Amicus Curiae Brief — Richard Lowery, Petitioner v. Lillian Mills, Dean of the McCombs School of Business at the University of Texas at Austin, et al.

Supreme Court briefMar 9, 2026

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No. 25-927

In The

Supreme Court of the United States

RICHARD LOWERY,

Petitioner,

LILLIAN MILLS, DEAN OF THE MCCOMBS SCHOOL OF

BUSINESS AT THE UNIVERSITY OF TEXAS AT AUSTIN, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

BRIEF OF THE INSTITUTE FOR JUSTICE AS

AMICUS CURIAE SUPPORTING PETITIONER

Benjamin A. Field

Counsel of Record

Benjamin K. Marsh

Anya Bidwell

INSTITUTE FOR JUSTICE

901 North Glebe Road,

Suite 900

Arlington, VA 22203

(703) 682-9320

bfield@ij.org

TABLE OF CONTENTS

Page

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

INTEREST OF AMICUS CURIAE ........................... 1

SUMMARY OF ARGUMENT.................................... 1

ARGUMENT .............................................................. 4

The First Amendment prohibits

government actors from wielding their

power

retaliate

against

constitutionally protected speech. ................. 4

A. This Court has consistently upheld

the rule that action by the

government to retaliate against

protected speech is unconstitutional,

without any sort of not-adverseenough threshold. ..................................... 5

B. This Court has rejected policy-based

rules altering the standard for First

Amendment retaliation claims................. 7

C. Other limitations on retaliation

claims reflect that there are no

additional requirements beyond

showing retaliation because of

protected speech...................................... 10

II. The Court should take this case to bring

the circuits into line with its

longstanding simple rule: Plaintiffs can

seek redress if the government takes

official action to retaliate against

protected speech.. ......................................... 15

A. Each circuit has developed standards requiring that government

actions be adverse enough to sustain

retaliation claims. ................................... 15

B. The circuits’ not-adverse-enough

rules are depriving Americans of

recourse for violations of their

constitutional rights. .............................. 17

CONCLUSION ......................................................... 24

iii

TABLE OF AUTHORITIES

Page(s)

