Amicus Curiae Brief — L. M., a Minor, By and Through His Father and Stepmother and Natural Guardians, Christopher and Susan Morrison, Petitioner v. Town of Middleborough, Massachusetts, et al.

Supreme Court briefNov 12, 2024

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Text

No. 24-410

In the

Supreme Court of the United States

♦

L.M. a minor by and through his father and

stepmother and natural guardians, Christopher and

Susan Morrison,

Petitioner,

TOWN OF MIDDLEBOROUGH, MASSACHUSETTS ET AL.,

Respondents.

♦

On Petition for Writ of Certiorari to the United States

Court of Appeals for the First Circuit

♦

AMICUS CURIAE BRIEF OF J.R., A MINOR, BY

AND THROUGH HIS MOTHER AND GENERAL

GUARDIAN, EDEN HOPE RODRIGUEZ, AND

CLAREMONT INSTITUTE’S CENTER FOR

CONSTITUTIONAL JURISPRUDENCE, IN

SUPPORT OF PETITION FOR A WRIT OF

CERTIORARI

William E. Trachman

Counsel of Record

James L. Kerwin

MOUNTAIN STATES

LEGAL FOUNDATION

2596 S Lewis Way

Lakewood, CO 80227

(303) 292-2021

wtrachman@mslegal.org

John C. Eastman

Anthony T, Caso

CONSTITUTIONAL COUNSEL

GROUP

1628 N. Main St,

#289

Salinas, CA 93906

(909) 257-3869

jeastman@ccg1176.com

November 12, 2024

Attorneys for Amici Curiae

TABLE OF CONTENTS

PAGE

TABLE OF CONTENTS .....................................

TABLE OF AUTHORITIES ...............................

IDENTITIES AND INTERESTS OF AMICI

CURIAE ...............................................................

SUMMARY OF ARGUMENT.............................

REASONS FOR GRANTING THE WRIT .........

The Court Should Grant Review to Hold

that Student Speech that Contributes to

the Marketplace of Ideas Can Never Be

Suppressed Based Solely on the School

Officials’ Opposition and Predicted

Psychological Strain Felt by Listeners ....

The Court Should Grant Review to

Protect Students’ Rights to Share Views

on Controversial Topics............................

The Court Should Grant Review to Rule

that Speech Reflecting Foundational

Legal Principles That Have Been

Repeatedly Reaffirmed by the Supreme

Court Cannot be Suppressed as

Disruptive. ................................................

Conclusion ...........................................................

II.

III.

TABLE OF AUTHORITIES

CASES

PAGE(S)

303 Creative LLC v. Elenis,

143 S. Ct. 2298 (2023)....................................

Adams by & through Kasper v. Sch. Bd. of St.

Johns Cnty.,

57 F.4th (11th Cir. 2022) ................................ 24, 26

Ballard v. United States,

329 U.S. 187 (1946)........................................

Bethel Sch. Dist. No. 403 v. Fraser,

478 U.S. 675 (1985)........................................

Blackwell v. Issaquena Co. Bd. of Ed.,

363 F.2d 749 (1966) .......................................

Bostock v. Clayton County,

590 U.S. 644 (2020)........................................

Dep’t of Educ. v. Louisiana,

603 U.S. 866, 144 S. Ct. 2509 (2024).............

Dobbs v. Jackson Women’s Health Org.,

142 S. Ct. 2228 (2022)....................................

Frontiero v. Richardson,

411 U.S. 677 (1973)........................................

Gitlow v. New York,

268 U.S. 652 (1925)........................................

Harper v. Poway Unified Sch. Dist.,

445 F.3d 1166 (9th Cir. 2006) .......................

Mahanoy Area Sch. Dist. v. B. L. by & through

Levy,

594 U.S. 180 (2021)................................... 7, 13, 20

Matal v. Tam,

582 U.S. 218 (2017)........................................

Meriwether v. Hartop,

992 F.3d 492 (6th Cir. 2021) .........................

Murthy v. Missouri,

144 S. Ct. 1972 (2024)....................................

National Institute of Family Life Advocates v.

Becerra,

585 U.S. 755 (2018)........................................

National Rifle Ass’n v. Vullo,

602 U.S. 175 (2024)........................................

Neese v. Becerra,

2022 WL 1265925 (N.D. Tex. 2022) ..............

Newport News Shipbuilding and Dry Dock Co.

v. EEOC,

462 U.S. 669 (1983)........................................

Parents Defending Ed. v. Linn Mar Comm.

Sch. Dist.,

2023 WL 6330394 (8th Cir., 2023) ................

iii

Police Dep’t of City of Chicago v. Mosley,

408 U.S. 92 (1972).....................................

Rodriguez v. Maricopa Cnty. Cmty. Coll. Dist.,

605 F.3d 703 (9th Cir. 2010) .........................

Saxe v. State Coll. Area Sch. Dist.,

240 F.3d 200 (3rd Cir. 2001) ......................... 7, 10

Street v. New York,

394 U.S. 576 (1969)........................................

Thornhill v. Alabama,

310 U.S. 88 (1940)..........................................

Tinker v. Des Moines Indep. Cmty. Sch. Dist.,

393 U.S. 503 (1969)................................... 4, 5, 6, 9

Tuan Anh Nguyen v. I.N.S.,

533 U.S. 53 (2001)..........................................

United States v. Virginia,

518 U.S. 515 (1996)........................................

West Virginia Board of Education v. Barnette,

319 U.S. 624 (1943)........................................ 2, 14

Constitutional Provisions and Statutes

U.S. Const. Amend. I ..........................................

