Two Free Speech/Gender Identity/Sexual Orientation Cert. Petitions that the Court Will Consider Friday

[1.] In L.M. v. Town of Middleborough (briefs at link, if you're interested), the question presented is:

L.M. is a student whose public school promoted the viewpoint that sex and gender are limitless, based on personal identity, and have no biological foundation. The school invited students to voice their support for this view. But L.M. disagreed and responded by wearing a t-shirt to class that said "There are only two genders." After the school censored him, he wore a protest t-shirt that said "There are [censored] genders." Despite no past or present disruption, the school district prohibited both t-shirts.

The district court upheld this censorship based on the rights-of-others prong in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). The First Circuit affirmed based on Tinker's substantial-disruption prong, though it said L.M.'s t-shirts likely failed the rights-of-others prong too, applying a novel test for ideological speech alleged to demean characteristics of personal identity.

The First Circuit's novel legal standard and analysis conflicts with this Court's decisions and those of ten other circuits in a multitude of ways. The question presented is:

Whether school officials may presume substantial disruption or a violation of the rights of others from a student's silent, passive, and untargeted ideological speech simply because that speech relates to matters of personal identity, even when the speech responds to the school's opposing views, actions, or policies.

[2.] In Chiles v. Salazar (briefs at the link), the question presented is:

Kaley Chiles is a licensed counselor who helps people by talking with them. A practicing Christian, Chiles believes that people flourish when they live consistently with God's design, including their biological sex. Many of her clients seek her counsel precisely because they believe that their faith and their relationship with God establishes the foundation upon which to understand their identity and desires. But Colorado bans these consensual conversations based on the viewpoints they express. Its content- and viewpoint-based Counseling Restriction prohibits counseling conversations with minors that might encourage them to change their "sexual orientation or gender identity, including efforts to change behaviors or gender expressions," while allowing conversations that provide "[a]cceptance, support, and understanding for … identity exploration and development, including … [a]ssistance to a person undergoing gender transition." Colo. Rev. Stat. § 12-245-202(3.5).

The Tenth Circuit upheld this ban as a regulation of Chiles's conduct, not speech. In doing so, the court deepened a circuit split between the Eleventh and Third Circuits, which do not treat counseling conversations as conduct, and the Ninth Circuit, which does.

The question presented is:

Whether a law that censors certain conversations between counselors and their clients based on the viewpoints expressed regulates conduct or violates the Free Speech Clause.

Much worth following, I think.

 

Comments

[AmosArch]

>But L.M. disagreed and responded by wearing a t-shirt to class that >said "There are only two genders."

Or more accurately 'there are only two sexes and gender is a madeup nonsense concept coopted from linguistics'.

Don't fall for their word games where they keep the term gender distinct on one hand so they can defend it but on the other hand try to use it to displace the correct concept of sex that has existed since the dawn of time as if they were the same thing.

[Lee Moore]

To be fair, gender has long been a synonym for sex. Merriam-Webster attempts a brief history of its evolution into the current mush, but why would we believe them ? It would be fun to have the full set of dictionary changes from say 1900 to now, to see how it really did develop, when they were still trying to identify actual usage.

By now though, I agree that it makes sense to reserve sex for the physiology and gender for any and all of the psychological identification, presentation or social and behavioral expectation type stuff. Next week's homework would be to split up each of the meanings of gender into coherent lumps and pick a word for each of them. Unless the goal is to muddy the water.

Gender of course still has its grammatical meaning, just as sex has its associated meanings of coitus, and DNA exchange, but these don't cause any confusion as the contexts easily distinguish them.

[Davy C]

My physical copy of Webster's Encyclopedia of Dictionaries, copyright 1992, has gender defined in the main dictionary as "sex, male or female" along with a definition pertaining to linguistics. In the medical dictionary, it's defined as "sexual category, male or female".

[Lee Moore]

Well it's Fahrenheit 451 time for that old relic of oppression then !

So much easier to keep everyone "properly informed" once everything's in the Cloud.