CASES

ACLU of Md., Inc. v. Wicomico County,

999 F.2d 780 (4th Cir. 1993)............................... 22

Bailey v. Wheeler,

843 F.3d 473 (11th Cir. 2016)............................. 16

Barton v. Clancy,

632 F.3d 9 (1st Cir. 2011) ................................... 16

Battacharya v. Murray,

93 F.4th 675 (4th Cir. 2024) ............................... 17

Batyukova v. Doege,

994 F.3d 717 (5th Cir. 2021)............................... 17

Blair v. Bethel Sch. Dist.,

608 F.3d 540 (9th Cir. 2010)............................... 16

Breaux v. City of Garland,

205 F.3d 150 (5th Cir. 2000)............................... 17

Connick v. Myers,

461 U.S. 138 (1983) ............................................. 11

Cooperrider v. Woods,

127 F.4th 1019 (6th Cir. 2025) ........................... 16

Crawford-El v. Britton,

523 U.S. 574 (1998) ........................... 5, 7–8, 11, 17

Fed. Bureau of Investigation v. Fikre,

601 U.S. 234 (2024) ............................................. 10

FKFJ, Inc. v. Village of Worth,

11 F.4th 574 (7th Cir. 2021) ............................... 16

Garcetti v. Ceballos,

547 U.S. 410 (2006) ............................................. 11

Gonzalez v. Trevino,

602 U.S. 653 (2024) ........................................... 1, 5

Green v. City of St. Louis,

52 F.4th 734 (8th Cir. 2022) ............................... 16

Hartman v. Moore,

547 U.S. 250 (2006) ............................... 5–7, 13–14

Houston Cmty. Coll. Sys. v. Wilson,

595 U.S. 468 (2022) ......................................... 6, 12

Irizarry v. Yehia,

38 F.4th 1282 (10th Cir. 2022) ........................... 16

J.T.H. v. Mo. Dep’t of Soc. Servs. Children’s Div.,

39 F.4th 489 (8th Cir. 2022),

cert. denied, 143 S. Ct. 579 (2023) ................ 18–20

Johnson v. Washoe Cnty. Sch. Dist.,

No. 3:22-cv-00520,

2024 WL 196523 (D. Nev. Jan. 18, 2024)........... 22

Knowles v. Exeter Township,

No. 3:19-cv-2115,

2024 WL 897841 (M.D. Pa. Mar. 1, 2024).......... 22

Lowery v. Mills,

157 F.4th 729 (5th Cir. 2025) ............................. 18

Lozman v. City of Riviera Beach,

585 U.S. 87 (2018) ................................................. 6

Matherne v. Larpenter,

54 F. Supp. 2d 684 (E.D. La. 1999) .................... 23

Mattox v. City of Forest Park,

183 F.3d 515 (6th Cir. 1999)............................... 21

Media Matters for Am. v. Paxton,

138 F.4th 563 (D.C. Cir. 2025) ........................... 16

Mirabella v. Villard,

853 F.3d 641 (3d Cir. 2017) ................................ 16

Moore v. Shelby County,

369 F. Supp. 3d 802 (E.D. Ky. 2019) ............ 22–23

Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,

429 U.S. 274 (1977) ..................................... 2, 5, 11

Mulligan v. Nichols,

835 F.3d 983 (9th Cir. 2016)......................... 20–21

Nat’l Rifle Ass’n of Am. v. Vullo,

602 U.S. 175 (2024) ............................................... 6

Nieves v. Bartlett,

587 U.S. 391 (2019) ................................. 2, 5–6, 13

Pickering v. Bd. of Educ. of Township High Sch.

Dist. 205,

391 U.S. 563 (1968) ............................................. 11

Roth v. Sloan,

No. 1:08-cv-1656,

2011 WL 1627932 (N.D. Ohio Apr. 29, 2011) .... 23

Uzuegbunam v. Preczewski,

592 U.S. 279 (2021) ......................................... 9–10

Villarreal v. City of Laredo,

134 F.4th 273 (5th Cir. 2025) ............................. 14

Walker v. Senecal,

130 F.4th 291 (2d Cir. 2025)............................... 16

STATUTES AND RULES

28 U.S.C. § 1331 ....................................................... 10

28 U.S.C. § 1343 ....................................................... 10

42 U.S.C. § 1983 ..................................................... 4, 9

S. Ct. Rule 37.............................................................. 1

OTHER AUTHORITIES

Br. of U.S. as Amicus Curiae, Gonzalez v. Trevino,

602 U.S. 653 (2024) ............................................. 14

INTEREST OF AMICUS CURIAE1

The Institute for Justice (IJ) is a nonprofit public

interest law firm committed to defending the essential foundations of a free society by securing greater

protection for individual liberty. One of the pillars of

that mission is the protection and defense of Americans’ First Amendment right of speech and expression. Inherent in this First Amendment freedom is the

ability to speak without facing retaliatory action by

government actors meant to punish or suppress disfavored expression. To defend this principle, IJ represents clients challenging First Amendment retaliation, including successfully before this Court in Gonzalez v. Trevino, 602 U.S. 653 (2024).

SUMMARY OF ARGUMENT

The First Amendment’s Free Speech Clause is not

complicated. It forbids government actors from wielding their power against Americans to punish or suppress protected expression. Sometimes, unconstitutional censorship comes in the easy-to-identify form of

ex ante prohibition—for instance, a law banning a

particular viewpoint or expression on a particular

topic. But sometimes, censorship is more covert and

after-the-fact, where government officials wield their

power to penalize speech they dislike. In both cases,

1 Pursuant to Rule 37.6, Amicus affirms that no counsel for

any party authored this brief in whole or in part or made a monetary contribution intended to fund the preparation or submission of this brief. No persons other than Amicus made a monetary contribution to its preparation or submission. Amicus

timely notified the parties of its intention to file this brief as required by Rule 37.2.

the effect is the same: The government is unconstitutionally punishing expression based on its content.

And both have the pernicious effect of chilling future

speech.

This Court’s cases have consistently recognized

that both types of censorship are unconstitutional and

support claims under Section 1983. The latter type

has been characterized as retaliation claims, and the

rule for them has long been straightforward: “The

First Amendment prohibits government officials from

subjecting an individual to retaliatory actions for engaging in protected speech.” Nieves v. Bartlett, 587

U.S. 391, 398 (2019) (cleaned up). In other words, if a

government official would not have taken some adverse action ‘but for’ the speaker’s protected expression, that is unconstitutional. E.g., Mt. Healthy City

Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 285-87

(1977).

This Court has rejected attempts to alter, modify,

or supplement that straightforward rule. Though

there are doctrines that establish parameters for

what speech is constitutionally protected and for evaluating but-for causation in a couple of thorny fact patterns, this Court has never adopted any additional requirement for a First Amendment retaliation claim

beyond a plaintiff showing that a government official

took adverse action against her because of her protected expression.

Yet the circuit courts have uniformly added an additional requirement on their own: The retaliatory

government action must reach of threshold of being

adverse enough to support a retaliation claim. In

other words, they have effectively given government

officials a free pass to intentionally wield their power

to punish protected speech—just so long as they don’t

do it too much.