20 U.S.C. § 1681(a)(2) .........................................

20 U.S.C. § 1681(a)(8) .........................................

Regulations

34 C.F.R. pt. 106 .................................................

34 C.F.R. § 106.33 ...............................................

34 C.F.R. § 106.34(a)(3) ......................................

34 C.F.R. § 106.37(c)(1) .......................................

Nondiscrimination on the Basis of Sex in

Education Programs or Activities Receiving

Federal Financial Assistance,

85 Fed. Reg. 30,026 (May 19, 2020) ..............

Other Authorities

AN HISTORICAL MEMOIR OF THE PENNSYLVANIA

SOCIETY FOR PROMOTING THE ABOLITION OF

SLAVERY (Merrihew and Thompson 1848) ....

Benjamin Franklin, On Freedom of Speech

and the Press, Pennsylvania Gazette,

November 17, 1737 (reprinted in 2 THE

LIFE AND WRITINGS OF BENJAMIN FRANKLIN

(McCarty & Davis 1840 at 431).....................

Common Sense,

CITIZEN PAINE (Madison House 2002)...........

Declaration of Rights and Other Amendments,

North Carolina Ratifying Convention (Aug.

1, 1788) ...........................................................

James Madison, On Property, Mar. 29, 1792

(Papers 14:266-68) ........................................

New York Ratification of Constitution, 26 July

1788, Elliot 1:327—31 ...................................

The Firstness of the First Amendment,

65 Yale L.J. 464 (1956) .................................. 15, 20

Thomas Cooley, THE GENERAL PRINCIPLES OF

CONSTITUTIONAL LAW, (Little, Brown, & Co.

1880) ...............................................................

Transgender women must sign up for military

draft under Biden admin, trans men get a

pass, Fox News, Oct. 11, 2022 .......................

U.S. Dep’t of Educ., Off. for Civil Rts., Annual

Report to the Secretary, the President, and

the Congress, at 27 (2021) .............................

IDENTITIES AND INTERESTS

OF AMICI CURIAE 1

J.R., is a teenager who’s willing to stand up for

what he believes. But in 2023, when J.R. was only 12

years old, officials at J.R.’s school prohibited J.R. from

displaying a Gadsden Flag on his backpack. They also

stopped him from displaying Velcro patches on his

backpack in support of the Second Amendment of the

United States Constitution.

School

officials

took

this

action

notwithstanding the fact that J.R.’s display of these

patches had caused no disruption at the school for

years. J.R. is now pursuing litigation in the United

States District Court for the District of Colorado,

represented by Mountain States Legal Foundation,

and supported by the Center for Constitutional

Jurisprudence, through his mother and general

guardian, to protect his First Amendment right to

express himself, in a manner that does not cause

disruption, at school.

The Center for Constitutional Jurisprudence is

the public interest law arm of the Claremont

Institute, whose stated mission is to restore the

principles of the American founding to their rightful

1 All parties have been notified of amici’s intent to file this brief.

In accordance with Rule 37.6, counsel affirms that no counsel for

any party authored this brief in whole or in part and that no

person or entity other than amicus made a monetary

contribution to fund the preparation and submission of this brief.

and preeminent authority in our national life,

including the natural right of freedom of speech. The

Center has previously appeared before this Court as

counsel of record or amicus curiae in several cases

addressing these issues, including Murthy v.

Missouri, 144 S. Ct. 1972 (2024); National Rifle Ass’n

v. Vullo, 602 U.S. 175 (2024); and National Institute

of Family Life Advocates v. Becerra, 585 U.S. 755

(2018), to name a few.

This case is of interest to amici because of the

school’s blatant censorship of student speech that in

no way disrupts the school’s educational mission.

SUMMARY OF ARGUMENT

In West Virginia Board of Education v.

Barnette, 319 U.S. 624, 642 (1943), this Court

described—in the education context no less—as a

“fixed star in our constitutional constellation” the

precept that “no official, high or petty, can prescribe

what shall be orthodox … in … matters of opinion.”

Eighty-one years later, some school officials

still haven’t gotten the message. Indeed, many have

decided that there are opinions, or even statements of

objective biological fact, that simply cannot be

uttered. For instance, LM wore a shirt to his public

middle school stating the scientific and legal truism

that “there are only two genders.” This message could

reasonably be interpreted as a critique—albeit a mild

one—of fashionable elite ideologies concerning sex

and gender. It is not, however, appropriate to

suppress a student’s speech because the listeners of

that speech are likely to overreact, act unreasonably,

or disrupt the school environment. This Court should

grant the writ of certiorari to reinforce (1) that

Tinker’s disruption standard is not a right to a

“heckler’s veto”; and (2) the Framers did not envision

an exception to the First Amendment for speech that

was loathed by one political faction.

