Because We Say They Don’t: Do the Title IX Regulations Violate the First Amendment?

by Chris Gilbert, Thompson & Horton LLP

Because it’s Title IX Week(s) here at Thompson & Horton, I decided to look and see how the new Title IX regulations address the First Amendment.  One of the Trump Department of Education’s (“DOE”) oft-stated concerns about pre-2020 Title IX jurisprudence was that the First Amendment rights of speakers to discuss Title IX-adjacent issues (or protest Title IX itself) were being violated, often by chilling protest speech on university campuses.  There was therefore concern on the Right that the Biden DOE Title IX regulations would weaken the First Amendment rights of student parent and even teacher speakers.  The Biden DOE assured commentators that they were taking these rights seriously.

And we now know that the new regulations do not violate the First Amendment – in part because they tell us they don’t, repeatedly, in the…

Counterman v. Colorado: Changing how the Courts View the “True Threat” Doctrine

Last week the Supreme Court issued its decision in Counterman v. Colorado, changing how the courts will interpret the “true threat” doctrine moving forward.  Counterman involved a Colorado man who was cyberstalking a local singer, and sent her hundreds of Facebook messages over a two year period.  Some were weird or borderline creepy (he once asked her “I am going to the store would you like anything?”, even though they did not really know each other), but others threatened violence (“You're not being good for human relations. Die.”).  The singer tried to block Counterman repeatedly, but he would just create new Facebook accounts and send new messages.  The messages had a significant impact on the singer’s mental health.

Counterman was eventually convicted of violating what amounted to a state anti-stalking law.  Counterman argued that he could not be prosecuted because his Facebook messages did not constitute “true threats,” and therefore…