Those circuit-court rules have no grounding in this

Court’s precedent or in basic principles of constitutional law. And this Court has already rejected lower

courts’ attempts to create policy-based rules to restrict First Amendment retaliation claims. Rightly so:

There is no subjective small-claims exception to the

Bill of Rights or to Congress’s statutory grant of federal-question and civil-rights jurisdiction to the federal courts.

Petitioner’s case presents one flavor of the circuits’

not-adverse-enough rules.2 According to the Fifth Circuit, only a narrow set of formal employment actions

can support a retaliation claim, and nothing else.

That rule is wrong for the reasons Petitioner explains.

But more consequentially, it is wrong for the same

reason that all the circuits’ not-adverse-enough rules

are wrong. They have no basis in the First Amendment, and they contradict this Court’s consistent,

simple statements of the rule against retaliation. In

our view, those rules’ most pernicious applications are

not in the government-employment context, but when

wielded to bar First Amendment claims by private citizens facing retaliation for their protected speech.

2 While a bit clunky, we believe that “not-adverse-enough” is

a short and accurate description of what the circuit courts’ rules

are actually doing to limit First Amendment retaliation claims.

We write this brief to urge the Court to grant the

petition and use this case as an opportunity to more

broadly disavow the circuits’ not-adverse-enough

rules—not just in the public-employment context, but

for all First Amendment retaliation claims. Part I

shows that this Court has consistently applied a

straightforward standard for First Amendment retaliation claims, which is at odds with the circuits’ current not-adverse-enough rules. Against that backdrop, Part II shows how pervasive the circuit courts’

not-adverse-enough rules have become and provides

illustrative examples of how those rules have prevented justice for private Americans who speak out

against the government and suffer retaliation for it.

ARGUMENT

The First Amendment prohibits government actors from wielding their power to

retaliate against constitutionally protected speech.

This Court’s retaliation cases have for decades affirmed a simple rule against First Amendment retaliation: Government officials cannot wield their power

against individuals for engaging in protected speech.

And, accordingly, a victim of such retaliation has a

claim under 42 U.S.C. § 1983. This Court has rejected

efforts by lower courts in the past to modify or supplement that simple rule, and none of its First Amendment retaliation cases have ever narrowed it.

A. This Court has consistently upheld the

rule that action by the government to

retaliate against protected speech is

unconstitutional, without any sort of

not-adverse-enough threshold.

“The First Amendment prohibits government officials from subjecting an individual to retaliatory actions for engaging in protected speech.” Nieves, 587

U.S. at 398 (cleaned up). As this Court has explained,

that means that if protected speech is a “substantial”

or “motivating” factor behind the government’s adverse action against an individual—i.e., if protected

speech is a “but-for” cause of the adverse action—that

is unconstitutional. E.g., Mt. Healthy, 429 U.S. at 28587. That was clear no later than Mt. Healthy, half a

century ago. Indeed, twenty years later, this Court reaffirmed that “the general rule has long been clearly

established” that “the First Amendment bars retaliation for protected speech.” Crawford-El v. Britton, 523

U.S. 574, 592 (1998).

The Court has reiterated that same simple rule,

again and again. For instance:



“[T]he law is settled that as a general matter the First Amendment prohibits government officials from subjecting an individual

to retaliatory actions * * * for speaking out.”

Gonzalez v. Trevino, 602 U.S. 653, 662

(2024) (Alito, J., concurring) (quoting Hartman v. Moore, 547 U.S. 250, 256 (2006)).



“A government official can share her views

freely and criticize particular beliefs. * * *

What she cannot do, however, is use the

power of the State to punish or suppress disfavored expression.” Nat’l Rifle Ass’n of Am.

v. Vullo, 602 U.S. 175, 188 (2024) (cleaned

up).



“[N]o one before us questions that, ‘[a]s a

general matter,’ the First Amendment prohibits government officials from subjecting

individuals to ‘retaliatory actions’ after the

fact for having engaged in protected

speech.” Houston Cmty. Coll. Sys. v. Wilson,

595 U.S. 468, 474 (2022) (second alteration

in original) (quoting Nieves, 587 U.S. at

398).



“‘[A]s a general matter the First Amendment prohibits government officials from

subjecting an individual to retaliatory actions’ for engaging in protected speech.”

Nieves, 587 U.S. at 398 (alteration in original) (quoting Hartman, 547 U.S. at 256).



“[T]he First Amendment prohibits government officials from retaliating against individuals for engaging in protected speech.”

Lozman v. City of Riviera Beach, 585 U.S.

87, 90 (2018).