Officials may believe that the message that

“there are only two genders” is controversial.

However, it is a statement of fact, as this Court has

reaffirmed time and again, including, most recently,

in Bostock v. Clayton County, 590 U.S. 644 (2020), as

a matter of foundational legal principle: there are in

fact, only two genders. Applying Tinker and its

progeny to allow government curtailment of speech

that expresses a legally accurate statement,

particularly one that a student might just as likely

hear in a government or biology class as on a t-shirt is

a clear danger to the First Amendment right of

students. LM’s expression thus cannot be limited,

consistent with the First Amendment.

REASONS FOR GRANTING THE WRIT

The Court Should Grant Review to Hold

that Student Speech that Contributes to

the Marketplace of Ideas Can Never Be

Suppressed Based Solely on the School

Officials’ Opposition and Predicted

Psychological Strain Felt by Listeners

Public schools ought to inculcate the culture

and practice of free speech among rising generations

of Americans. “The Nation’s future depends upon

leaders trained through wide exposure to that robust

exchange of ideas which discovers truth out of a

multitude of tongues, (rather) than through any kind

of authoritative selection.” Tinker v. Des Moines

Indep. Cmty. Sch. Dist., 393 U.S. 503, 512 (1969)

(cleaned up). This is why students maintain free

speech rights past “the schoolhouse gate,” id. at 506,

and why, once inside, they are not to be treated as

“closed-circuit recipients of only that which the State

chooses to communicate,” id. at 511. Consistent with

these principles, this Court has repeatedly reaffirmed

that school officials have a duty to foster open debate,

including encouraging, if not acceptance, then at least

tolerance, of unpopular opinions.

In its seminal Tinker opinion, the Court

addressed whether a high school could regulate

symbolic speech protesting the Vietnam War—one of

the most weighty public issues of the day. 393 U.S. at

510 n.4 (noting that our involvement in the Vietnam

War had been “the subject of a major controversy for

some time [and that the] debate . . . had become

vehement in many localities.”). Several students

planned, as part of a broader movement, to wear black

armbands in class to bear “silent . . . witness” against

the war, but not to otherwise engage in any speech or

conduct. Id. at 514. The Court held that the school’s

enforcement of a hastily adopted policy prohibiting

armbands violated the students’ First Amendment

rights. Id. at 508-14.

“The classroom is peculiarly the marketplace

of ideas.” Id. at 512 (cleaned up). The Tinker Court

found that school officials could not conclude that

silently wearing two-inch black armbands would

materially disrupt school operations. Id. at 509-10.

Accordingly, the school’s attempt to suppress its

students’ speech was unconstitutional. Here, LM’s

expression similarly concerned important social

issues at the core of First Amendment values, and

could not be prohibited, absent conduct that

“materially disrupts classwork or involves substantial

disorder or invasion of the rights of others.” Id. at 513.

Tinker did not provide a comprehensive

analysis of what it meant by the suggestion that

student speech that “invades” or “collides with the

rights of others” could be regulated by school

authorities. Nevertheless, Tinker’s holding is

irreconcilable with the proposition that school

authorities are at liberty to regulate speech on

matters of public concern merely “to avoid . . .

discomfort and unpleasantness.” Id. at 509. In

passing, the Tinker court adopted language about the

“collision with the rights of others” directly from the

Fifth Circuit’s opinion in Blackwell v. Issaquena Co.

Bd. of Ed., 363 F.2d 749 (1966). See Tinker, 393 U.S.

at 513.

In Blackwell, however, there was no question

that the speech at issue interfered with the school’s

ability to educate students, and the students’ ability

to learn. 363 F.2d at 751-54. Specifically, as part of a

multi-day series of student protests, students stayed

out of class and engaged in loud disturbances in school

hallways, physically accosted other students who did

not wish to be part of the protest, and even forced

them to wear supportive buttons under threat of

assault. The plaintiff students aggressively insulted

their principal by calling him an “Uncle Tom,” “threw

[protest] buttons into the building through the

windows,” and generally subjected non-participating

students to “harassment” that made it impossible for

them to learn. Id. at 751-53.

Against this background, the Fifth Circuit had

little trouble finding that the protests involved “an

unusual degree of commotion, boisterous conduct,

[and] a collision with the rights of others.” Id. at 754.

The limited categories of “rights of others” to which

the Fifth Circuit referred (and which the Supreme

Court later implicitly adopted in Tinker) then, were

(1) the right not to be forced to join a protest, (2) the

right of bodily integrity (i.e., a right against being

forced to wear an unwanted protest button), and (3) a

right to be free from a multi-day spree of chaos and

disorder rendering learning all but impossible.