[No One Of Consequence]

What really matters is what dictionaries said at or near the founding. Probably need to consult Samuel Johnson's Dictionary of the English Language (7th Edition).

[shawn_dude]

1992?! You couldn't find one from the 1950s when all the bad people only had bad words to describe them?

[AmosArch]

Gender has traditionally been associated with male female in the grammatical sense. The use as a quantum fluctuating replacement for biological sex/sexual identity has never been anywhere near as prominent as it has been these past handful of years.

[Roger S]

For decades, feminists, academics, and others are argued for a careful distinction between sex and gender. Now many of these sex activists refuse to make the distinction.

[John F. Carr]

The 1901 volume of the Oxford English Dictionary defines gender (noun):

† 1. Kind, sort, class; also, genus as opposed to species. The general gender: the common sort. Obs.
2. Gram. Each of the three (or in some languages two) grammatical 'kinds', corresponding more or less to distinctions of sex ...
b. By some recent philologists applied, in extended sense, to the 'kinds' into which sbs. are discriminated by the laws of certain langs, the grammar of which takes no account of sex.
3. transf. Sex. Now only jocular.
† 4. Product, offspring, generation. Obs. rare.

[Dr. Ed 2]

Middleboro is the town that tried to fine people $20 for swearing, the AG ended that.

[Stupid Government Tricks]

I have a similar protest t-shirt from probably 10-15-20 years ago.

he wore a protest t-shirt that said "There are [censored] genders."

For those who don't know, DVDs are encrypted, and DVD players need a crypto key to play them. Someone published that key. A court ruled it was illegal to publish that key. It's just a number, and in the standard computer formatting, is something like 40 hex characters, 0-9 and a-f. So this t-shirt has the two prior and following hex numbers, with the actual key redacted.

2468013579acebdf
2468013579acebe0
...
2468013579acebe2
2468013579acebe3

Judges sure don't have any sense of humor.

[John F. Carr]

I have the "Got DeCSS?" shirt from EFF. It has a key on the back.

[Dr. Ed 2]

I'd print a shirt with *random* hexidecimals on it, i.e. 2468013579acebe1 *not* the key.

"Your honor, to the best of my knowledge, "2468013579acebe1" is a totally random number that means nothing, and will do nothing..."

[ReaderY]

I think that a state can condition licensing on meeting its standards, whether those are liberal or conservative standards, and condition use of certain words, like “therapy,” traditionally associated with medicine, on having a license. But as long as one avoids using the magic words (or something extremely close to them) and avoids creating an impression one has a license, I think the state can’t prohibit doing an activity consisting only of talk.

It seems to me, therefore, that denying her a livense but letting her practice as an unlicensed counselor would not violate her First Amendment rights, as long as she doesn’t call what she is doing “therapy” or something similar.

I would resssurect the concept of professional speech. I don’t think speech as a licensed professional is either pure speech or pure conduct, and it deserves its own category. The category has a long history. As Justice Holmes said, sometimes a page of experience is worth a thousand pages of logic.

[Josh R]

The law at issue prohibits "any practice or treatment by a licensee, registrant, or certificate holder that attempts or purports to change an individual's sexual orientation or gender identity." I'm guessing Colorado requires a license. So, if she wants to practice, she can't say things that attempt to change a patient's gender identity.

Since the law does not facially prohibit speech, it survives if it is a regulation of conduct that incidentally burdens speech.

[ReaderY]

Consider a law that prohibits any practice or treatment that attempts to change a person’s religious or political identity. Under your theory, why wouldn’t that law also be constitutional as prohibiting conduct, not speech, and only incidentally reaching speech? And why can’t the state require a license to “practice”?

It seems to me that the speech/conduct distinction doesn’t depend on whether we personally think identities of particular kinds are good or bad things to have, or whether we personally think they are malleable or not. Nor does it depend on what we think is and is not the proper role of medicine. I see no clause in the First Amendment that creates a medical exception, so if a subject is deemed medical, it is outside the amendment’s protection and the views of the current medical establishment majority must prevail.