“Official reprisal for protected speech ‘offends the Constitution [because] it threatens to inhibit exercise of the protected

right,’ * * * and the law is settled that as a

general matter the First Amendment prohibits government officials from subjecting

an individual to retaliatory actions * * * for

speaking out.” Hartman, 547 U.S. at 256

(alteration in original) (quoting CrawfordEl, 523 U.S. at 588 n.10).

These all reflect the same simple rule. If an American engages in First Amendment-protected speech,

and the government takes retaliatory action because

of that speech, that violates the Constitution.

Contrary to the Fifth Circuit’s decision below, this

Court has never imposed an additional requirement

that a plaintiff bringing such a claim must also show

that the government’s retaliation against her protected speech is somehow adverse enough.

B. This Court has rejected policy-based

rules altering the standard for First

Amendment retaliation claims.

The Fifth Circuit’s rule allowing only certain types

of retaliatory actions to count for purposes of a retaliation claim has no support in this Court’s long-repeated statement of the rule against First Amendment retaliation. And this Court has already rejected

efforts by the lower courts to graft on additional requirements for First Amendment retaliation claims.

See Crawford-El, 523 U.S. at 600-01.

Crawford-El involved a prisoner who brought a

First Amendment retaliation claim against a prison

official, alleging the official had misdirected the prisoner’s belongings during prison transfers to retaliate

against the prisoner for speaking out about prison

conditions and assisting other prisoners with their

cases. Id. at 578-79. Sitting en banc, the D.C. Circuit

created a special rule for civil-rights damages claims,

like First Amendment retaliation claims, that involve

proving the government defendant’s improper motive.

That court held that any plaintiff bringing such

claims would be required to prove improper motive by

clear and convincing evidence. Id. at 584-85.

This Court firmly rejected such an innovation. As

it correctly identified, the D.C. Circuit’s heightened

standard was a policy-based rule reflecting its own

views of when it would be wise to allow discovery in

cases involving allegations of unconstitutional motives. Id. at 595. As this Court explained, adding any

such rules for a Section 1983 claim is a choice for Congress—not the courts—and “for the courts of appeals

or this Court to change the burden of proof for an entire category of claims would stray far from the traditional limits on judicial authority.” See id. at 593-95.

Put differently, Crawford-El recognized that the

Constitution’s straightforward rule barring retaliation against protected expression is categorical.

Courts may not fashion special rules to limit constitutional claims based on that simple principle.

A similar reasoning applies here. As this Court

has repeatedly explained, the First Amendment bars

official retaliation against protected speech. Supra

Part I.A. And the lesson of Crawford-El is that the

lower courts may not invent and impose heightened

standards to make it more difficult for plaintiffs to

bring certain categories of civil-rights cases in federal

court. Just as Crawford-El held that courts cannot

impose heightened pleading standards because

they’re skeptical of First Amendment retaliation

plaintiffs, it is just as improper to impose some kind

of implicit amount-in-controversy requirement to

screen out cases that judges subjectively feel are not

important enough.

The Constitution’s prohibition against censorship

has no exception for minor censorship. If a town

passed a law and fined every voter who criticized the

mayor $10, it would obviously be no defense to a federal suit for the defendants to say that it wasn’t that

big a deal. Our constitutional rights are precious, and

they should not depend on judges’ subjective determinations of which rights violations are or are not sufficiently important to be in their courthouses. The punishment of speech through government retaliation

should be treated no differently.

And just as Crawford-El renounced judicially devised limitations on Section 1983 claims, that statute

has no carve-outs for supposedly not-adverse-enough

constitutional violations. See 42 U.S.C. § 1983

(providing that “[e]very person” acting under color of

state law who “subject[s]” an American “to the deprivation of any rights, privileges, or immunities secured

by the Constitution and laws, shall be liable to the

party injured”); see also Uzuegbunam v. Preczewski,

592 U.S. 279, 290 (2021) (“Every injury imports a

damage, so a plaintiff who proves a legal violation can

always obtain some form of damages because he must

of necessity have a means to vindicate and maintain

the right.” (cleaned up)). Similarly, Congress has provided no free passes for supposedly small constitutional violations in its statutes granting the federal

courts jurisdiction over federal questions or civil

rights. See 28 U.S.C. §§ 1331, 1343; cf. Fed. Bureau of

Investigation v. Fikre, 601 U.S. 234, 240 (2024) (“A

court with jurisdiction has a virtually unflagging obligation to hear and resolve questions properly before

it.” (cleaned up)).

C. Other limitations on retaliation claims

reflect that there are no additional requirements beyond showing retaliation because of protected speech.