The First Amendment withdraws from the

State any power to “shield” others from mere ideas

that can potentially cause distress in sensitive

listeners. See, e.g., Matal v. Tam, 582 U.S. 218, 223

(2017) (citing the “bedrock First Amendment principle

[that s]peech may not be banned on the ground that it

expresses ideas that offend”); Street v. New York, 394

U.S. 576, 592 (1969) (“[T]he public expression of ideas

may not be prohibited merely because the ideas are

themselves offensive to some of their hearers.”);

accord Mahanoy Area Sch. Dist. v. B. L. by & through

Levy, 594 U.S. 180, 192 (2021) (declining to find

substantial disruption or “harm to the rights of

others” where student speech caused “some members

of the cheerleading team [to be] ‘upset’”); Saxe v. State

Coll. Area Sch. Dist., 240 F.3d 200, 215 (3rd Cir. 2001)

(Alito, J.) (“The Supreme Court has held time and

again, both within and outside of the school context,

that the mere fact that someone might take offense at

the content of speech is not sufficient justification for

prohibiting it.”). This is all the more true where the

alleged emotional distress is felt not by “a particular

member of the school community, but [is] based on [a

generalized feeling of] negativity put out there . . . in

the school.” Mahanoy, 141 S. Ct. at 2048.

In contrast, where student speech does not

involve the expression of ideas on matters of public

concern, but rather consists merely of juvenile

outbursts, bullying, harassment, or otherwise low- or

zero-value expression, the “personal sensibilities of . .

. [the] audience[],” can, in narrow circumstances, be

considered by a school official in suppressing speech.

Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 681

(1985).

Fraser,

for

example,

this

Court

countenanced regulation of student speech “unrelated

to any political viewpoint,” id. at 685, that was

characterized by “pervasive sexual innuendo” and

delivered to a school assembly of 600 children, id. at

677-83, “many of whom were only 14 years old and on

the threshold of awareness of human sexuality,” id. at

683. Given that the lewd content of the “confused

boy[’s]” speech could create “offens[e] to both teachers

and students—indeed to any mature person [and] was

acutely insulting to teenage girl students,” id., the

Court held that it could be suppressed by school

officials, id. at 680.

On the other hand, where a student is engaging

in speech on important public topics, the fact that

audience members may take offense or feel personally

attacked carries little, if any, weight in the First

Amendment analysis. Indeed, in Tinker itself, there

was evidence that wearing black armbands in

opposition to the Vietnam War would engender

traumatic feelings in classmates whose friend had

been killed in the war. 393 U.S. at 509 n.3. Yet against

the background of high-value speech on a topic of

utmost public importance, the Supreme Court did not

suggest in any way that the undeniable emotional

impacts on students who might naturally feel

offended on behalf of their fallen classmate amounted

to an invasion of their rights. Id. at 509; see also

Mahanoy, 141 S. Ct. at 2055 (Alito, J. concurring) (“At

the other end of the spectrum, there is a category of

speech that is almost always beyond the regulatory

authority of a public school. This is student speech

that . . . addresses matters of public concern, including

sensitive subjects like politics, religion, and social

relations. Speech on such matters lies at the heart of

the First Amendment’s protection.”) (citations

omitted); accord 303 Creative LLC v. Elenis, 143 S. Ct.

2298, 2312 (2023) (“[T]he First Amendment protects

an individual’s right to speak his mind regardless of

whether the government considers his speech sensible

and well intentioned or deeply ‘misguided’ and likely

to cause ‘anguish’ or ‘incalculable grief.’”) (internal

citations omitted); Rodriguez v. Maricopa Cnty. Cmty.

Coll. Dist., 605 F.3d 703, 708 (9th Cir. 2010) (“Without

the right to stand against society’s most strongly-held

convictions, the marketplace of ideas would decline

into a boutique of the banal, as the urge to censor is

greatest where debate is most disquieting and

orthodoxy most entrenched.”).

All of this makes particularly good sense in the

public-school setting. Ideally, public schools have the

primary mission of educating students. See, e.g., Saxe,

240 F.3d at 217. This includes instruction in such

things as literature, history, and science, but also,

crucially, includes the very important role of

inculcating a culture of free speech and tolerance for

the views of others—even views that can cause hurt

and dismay in listeners. See, e.g., Mahanoy, 141 S. Ct.

at 2046 (because “America’s public schools are the

nurseries of democracy. . . . schools have a strong

interest in ensuring that future generations

understand the workings in practice of the wellknown aphorism, ‘I disapprove of what you say, but I

will defend to the death your right to say it.’”); id at

2049 (Alito, J. concurring) (“[P]ublic schools have the

duty to teach students that freedom of speech,

including unpopular speech, is essential to our form of

self-government.”).

Student conduct that genuinely interferes with

the functions of a public school may be addressed by

school administrators. If, for instance, speakers are

marching in and out of classrooms, accosting students

who do not wish to join in, chanting, and drowning out

instructors’ voices, hardly any learning at all can take

place. This is the Tinker “substantial disruption”

prong.