It seems to me that what I proposed - that a state can prohibit speech as a licensed professional, but cannot prohibit the same speech by someone who does not claim to be a licensed professional - goes a considerable distance in your direction, and as far as the First Amendment permit. I don’t think a state can prohibit speech qua speech by labeling it a medical practice simply because it tends to persuade people to do things the state doesn’t want to persuade them to do. There is no medical speech exception to the First Amendment which permits a state to declare speech entirely off limits simply by declaring it medicine.

The crime facilitation speech exception, which I think is the closest analogy, indeed makes a distinction between abstract advocacy and counseling individuals. I think the 1970s case Lesbian and Gay Student Organization v. Virginia Commonwealth University makes the distinction very well. The 4th Circuit held that while the university could not ban the student organization and indeed had to allow it to use university facilities, it could prohibit individual “peer counseling” as distinct from abstract advocacy because “peer counseling” is nothing more than solicitation to commit sodomy. There, there was a law that would be violated by getting people to feel more comfortable with their inclinations.

But there’s nothing illegal about not changing or feeling more comfortable with ones physical sex. There’s no crime being facilitated, so the crime facilitation speech exception just doesn’t apply.

[Josh R]

a state can prohibit speech as a licensed professional, but cannot prohibit the same speech by someone who does not claim to be a licensed professional.

That's what Colorado does in this case. The lay person who tries to convince someone to change their gender identity has not violated the law at issue, although they may have violated a law which prohibits practicing medicine without a license.

There is no medical speech exception to the First Amendment which permits a state to declare speech entirely off limits simply by declaring it medicine.

I agree. The Colorado law does no such thing. It instead prohibits a class of medical practices be they speech or non-speech. Again under NIFLA v. Becerra, the standard is whether the law's impact on speech is merely incidental.

The Court denied cert in a very similar case in 2023 (Tingley v. Ferguson), with Kavanaugh, Thomas and Alito dissenting.

[Lee Moore]

The lay person who tries to convince someone to change their gender identity has not violated the law at issue, although they may have violated a law which prohibits practicing medicine without a license.

So Catch 22. Excellent 🙂

[Josh R]

Let me clarify. A lay person acting as a lay person has nothing to worry about. A lay person acting as a therapist will violate one or the other law, which is appropriate.

[Brett Bellmore]

The problem here is applying the concept of licensing to speech.

[ReaderY]

Is it your position that a state can’t license teachers or authorize a university to grant degrees? That’s all speech too. If you concede a state can do it, then I think your argument collapses.

Although speech therapy is newer, I don’t see why it should be handled any differently.

[Rossami]

Normatively? No, they should not have authority to license teachers. It's unnecessary, counter-productive and inserts government into a domain where consumers (parents) are perfectly able to make their own decisions.

[shawn_dude]

Licensing performs the task of confirming adequate credentials such that consumers have the information they need to make their own decisions. The state could easily divest of its own licensing authority here, as it does with university accreditation, and merely require the prospective teachers have a license from a recognized authority. Either way, the goal is to demonstrate an individuals adequacy in teaching which parents want done before they sit their children down in their classrooms.

[Dr. Ed 2]

Shawn -- ED divests to the accreditators -- states don't!

[Dr. Ed 2]

" a state can’t license teachers "

It can't ordain clergy.

[Davy C]

A state can license teachers - but note that it is not illegal to hold a class (and even get paid for it) without a license.

[Josh R]

They are not licensing speech. They are licensing medical practices that incidentally impact speech.

[ReaderY]

Question on the t-shirt case. Would/should the result be exactly the same if a someone wears a pro-trans t-shirt in a school where for a majority of the students a clear gender binary is so much part of their sense of identity that they find a pro-trans message offensive to their sense of identity and disruptive to the orderly conduct of the school?

Why or why not? If not, what makes it the federal courts’ business to dictate to people what their identity can and can’t consist of?

[ReaderY]

For that matter, could a school where the student body has a strong sense of Southern white identity ban a pro-civil rights message on the same grounds?

