To Disrupt or to Invade: Two New First Amendment Cases – Part 2 (T-shirts)

by Chris Gilbert, Thompson & Horton LLP

In a follow up to my recent post about book removals (see Butts, Farts and T-Shirts: Two New First Amendment Cases – Part 1 (books)), today we are discussing L.M. v. Town of Middleborough, Mass., --- F.4th ---- (1st Cir. 2024), a new case from the First Circuit (Massachusetts) involving a challenge to a t-shirt removal.  The plaintiff, a middle school student, wore a t-shirt to school that read “There Are Only Two Genders.”  He was told he could not wear the shirt under a provision of the dress code that prohibited clothing that “state[d], impl[ied] or depict[ed] speech or imagery that targets groups based on race, ethnicity, gender, sexual orientation, gender identity, religious affiliation, or any other classification.”  He then wore the same shirt with the words “Only Two” covered by a piece…

Butts, Farts and T-Shirts: Two New First Amendment Cases – Part 1 (books)

by Chris Gilbert, Thompson & Horton LLP

In the last ten days, two courts of appeals have issued extremely interesting First Amendment cases involving age-old situations –removing books from a library and banning t-shirts in public schools –that, for whatever reasons, haven’t been addressed by the circuit courts in a while.  I’ll talk about the book removal case in Part 1, while Part 2 (later this week!) will talk about t-shirts.

In Little v. Llano County, --- F.4th ---- (5th Cir. 2024), the Fifth Circuit ruled that a public county library violated the First Amendment by removing seventeen (17) specific books, which addressed themes of sexuality and homosexuality; gender identity and dysphoria; and racism – and then a group of seven books that the parties and judges all referred to as “butt and fart” books, as typified by Larry the Farting Leprechaun.


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…

Menorahs One, Sacred Sheep Zero: The Eleventh Circuit rules that a ban on religious advertising in public transit is unconstitutional

by Chris Gilbert, Thompson & Horton LLP

In Young Israel of Tampa, Inc. v. Hillsborough Area Regional Transit Authority, 89 F.4th 1337 (11th Cir. 2024), the Eleventh Circuit was asked to consider whether a ban on advertisements that “primarily promote a religious faith or religious organization” in mass transit advertising violates the First Amendment.  An Orthodox Jewish synagogue wished to post an advertisement featuring both a menorah and what looks like a dancing dreidel in the Tampa, Florida metro system for a “Chanukah on Ice” program, but the transit authority rejected it under its prohibition on religious advertisements.  Both the trial court and the court of appeals found that the decision violated the First Amendment, although for slightly different reasons.

So why did I find this case interesting?  Well, partially because in 2018, the D.C. Circuit was faced with the exact same case,…

Litigation Update: READER Act on hold…..

by Chris Gilbert, Thompson & Horton LLP

Litigation Update:  this week a federal judge in Austin has indicated to the parties in Book People, Inc. v. Wong (Western District of Texas) that he intends to enjoin application of the READER Act.  Passed by the recent Texas Legislature as House Bill 900, the READER Act places affirmative duties on any vendor that sells reading materials to public schools to "rate" books as “sexually explicit” or “sexually relevant.”  Schools may not purchase "sexually explicit" materials (which are defined as materials depicting or describing “sexual conduct” that is “patently offensive”), and may not check out "sexually relevant" materials to students without parent permission.  Vendors must “recall” previously sold “sexually explicit” materials.  A school district cannot buy from vendors who have not issued ratings for “sexually explicit” material.  Schools must review "sexually relevant" materials every two years, and publish a report of “sexually relevant”…