This is different, however, from a “hecklers’

veto” theorized by school officials. Allowing censorship

based on the hypothetical disruption that might be

caused by others is antithetical to the First

Amendment. Schools have no substantial interest in

allowing suppression of ideas because some group of

students is ready to respond in a disruptive, even

violent way to speech that they do not like.

Absent substantial disruption caused by the

student speaker, however, if a student listener

experiences psychological distress when exposed to

speech on a matter of public concern, the mission of

the educational institution includes not only a duty to

foster a necessary respect for the right of others to

speak, Mahanoy, 141 S. Ct. at 2046, but also to help

that student develop resilience and a sense of selfworth that comes with responding to and attempting

to refute the disagreeable speech. After all,

suppressing objectionable ideas only forces them to be

“whispered behind backs or scribbled on bathroom

walls,” while “confronting . . . such views in a public

forum may well empower [allegedly distressed]

students, contributing to their sense of self-esteem.”

Harper v. Poway Unified Sch. Dist., 445 F.3d 1166,

1200 (9th Cir. 2006) (Kozinski, J. dissenting), vacated

as moot by 549 U.S. 1262 (2007). Helping create the

next generation of citizens who have a proper respect

for free speech may sometimes require that school

administrators address the overreactions of students

who feel “threatened,” “harmed,” or “offended” by

others’ opinions (not to mention statements of

objective biological fact); and those students in turn

can benefit from standing up to oppose—through

reasoned debate—the speech with which they

disagree.

Regardless of whether one agrees or disagrees

with LM’s expression, it is beyond argument that it

represents the sharing of a social and political point of

view and, therefore, a contribution to the marketplace

of ideas. Because the speech at issue goes to core First

Amendment concerns, this Court should hold that it

is categorically exempt from regulation based solely

on the alleged psychological impact on listeners. See

Parents Defending Ed. v. Linn Mar Comm. Sch. Dist.,

No. 22-2927, 2023 WL 6330394, at *4 (8th Cir., Sept.

29, 2023) (student speech stating the belief that

“biological sex is immutable,” is not “bullying” or

“harassment” amenable to proscription under the

Tinker “rights of others” standard, but rather

represents an “open exchange of ideas” protected by

the First Amendment despite its potential to offend);

cf. Meriwether v. Hartop, 992 F.3d 492, 510 (6th Cir.

2021) (enforcement of university gender identity

speech policies would amount to an unconstitutional

attempt “to discipline professors, students, and staff

any time their speech might cause offense.”).

II.

The Court Should Grant Review to

Protect Students’ Rights to Share Views

on Controversial Topics.

There is little to no evidence that, at the time

of the Founding, the First Amendment was meant to

enshrine a broad right to a heckler’s veto for students

in public schools. The Framers, no strangers to

controversial speech themselves, were unlikely to

have even contemplated such an exception. See

Mahanoy, 594 U.S. at 202 n. 14 (“At the time of the

adoption of the First Amendment, public education

was virtually unknown, and the Amendment did not

apply to the States.”).

Because Tinker is baked into this Court’s

precedents, and the manner in which the lower court

applied Tinker grants a heckler’s veto to disruptive

students and administrators, the Court ought to grant

a writ of certiorari in this matter to emphasize that

Tinker is not a “get-out-of-jail-free” card for schools

that want to suppress traditional or conservative

ideas, much less biological facts that might make

some uncomfortable.

Rather, the Court should ground its analysis in

the broad principles enshrined in the First

Amendment. The free speech clause preserves the

natural right to liberty of conscience. That generally

includes the right to hold one’s own opinions, and to

share those opinions with others to sway them to your

point of view. James Madison, On Property, Mar. 29,

1792 (Papers 14:266-68) (“A man has a property in his

opinions and the free communication of them.”).

Without this right, the people lose their status as

sovereign and officials in power “can prescribe what

shall be orthodox in politics, nationalism, religion, or

other matters of opinion.” Barnette, 319 U.S. at 642.

The founding generation rejected the idea that

government officials should wield such power. They

instead recognized that freedom to communicate

opinions is a fundamental pillar of a free government

that, when “taken away, the constitution of a free

society is dissolved.” Benjamin Franklin, On Freedom

of Speech and the Press, Pennsylvania Gazette,

November 17, 1737 (reprinted in 2 THE LIFE AND

WRITINGS OF BENJAMIN FRANKLIN (McCarty & Davis

1840 at 431).

Thomas Paine argued that “thinking,

speaking, forming and giving opinions” are among the

natural rights held by people. Edmond Cahn, The

Firstness of the First Amendment, 65 Yale L.J. 464,

472 (1956). Congress and the states agreed. The First

Amendment does not “grant” freedom of speech. The

text speaks about a right that already exists and

prohibits Congress from enacting laws that might

abridge that freedom. U.S. Const. Amend. I. (That

prohibition extends to state and local governments.

Gitlow v. New York, 268 U.S. 652, 666 (1925).) As

Thomas Cooley noted, the First Amendment’s

guarantee of free speech “undertakes to give no rights,

but it recognizes the rights mentioned as something

known, understood, and existing.” Thomas Cooley,

THE GENERAL PRINCIPLES OF CONSTITUTIONAL LAW,

(Little, Brown, & Co. 1880) at 272.