What about a school where the student body has a strong patriotic identity and an anti-Vietnam War message or symbol would be offense to their identity and hence disruptive to the school? Would Tinker come out differently if the administration was responding to student conplaints rather than acting on its own?

Should the outcome of the current case depend on whether the administration was acting on its own or responding to student complaints?

[Dr. Ed 2]

"Should the outcome of the current case depend on whether the administration was acting on its own or responding to student complaints?"

Distinction without a difference.

Admin could find a student to complain if desired, while ignore actual student complaints if desired.

[ReaderY]

The question here is whether “disruptive” is an empirical question about the likelihood of a heckler’s veto or based on how badly the administration or judge dislikes the speech. If it’s an imperical question, then the distinction matters.

Of course whether or not speech is empirically disruptive is subject to manipulation. Not only can administrations organize complaints, in the 1950s, they organized riots.

[Dr. Ed 2]

UMass organizes riots today -- I stood up to one...

[Dr. Ed 2]

A better example -- a shirt advertising Pepsi or candy would be highly offensive to a diabetic child. A shirt advertising running shoes would be offensive to a child in a wheelchair. A hat advertising motor oil could offend a child whose parents died in an auto wreck. Etc.

[A Japanese Student]

If this was Japan, both cases would be dismissed pretty quickly. Here, constitutional rights may be restricted to promote "public welfare". Almost every scholar agrees that this includes protecting the constitutional interests of other citizens, such as not being subjected to discrimination. If the judge can find that certain speech promotes discrimination, then restrictions could be justified; in contrast, if the speech is unlikely to promote discrimination, it is not justified. This necessarily involves viewpoint discrimination because discrimination against minorities is generally more pervasive than discrimination against majorities.

This, of course, is not the path the US took. Was that a wise choice? I don't think so. Of course, viewpoint-discriminatory interpretation probably will never get adopted. Here is a more reasonable approach: I do think there is a legitimate reason to adopt differing standards for speech restrictions imposed by politicians, public figures, ordinary citizens (through litigation), police, medical professionals, the board of education, and individual teachers.

[Josh R]

The American system is not predicated on believing speech that promotes discrimination is worthy of protection. Instead, it's predicated on not trusting the government (i.e., the majority) to decide what speech promotes discrimination. For example, we let Nazis march in Jewish neighborhoods (even though the message is unworthy) because if we do, then local officials will be able to stop anti-MAGA messages in Trump country and pro-MAGA messages on the Upper West Side.

[A Japanese Student]

Yes, that's true. My view is that there are many forms of Government actors restricting speech, with differing levels of appropriate scrutiny. Individual teachers asking a student to be respectful is very different from politicians enacting a bill requiring such. (This also relates to a problem once hotly contested in Japan - whether requiring public school teachers to follow curriculums established by bureaucrats violates the teachers' academic freedom.)

Re: the Skokie case - in fact, there's a case filed last year, with pretty similar facts. An association of Kurds (who are asylum seekers) sued a right-wing activist for compensation and injunction against demonstrations alleged to constitute hate speech. This was in Kawaguchi, Saitama, where most Kurds reside. Prior to the litigation, a judge granted a preliminary injunction barring demonstrations near the association's office. (In Japan, cases seeking preliminary relief can be filed separately from those seeking permanent relief.)

[Dr. Ed 2]

The Cook County (Chicago) Democrats weren't worried about the Nazis having a rally in a city park.

Their real fear was that if the Nazis did, the Cook County Republicans might want to as well...

[shawn_dude]

It's unlikely the two groups have any significant difference in their membership rolls.

[nonzenze]

The problem is the circularity of it.

For example, a student may wish to advocate for a constitutional amendment to the definition of discrimination. Does that promote discrimination?

[shawn_dude]

It might. For example, Trump's recent executive order defining gender promotes discrimination. If the hypothetical student's advocacy includes a definition of discrimination that excludes certain outgroups, then yes. If it's just a general exhortation to creating a definition in the abstract, then no.

Having said that, if a t-shirt has a message so controversial it lands the wearer in the hospital, is the school liable? And if so, would it have been reasonable for the school to have censored that message at the school door?

