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”…

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…