A sample of the speech activity at the time of

the founding helps define the breadth of the freedom

of speech recognized in the First Amendment. Thomas

Paine, of course, is the most famous example of the

pamphleteers during the time leading up to the

revolution. His pamphlet Common Sense urged his

fellow citizens to take direct action against the Crown.

John P. Kaminski, CITIZEN PAINE (Madison House

2002) at 7.

Such speech was not protected under British

rule. Paine thus chose to publish Common Sense

anonymously in its first printing. See id. Paine’s work

was influential. Another of Paine’s pamphlets, Crisis

(“These are the times that try men’s souls”), from The

American Crisis series, was read aloud to the troops

to inspire them as they prepared to attack the British

at Trenton. Id. at 11. That influence, however, is what

made Paine’s work dangerous to the British, and was

why they were anxious to stop his pamphleteering.

With these and other restrictions on speech

fresh in their memories, the founding generation set

out to draft their first state constitutions, even in the

midst of the war. These constitution writers were

careful to set out express protections for speech.

An example of the importance of these rights to

the founding generation is in the letter that the

Continental Congress sent to the “Inhabitants of

Quebec” in 1774. That letter listed freedom of the

press as one of the five great freedoms because it

facilitated “ready communication of thoughts between

subjects.” Journal of the Continental Congress, 1904

ed., vol. I, pp. 104, 108 quoted in Thornhill v.

Alabama, 310 U.S. 88, 102 (1940).

The revolution against the Crown was not the

only topic of controversy that generated pamphlets in

this period. The abolition of slavery was a topic that

divided the nation in the late 1700’s, and that would

send the nation into civil war in the 1800’s. The

Pennsylvania Abolition Society, formed in 1775, was

one organization that pushed its views on others.

Edward Needles, AN HISTORICAL MEMOIR OF THE

PENNSYLVANIA SOCIETY FOR PROMOTING THE

ABOLITION OF SLAVERY (Merrihew and Thompson

1848) at 14. The Society and other abolitionists during

this period engaged in legal actions, published books

against slavery, circulated petitions, and distributed

pamphlets. See id. at 17-18. The focus of their efforts

was to convince their fellow citizens of the inherent

evils of slavery. In their own way, the abolitionists

were an early example of a right to life organization,

promoting the view that we are equal in the eyes of

our Creator and entitled to life and liberty.

The arguments offered by the abolitionist were

designed to capture the attention of their fellow

citizens. In the words of William Garrison, in his antislavery newspaper, “The Liberator,” “I do not wish to

think, or speak, or write, with moderation … I am in

earnest – I will not equivocate – I will not excuse – I

will not retreat a single inch – AND I WILL BE

HEARD.” The Liberator, vol. 1, issue 1, January 1,

1831 (image available at http://fair-use.org/theliberator/1831/01/01/the-liberator-01-01.pdf).

Notwithstanding the controversial nature of

speech activity in the latter half of the 18th Century,

the founders were steadfast in their commitment to

protect speech rights. The failure to include a free

speech guarantee in the new Constitution was one of

the omissions that led many to argue against

ratification. E.g., George Mason’s Objections,

Massachusetts Centinel, reprinted in 14 The

Documentary History of the Ratification of the

Constitution at 149-50; Letter of George Lee

Turberville to Arthur Lee, reprinted in 8 The

Documentary History of the Ratification of the

Constitution at 128; Letter of Thomas Jefferson to

James Madison, reprinted in 8 The Documentary

History of the Ratification of the Constitution at 25051; Candidus II, Independent Chronicle, reprinted in

5 The Documentary History of the Ratification of the

Constitution at 498; Agrippa XII, Massachusetts

Gazette, reprinted in 5 The Documentary History of

the Ratification of the Constitution at 722.

A number of state ratifying conventions

proposed amendments to the new Constitution to cure

this omission. Virginia proposed a declaration of

rights that included a right of the people “to freedom

of speech, and of writing and publishing their

sentiments.” Virginia Ratification Debates reprinted

in 10 The Documentary History of the Ratification of

the Constitution at 1553. For its part, North Carolina

proposed a similar amendment. See Declaration of

Rights and Other Amendments, North Carolina

Ratifying Convention (Aug. 1, 1788), reprinted in 5

The Founders’ Constitution at 18. New York’s

convention proposed amendment to secure the rights

of assembly, petition, and freedom of the press. New

York Ratification of Constitution, 26 July 1788, Elliot

1:327--31, reprinted in 5 The Founders’ Constitution,

supra at 12. The Pennsylvania convention produced a

minority report putting forth proposed amendments

including a declaration that the people had “a right to

freedom of speech.” The Dissent of the Minority of the

Convention, reprinted in 2 The Documentary History

of the Ratification of the Constitution.