[JoeFromtheBronx]

Broad terms like "public welfare" and "promotes discrimination" are problematically broad.

Op-eds in major newspapers that support traditional views of women's roles can promote discrimination. So can a range of opinions. This doesn't only include blatant hate speech like the marching of Nazis. It covers a whole swath of discussion.

I don't think the path taken by other nations in various respects is horrible. Your discussion, for example, of how Japan regulates campaign speech. But, at some point, this is troubling.

[Dr. Ed 2]

" constitutional rights may be restricted to promote "public welfare".

That's inherently fascist.

[Roger S]

I wonder if Colorado has prosecuted or disciplined any counselors for changing a sexual orientation or gender identity. Some believe that these things do not exist. Others believe that they are innate and immutable. Either way, they will not be changed by counseling. So how could anyone be guilty?

[Dr. Ed 2]

The professional association likely will do it first.
Remember the Jennifer Keeton case? Believing in the 57 genders is a prerequisite for licensure.

[JoeFromtheBronx]

Medical licensing standards will include speech-related content that clashes with some people's version of Christianity.

They are acceptable even if patients are willing to forgo them. The warning labels on medicine are acceptable even if patients "consent" to their pharmacists not including them.

If people want to promote their brand of gender privately, including by private ministerial counseling, that is quite different.

[JoeFromtheBronx]

The t-shirt case raises complicated issues of the lines in free speech. The fact it is a middle school which children between 10-14 is one factor. The concern for LGBTQ students is a valid one. It is not the same thing as censoring conversation in class or in the lunchroom. It is a sort of continual message board that is an attack on some students. OTOH, it is a statement of opinion so it's tricky.

I question if this would be a good case to take as compared to a high school student and/or a message that doesn't erase the existence of classes of students.

[Dr. Ed 2]

This is the same Federal district where the "CoEd Naked" t shirts were upheld 30 years ago:
https://law.justia.com/cases/federal/district-courts/FSupp/824/7/1460511/

[TwelveInchPianist]

"I question if this would be a good case to take as compared to a high school student and/or a message that doesn't erase the existence of classes of students."

Why? Framing a disagreement about some aspects of a class of student's existence as "erasing the existence of classes of students" doesn't magically alter the nature of the 1A issue. We've been agreeing to disagree about the status of the Jews as "God's chosen people" for thousands of years.

It's also question begging.

[ReaderY]

I think that the Court should ressurrect the professional speech category, which has a long history. Professional speech should be regarded as a sui generis category which is something of a mixture of speech and conduct.

I think that the state can restrict speech as a licensed professional. But I do not think the state can prohibit speech absolutely just by calling it medicine. I think the First Amendment guarantees people a right to speak, indeed to talk about the same subjects as a licensed professional, as long as people do not claim to have licenses or to be practicing a licensed profession, and do not use magic profession-specific words like “therapy.”

I think this applies in general to professions where the therapy consists solely of talk, as distinct from things like prescribing otherwise restricted drugs, surgery, etc.

There are boundary cases. For example, in medical marijuana cases, I think if “recommending” confers on the patient a right to use a drug which it is otherwise illegal to use, then “recommending” is indistinguishable from “prescribing.” I would use a crime-facilitation speech framework. It makes no difference if Don Corleone orders a hit or merely recommends it. Recommending to a specific person that the person do an act which is in general illegal is speech. But it is speech that falls under a recognized exception to the First Amendment.

[Brett Bellmore]

I think the Court should resurrect Lochnerism, essentially the idea that your rights don't vanish the moment money starts changing hands.

"Lochnerism' fell prey to a world-wide fad of centralized economic planning in the early to mid 20th century; Retaining your liberties even if you were engaged in economic interactions got in the way of that sort of central planning. No point in planning if people have a right to not follow your plan!

Since then we've learned that centralized planning is highly destructive of both economies and liberties, but the government loved it too much to do more than moderate it, rather than returning to a free market of free people. And we still live with the ghastly precedents set in the process of getting the Constitution out of the way of FDR's obsession with controlling our economic lives.

