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.


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,…