Madison ultimately promised to propose a Bill

of Rights in the first Congress. CREATING THE BILL OF

RIGHTS (Helen Veit, et al. eds. 1991) at xii. Although

Madison argued that a Bill of Rights provision

protecting speech rights would not itself stop

Congress from violating those rights, Jefferson

reminded him that such a guarantee in the

Constitution provided the judiciary the power it

needed to enforce the freedom. Madison repeated this

rationale as he rose to present the proposed

amendments to the House of Representatives. The

Firstness of the First Amendment, supra, at 467-68.

The First Amendment prohibited government

from attempting to silence citizens, especially on

matters of controversy. The people of the new nation

understood the scope of controversial matters on

which people would share their opinions. They

nonetheless insisted on including a prohibition on

“abridging freedom of speech” in their new

Constitution.

“America’s public schools are the nurseries of

democracy. Our representative democracy only works

if we protect the ‘marketplace of ideas.’” Mahanoy, 594

U.S. at 190. And students who grow up fearful of

saying controversial things will become adults who

have the same fears, to the detriment of the country.

Unfortunately, lower courts are using Tinker to grant

a broad heckler’s veto to those who are hostile to

conservative and traditional views. That is deeply in

tension with this Court’s statement that “Above all

else, the First Amendment means that government

has no power to restrict expression because of its

message, its ideas, its subject matter, or its content.”

Police Dep’t of City of Chicago v. Mosley, 408 U.S. 92,

95 (1972).

The Court should grant review to hold that

school officials cannot strategically rely on Tinker in

order to suppress speech that they disagree with.

III.

The Court Should Grant Review to Rule

that Speech Reflecting Foundational

Legal Principles That Have Been

Repeatedly Reaffirmed by the Supreme

Court

Cannot

Suppressed

Disruptive.

This Court has held that there are two sexes,

and that the differences between the two sexes are

based on biology. See United States v. Virginia, 518

U.S. 515, 533 (1996) (“Physical differences between

men and women, however, are enduring: ‘[T]he two

sexes are not fungible[.]’”) (quoting Ballard v. United

States, 329 U.S. 187, 193 (1946)) (emphasis added);

Frontiero v. Richardson, 411 U.S. 677, 686 (1973)

(“[S]ex, like race and national origin, is an immutable

characteristic determined solely by the accident of

birth[.]”) (emphasis added); Tuan Anh Nguyen v.

I.N.S., 533 U.S. 53, 68 (2001) (“[T]he mother’s

knowledge of the child and the fact of parenthood have

been established in a way not guaranteed in the case

of the unwed father.”); Newport News Shipbuilding

and Dry Dock Co. v. EEOC, 462 U.S. 669, 684 (1983)

(“[O]nly women can become pregnant[.]”); accord

Dobbs v. Jackson Women’s Health Org., 142 S. Ct.

2228, 2346 (2022) (dissenting opinion of JJ. Breyer,

Sotomayor, and Kagan) (“[A] majority of today’s Court

has wrenched this choice from women and given it to

the States.”) (emphasis added).

LM’s utterance that there are “two genders,” by

which he means that there are “two sexes,” based on

biology, is therefore a matter of fact as a legal

statement, and thus should generally not be subject to

governmental regulation. 2

Most recently, in Bostock, this Court relied on

the time-tested truth that sex is binary and

biologically determined. Bostock’s key passage is the

following:

[T]ake an employer who fires a

transgender person who was identified

as a male at birth but who now identifies

as a female. If the employer retains an

otherwise identical employee who was

identified as female at birth, the

employer intentionally penalizes a

person identified as male at birth for

traits or actions that it tolerates in an

Not to mention that the statement is undoubtedly true as a

matter of biology. The fact that there are rare disorders of sexual

development that sometimes make it difficult as a practical

matter to determine whether an infant is male or female or

sometimes result in external genitalia that appear to be

ambiguous does not mean that there are more than two sexes,

any more than the fact that in some rare cases persons are born

with more than ten fingers means that humans are not mammals

with ten fingers. Helen Joyce, TRANS: WHEN IDEOLOGY MEETS

REALITY 64-65 (2022 paperback ed.) (“Sexes are classes of

organisms defined by the developmental pathways that evolved

to produce gametes: eggs and sperm. As with any part of the

body, reproductive organs may develop in anomalous ways, just

as some people are born with extra fingers or toes, or missing

eyes or legs, but humans are still ten-fingered and ten-toed,

binocular and bipedal. For there to be even three sexes there

would have to be a third gamete, and there is not.” (internal

quotation marks omitted)).

employee identified as female at birth.

Again, the individual employee’s sex

plays

unmistakable

and

impermissible role in the discharge

decision.

140 S. Ct. at 1741‒42; see also U.S. Dep’t of Educ., Off.

for Civil Rts., Annual Report to the Secretary, the

President, and the Congress, at 27 (2021) (“The

Court’s holding stated that it was assuming that sex

referred to an employee’s biological sex, but in fact the

Court’s holding in Bostock relies on that assumption,

by noting that the employee who identifies as female

is biologically male[.]”). It is therefore a

jurisprudential truth that there are “only two sexes.”

