Free Speech Arguments

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Can States Ban Ballot Speech by Lawful Permanent Residents? (OPAWL – Building AAPI Feminist Leadership v. Dave Yost) Jul 23, 2025

Show notes

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….

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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

Free Speech Arguments - Can Maine’s State Legislature Deny Voting Rights to a Legislator for a Social Media Post? (Libby v. Fecteau) Jun 05, 2025

Show notes

Episode 31: Libby v. Fecteau

Libby, 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].”

Can Arizona Compel Broad Donor Disclosure for Ordinary Speech? (Americans for Prosperity, et al. v. Meyer, et al.) May 15, 2025

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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.

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Can States Prohibit Pro-Bono Litigation Services for Candidates? (Institute for Free Speech v. J.R. Johnson, et al.) Apr 28, 2025

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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.

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Can the White House Ban Outlets from the Press Pool? (Associated Press v. Taylor Budowich) Apr 18, 2025

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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.

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Can States Ban the Teaching of Some Controversial Concepts? (Local 8027, AFT-New Hampshire, AFL-CIO v. Edelblut) Apr 08, 2025

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Episode 27: Local 8027, AFT-New Hampshire, AFL-CIO v. Edelblut

Local 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. Edelblut
New Hampshire “Right to Freedom from Discrimination in Public Workplaces and Education” law
Brief for Defendants—Appellants
Brief for Plaintiffs—Appellees
Reply Brief for Defendants—Appellants

Can Public Schools Compel Preferred Pronoun Usage? (Parents Defending Education v. Olentangy Local School District, et al.) Mar 19, 2025

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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.

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Can the SEC Permanently Silence Critics? (Powell, et al. v. SEC) Feb 13, 2025

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Episode 25: Powell, et al. v. United States Securities and Exchange Commission

Powell, 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).

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Can Public School Teachers Challenge Mandatory Equity Training as a First Amendment Violation? (Henderson v. Springfield R-12 School District) Jan 23, 2025

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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.

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Can Texas Force Adults to Verify Their Age Before Visiting Adult Websites? (Free Speech Coalition, Inc. v. Paxton) Jan 15, 2025

Show notes

Episode 23: Free Speech Coalition, Inc. v. Paxton

Free Speech Coalition, Inc. v. Paxton, argued before the Supreme Court of the United States on January 15, 2025. Argued by Derek L. Shaffer (on behalf of Free Speech Coalition, et al.), Brian H. Fletcher, Deputy Solicitor General of the United States (on behalf of the United States as amicus curiae), and Aaron Nielson, Solicitor General of Texas (on behalf of Ken Paxton).

Background on the case, excerpted from the introduction of the Brief for Petitioners:

Texas House Bill (H.B.) 1181 imposes requirements on commercial websites “more than one-third of which” are “sexual material harmful to minors”—a term that includes all sexually suggestive content, as might be found in romance novels or R-rated movies. The law requires a covered website to verify the age of every user, typically via government-issued identification. Entities conducting such verification may not “retain” users’ “identifying information,” but H.B. 1181 does not prohibit transfer of that information or impose any other protection against disclosure. And while Texas insists that forcing users to endure chilling online privacy and security risks is necessary to protect minors from harmful sexual content, H.B. 1181 exempts the search engines and social-media platforms that are principal gateways for minors’ access to that very content. Confirming Texas’s real aims, H.B. 1181 also requires covered websites to post stigmatizing, unscientific “[w]arnings” that condemn their content as harmful to health.

The district court preliminarily enjoined H.B. 1181, finding that the law is subject to strict scrutiny and likely to fail it under this Court’s governing precedent. In particular, the court explained that H.B. 1181’s age verification requirement is materially identical to the Child Online Protection Act (COPA), 47 U.S.C. § 231, which this Court in Ashcroft held was subject to strict scrutiny and likely unconstitutional. The Fifth Circuit agreed that H.B. 1181 is materially identical to COPA, but a divided panel held that it was not bound by Ashcroft because that decision contains what the majority termed “startling omissions.” The majority concluded that the proper level of scrutiny is instead rational-basis review, as applied in Ginsberg. To justify its departure from Ashcroft, the majority reasoned that this Court there applied strict scrutiny to COPA only because Attorney General Ashcroft, represented by Solicitor General Olson, erroneously accepted strict scrutiny rather than urging mere rational-basis review in defense of the statute.

Question Presented:

This Court has repeatedly held that States may rationally restrict minors’ access to sexual materials, but such restrictions must withstand strict scrutiny if they burden adults’ access to constitutionally protected speech. See, e.g., Ashcroft v. ACLU, 542 U.S. 656, 663 (2004). In the decision below, the Fifth Circuit applied rational-basis review—rather than strict scrutiny—to vacate a preliminary injunction of a provision of a Texas law that significantly burdens adults’ access to protected speech, because the law’s stated purpose is to protect minors.

The question presented is: Whether the court of appeals erred as a matter of law in applying rational-basis review to a law burdening adults’ access to protected speech, instead of strict scrutiny as this Court and other circuits have consistently done.

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