adopting it as government speech, without acquiring any property interest or permanent possessory interest over that private speech?
    2. Whether a government speaks or merely regulates private speech when it uses its final approval authority to permit or to prohibit the display of certain messages on government property, without shaping or altering the content of those messages?
    3. Whether Plaintiffs are likely to succeed in their claim that the City of Nashua’s policies and practices regarding flags displayed on its Citizen Flag Pole and flag-raising ceremonies conducted on its City Hall Plaza constitute viewpoint discrimination, or are vague, overbroad, or effect a prior restraint on speech?
    4. Whether Plaintiffs are entitled to a preliminary injunction against those policies and practices?

    Resources:  

    • Institute for Free Speech case page (includes all filings)
    • Plaintiffs-Appellants Stephen and Bethany Scaer’s Opening Brief
    • Brief For Defendants-Appellee, City Of Nashua, New Hampshire

    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


    Can the White House Exclude Journalists From Limited-Access Events Based on Viewpoint? (Associated Press v. Taylor Budowich, et al.) Nov 24, 2025
    Show notes

    Episode 40: Associated Press v. Tayor Budowich, et al.

    Associated Press v. Taylor Budowich, et al. argued en banc before the U.S. Court of Appeals for the D.C. Circuit on November 24, 2025. Argued by Yaakov M. Roth, Principal Deputy Attorney General of the United States (on behalf of Taylor Budowich, et al.) and Charles D. Tobin (on behalf of the Associated Press). 

    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.

    Statement of the Issues, from the Brief for the Plaintiff-Appellee The Associated Press:

    Under the First Amendment, the government may not coerce the press and public into using state-preferred language, or punish those who do not comply. The government violated those basic principles when it excluded the AP from the White House press pool and from events open to the White House press corps based solely on the government’s dislike of the term Gulf of Mexico. The White House also took this action without notice to the AP, content-neutral guidelines, or an opportunity for the AP to be heard, violating its Fifth Amendment rights.

    The questions presented are: whether the District Court correctly entered a preliminary injunction ordering the government to immediately rescind this access ban, pursuant to the First Amendment; and whether the Fifth Amendment also prevents such targeting in the absence of due process.

    Resources: 

    • Free Speech Arguments Podcast episode on the original panel circuit argument
    • Statement of the Issues
    • District Court Memorandum and Order
    • Court Listener Docket 
    • Brief for the Appellants
    • Brief for the Plaintiff-Appellee The Associated Press


    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


    Can Schools Ban Parents from Silent Protest on School Grounds? (Fellers v. Kelley) Nov 05, 2025
    Show notes

    Episode 39: Fellers v. Kelley

    Fellers, et al. v. Kelley, et al., argued before Circuit Judge Julie Rikelman and Senior Circuit Judges Sandra L. Lynch and Jeffrey R. Howard in the United States Court of Appeals for the First Circuit on November 5, 2025. Argued by Del Kolde (on behalf of Kyle Fellers, et al.) and Jonathan Shirley (on behalf of Marcy Kelley, et al.).

    Background of the case, from the Institute for Free Speech case page:

    A silent protest in support of girls’ sports led Bow officials to censor XX wristbands, threaten arrests and ban dissenters from school grounds. Now, three parents and a grandfather are fighting back against the officials who trampled on their First Amendment rights—and the policies those officials weaponized to do it.

    The lawsuit, filed in the U.S. District Court for the District of New Hampshire, alleges that the defendants violated the plaintiffs’ First Amendment rights by forcing them to remove “XX” wristbands, and then banning them from school grounds. The plaintiffs wore the wristbands to silently protest government officials allowing a biological male to play on the opposing girls’ soccer team.

    School officials, along with a police officer, confronted the parents during the game, demanding that they remove the wristbands or leave. The referee also temporarily stopped the game and said that the game would be over if the remaining plaintiff did not remove his wristband. Two of the plaintiffs were later sent no-trespass notices excluding them from future games.

    The plaintiffs ask the court to enjoin the school from enforcing its unconstitutional policy or practice of censoring the display of XX wristbands or displaying signs in the parking lot in support of protecting women’s sports at Bow school sporting events

    Statement of the Issues, from the Plaintiff-Appellants’ Opening Brief:

    1. Does a blanket ban on so-called “exclusionary” speech by adults at school events open to the public discriminate against speech based on its content and viewpoint?
    2. Do public school officials illegally discriminate against speech based on viewpoint by banning adult spectators at school sporting events from wearing XX-wristbands conveying an “exclusionary” message, when those same officials permit adult spectators to display a Pride Flag because the message is “inclusionary?”
    3. Is the First Amendment’s protection of speech by adult spectators in a limited public forum, such as a public-school extracurricular sporting event, subject to the same legal test for the protection of student speech in schools set forth in Tinker v. Des Moines and its progeny?
    4. Can the passive display of an XX-wristband by parents watching a school sporting event in which a trans-identified student is playing “reasonably be understood as directly assaulting those who identify as transgender women?”
    5. Did the district court correctly find that the XX-wristbands’ message would be likely to injure transgender students when the record lacks evidence of such phenomena?
    6. Did the district court err by denying plaintiffs’ motion for a preliminary injunction?

    Resources:

    • Institute for Free Speech case page
    • Plaintiff-Appellants’ Opening Brief
    • Defendant-Appellees’ 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.


    May Burdensome Disclosure Laws Create a De Facto Ban on Political Ads? (State of Washington v. Meta Platforms, Inc.) Oct 28, 2025
    Show notes

    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:

    1. 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”).
    2. 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.
    3. 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 Washington
    • Disclosure law text (RCW 42.17A.345)
    • Disclosure law text (WAC 390-18-050)
    • Supplemental Brief of Petitioner Meta
    • Supplemental Brief of Respondent State of Washington


    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


    Can States Censor Conversations Between Therapists and Clients? (Chiles v. Salazar) Oct 07, 2025
    Show notes

    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


    Can Arizona Expand Donor Disclosure Beyond Election Campaign Speech? (Center for Arizona Policy, Inc., et al. v. Arizona Secretary of State, et al.) Sep 11, 2025
    Show notes

    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]:

    1. Is the Voters’ Right to Know Act facially unconstitutional under the Ariz. Constitution?
    2. 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


    Can Legislative Committees Ban ‘Misgendering’ During Public Comment? (Gays Against Groomers, et al. v. Garcia, et al.) Sep 10, 2025
    Show notes

    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]:

    1. 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?
    2. 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?”
    3. Is legislative immunity a personal defense available to legislators sued in their official capacities for declarative and injunctive relief?
    4. 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?
    5. 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 Page
    • Appellants’ Opening Brief
    • Appellees’ Answer Brief
    • Appellants’ Reply 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


    Can a California City Silence a Critic Through Targeted Campaign Finance Laws? (Moving Oxnard Forward, Inc. v. Lourdes Lopez) Sep 09, 2025
    Show notes

    Episode 34: Moving Oxnard Forward, Inc. v. Lourdes Lopez

    Moving 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 Lopez
    • Institute for Free Speech amicus brief
    • Ninth Circuit Opinion
    • City of Oxnard Measure B


    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


    Can Public Universities Censor Faculty Critics? (Lowery v. Mills) Aug 04, 2025
    Show notes

    Episode 33: Lowery v. Mills

    Lowery 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]:

    1. 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)?
    2. Did Plaintiff state a viable claim for free-speech chilling under Jackson v. Wright, 82 F.4th 362 (5th Cir. 2023) and other cases?
    3. 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?
    4. 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?
    5. 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


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