Moreover, there are many statutes at the state

and federal levels that explicitly rely on the binary

nature of sex. As just one example: Title IX of the

Education Amendments of 1972 prohibits recipients

of federal funds—like schools—from discriminating

on the basis of sex, and treats sex as limited to the

binary categories of male and female, both objective

and fixed. 20 U.S.C. § 1681(a)(2) (“[T]his section shall

not apply . . . in the case of an educational institution

which has begun the process of changing from being

an institution which admits only students of one sex

to being an institution which admits students of both

sexes[.]”) (emphasis added); see also 20 U.S.C.

§ 1681(a)(8) (“[T]his section shall not preclude fatherson or mother-daughter activities at an educational

institution, but if such activities are provided for

students of one sex, opportunities for reasonably

comparable activities shall be provided for students of

the other sex[.]”) (emphasis added); see also Adams, 57

F.4th at 813 (“[R]eading in ambiguity to the term ‘sex’

ignores the overall statutory scheme and purpose of

Title IX, along with the vast majority of dictionaries

defining ‘sex’ based on biology and reproductive

function.”); see also Neese v. Becerra, No. 2:21-cv-163z, 2022 WL 1265925, at *12 (N.D. Tex. Apr. 26, 2022)

(“Title IX presumes sexual dimorphism in section

after section, requiring equal treatment for each

‘sex.’”).

Not to be left out, the executive branch has also

confirmed its view of sex as a binary in numerous

regulations, including under Title IX. See, e.g., 34

C.F.R. § 106.33 (“A recipient may provide separate

toilet, locker room, and shower facilities on the basis

of sex, but such facilities provided for students of one

sex shall be comparable to such facilities provided for

students of the other sex.”) (emphasis added); 34

C.F.R. § 106.34(a)(3) (“Classes . . . in elementary and

secondary schools that deal primarily with human

sexuality may be conducted in separate sessions for

boys and girls.”) (emphasis added); cf. 34 C.F.R. §

106.37(c)(1) (“To the extent that a recipient awards

athletic scholarships or grants-in-aid, it must provide

reasonable opportunities for such awards for

members of each sex in proportion to the number of

students of each sex participating in interscholastic or

intercollegiate athletics.”) (emphasis added); Emma

Colton, Transgender women must sign up for military

draft under Biden admin, trans men get a pass, Fox

News, Oct. 11, 2022 (“Transgender women must still

Selective Service. … Individuals who were born

female, but identify as male do not need to register for

the military draft, per the government.”). 3

Indeed, when the Department of Education

promulgated regulations under Title IX in 2020, it

once again properly emphasized this point in the

preamble to those regulations: “Title IX and its

implementing regulations include provisions that

presuppose sex as a binary classification, and

provisions in the Department’s current regulations,

which the Department did not propose to revise in this

rulemaking,

reflect

this

presupposition.”

Nondiscrimination on the Basis of Sex in Education

Programs or Activities Receiving Federal Financial

Assistance, 85 Fed. Reg. 30,026, 30,178 (May 19,

2020) (codified at 34 C.F.R. pt. 106) (emphasis added);

see also Adams, 57 F.4th at 813 (“If sex were

ambiguous, it is difficult to fathom why the drafters of

Title IX went through the trouble of providing an

express carve-out for sex-separated living facilities, as

part of the overall statutory scheme.”). And this Court

has unanimously indicated that expanding the

definition of sex discrimination to include all gender

identity discrimination is questionable. See Dep’t of

Educ. v. Louisiana, 603 U.S. 866, 144 S. Ct. 2509,

2510 (2024) (“Importantly, all Members of the Court

today accept that the plaintiffs were entitled to

https://www.foxnews.com/us/transgender-women-must-signup-military-draft-biden-admin-trans-men-pass

preliminary injunctive relief as to three provisions of

the rule, including the central provision that newly

defines sex discrimination to include discrimination

on the basis of sexual orientation and gender

identity.”).

In sum, given that as a legal matter, there are

in fact only two sexes, and given that this biological

and jurisprudential reality has been repeatedly

reaffirmed by all branches of government at all levels,

students are almost certain to hear it repeated in

many walks of life, including their biology, social

studies classes, government classes that include units

on the Supreme Court, and of course news media and

casual conversations. No case has ever held that a

legally true statement that a student could just as

likely hear in his or her classes suddenly becomes an

identity-based attack that disrupts the rights of

others, when placed on a t-shirt. This is an

independent reason to grant certiorari.

Conclusion

For the foregoing reasons, this Court grant

review in order to uphold LM’s claim, and hold that

his school violated his First Amendment rights.

Respectfully submitted,

William E. Trachman

Counsel of Record

James L. Kerwin

MOUNTAIN STATES

LEGAL FOUNDATION

2596 S Lewis Way

Lakewood, CO 80227

(303) 292-2021

wtrachman@mslegal.org

John C, Eastman

Anthony T, Caso

CONSTITUTIONAL

COUNSEL GROUP

1628 N. Main St

#289

Salinas, CA 93906

(909) 257-3869

jeastman@ccg1176.com

November 12, 2024

Attorneys for Amici Curiae

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.