[Sarcastr0]

You want something that ended up creating a monstrously unfree race to the bottom for the labor market.

You're a utopian. That means you ignore the actual consequences of what you've decided is Best.

It also lets you rationalize all sorts of awful and unlawful means to get you to the ends you don't realize have been tried and were awful.

[TwelveInchPianist]

"You're a utopian. That means you ignore the actual consequences of what you've decided is Best."

No, it sounds like you and he disagree about actual consequences, as people sometimes do.

[Ed Grinberg]

re: Chiles v. Salazar
We've seen this movie before:
https://reason.com/volokh/2023/12/11/counting-to-four-on-lgbt-without-nmg/
Has the Court's membership changed? No. So, we can fully expect the same result. A pity...

[tuphat]

Re: Colorado minor counseling law -- Too lazy to look up, how does parental consent play into this, if at all?

[A Japanese Student]

It is usually the parents (who see homosexuality as an illness) that send their children to people like the plaintiffs. Gay or trans children usually don't seek - and would actively refuse if they can - those counselings.

Colorado, like many blue states, saw this as a form of child abuse, and passed legislations to ban it. When the state of Washington was sued for enacting similar laws, SCOTUS rejected counselors' cert in 6-3 vote, with Justices Thomas, Alito, and Kavanaugh dissenting. Tingley v. Ferguson, 601 US __

[Dr. Ed 2]

Legally, it is the parents who do EVERYTHING involving a minor, except authorize an abortion. A 14-year-old is mature enough for that...

But no -- the first 3/4 of the Christian Bible is also a Jewish holy text and it really frowns on LGBT(etc.) For example, Leviticus 18:22 states "[t]hou shalt not lie with mankind, as with womankind: it is abomination." And a religious minor may well seek counseling on this basis.

[CindyF]

Since the school was inviting students to wear T-shirts supporting "that view" weren't they also inviting students to wear a T-shirt that didn't support that view? It wasn't the student causing a disruption, it was the school that was doing so by asking students to wear a T-shirt that advocated for a position view that is not supported by biological science.

[MollyGodiva]

"Whether a law that censors certain conversations between counselors and their clients based on the viewpoints expressed regulates conduct or violates the Free Speech Clause."

This has already been answered in the cases of abortion providers. Yes the government can censor these conversations. The government can also mandate that doctors/providers engage in speech that the government favors, even if it is not medically accurate.

But of course SCOTUS will hold that anti-gay speech has different rules then pro-choice speech.

[SRG2]

I think the kid should be allowed to wear the T-shirt. If then he gets upset when other kids mock him and call him names - 1A, baby!

[Krenn]

" prohibits counseling conversations with minors that might encourage them to change their "sexual orientation or gender identity, including efforts to change behaviors or gender expressions,""

I need to do a LOT of reading about this... but my first reaction is is...

Did Colorado technically just claim that the State of Colorado knows what someone's sexual orientation or gender identity is better than they themselves do?

Imagine this scenario: A certain teenager is suffering from a strange form of semi-involuntary behavior, where he keeps flirting with / hitting on other boys, even though he doesn't 'want' to. It's arguably some form of aphasia or self-harm or something.

The male teenager in question wants treatment to help him stop. his parents want him to get treatment to help him stop. The therapist wants to provide treatment to help him stop. All the other boys at the school, if you took a poll of them, would generally be in favor of getting this kid to stop.

However, technically, this is an effort to "change behavior or gender expression", and from a certain point of view, you could argue that this is treatment to either make the boy stop 'being gay' or stop 'pretending to be a girl'.

Did Colorado technically just claim that if the state of Colorado THINKS that this teenager 'is gay' or 'is transgender' or 'is queer' or whatever, That it's illegal to provide him therapy which will assist him in stopping that behavior, if doing so would somehow cause the State of Colorado to STOP calling him "gay/transgender/queer" ? Even if everyone EXCEPT the State of Colorado is actually in favor of this treatment?