The constitutional rule against retaliation is simple: The government may not take retaliatory action

against a person because of their protected speech.

But that does not mean every would-be plaintiff will

satisfy the simple rule. This Court has taken many

First Amendment cases over the years to define the

scope of what expression it protects and, in the retaliation context specifically, how a plaintiff must prove

that retaliatory animus in fact caused the government’s adverse action. All these cases, though, reinforce the simple rule for retaliation claims. Even

when limiting what types of speech are protected or

how a plaintiff can show retaliatory causation, they

have never grafted on some additional requirement.

1. This is true in public-employment cases, which

were among the first types of First Amendment retaliation cases to be recognized by this Court. As

Mt. Healthy elaborated, public employees cannot be

fired for speaking out as private citizens. 429 U.S. at

283-84. But that does not mean every public-employee

suit will succeed. The government defendants can disprove retaliatory causation by showing that there are

reasons unrelated to protected speech that are sufficient to terminate the employee. Id. at 287.

Public employees may also fail to establish a retaliation claim if their speech was not protected by the

First Amendment in the first place. A long line of

cases from this Court have parsed out when public

employees are speaking as private citizens entitled to

First Amendment protection from when they are acting in their professional capacities subject to supervisory discipline for their speech. E.g., Pickering v. Bd.

of Educ. of Township High Sch. Dist. 205, 391 U.S.

563 (1968); Connick v. Myers, 461 U.S. 138 (1983);

Garcetti v. Ceballos, 547 U.S. 410 (2006). But these

rules are neither additional requirements for, nor limitations on, retaliation claims under the First Amendment. Instead, they are simply tools for evaluating

whether the plaintiff was engaging in speech protected by the First Amendment at all.3

2. Houston Community College arose in the cousin

context of elected officials, as opposed to public employees. Though this Court rejected the retaliation

claim there, it invented no special rules. It just held

that the First Amendment did not protect an elected

3 Indeed, Crawford-El explained how these sorts of existing

constitutional rules already filter out frivolous claims, which was

yet more reason courts shouldn’t be fashioning additional requirements for First Amendment retaliation claims. See 523

U.S. at 592-93.

official’s speech against the counter-speech of his fellow elected officials.

In that case, a community college-system board

member was censured by the rest of the board after

he repeatedly disagreed with his fellow board members and filed various lawsuits challenging the

board’s actions. Houston Cmty. Coll., 595 U.S. at 471.

The censured board member sued, alleging the censure was unconstitutional retaliation. Id. at 472. Applying ordinary constitutional analysis, the Court

surveyed history, tradition, and practice to determine

whether the First Amendment provided any protection for a member of an elected body to speak out

without facing censure from his fellow members. See

id. at 474-77. The answer was no. Id. at 477. So, based

on the distinctive context, no First Amendment right

was violated in the first place.

The Court did observe in passing that lower courts

have espoused various approaches to “distinguish material from immaterial adverse actions.” Id. at 477.

But crucially, the Court did not endorse or apply any

rule akin to the Fifth Circuit’s here. The Court’s analysis instead turned simply on whether the board

member’s speech was protected from censure by the

First Amendment, not a more general ruling on

whether censure is adverse enough to chill speech. Id.

Indeed, censure may very well have the effect of

chilling speech. That’s certainly the intent of a censure. But the question in Houston Community College

was not whether the censure was adverse enough. Rather, the question was whether history revealed that

the First Amendment allowed members of a publicly

elected body to censure their fellow members. The history showed that was indeed constitutionally permissible, so there could be no retaliation claim.

3. Similar to how Houston Community College rejected a retaliation claim in the special arena of public-body censures of their own members, Hartman and

Nieves elucidated how causation is evaluated in the

exceptional contexts of retaliatory prosecutions and

arrests. In Hartman, the Court held that a plaintiff

must plead and prove a lack of probable cause to sustain a claim for a retaliatory prosecution, 547 U.S. at

265-66, and the Court extended that rule (with an exception) to retaliatory arrest claims in Nieves, 587

U.S. at 408.

Neither case added any additional requirements to

the basic rule against First Amendment retaliation.

They simply recognized that prosecutions and arrests

present circumstances where it can be especially complicated to prove that retaliatory animus is, in fact, a

but-for cause of the government’s action when there

is also probable cause that the plaintiff committed an

underlying offense. See Hartman, 547 U.S. at 263

(“Herein lies the distinct problem of causation in cases

like this one. Evidence of an inspector’s animus does

not necessarily show that the inspector induced the

action of a prosecutor who would not have pressed

charges otherwise.”); Nieves, 587 U.S. at 402 (“[I]t is

particularly difficult to determine whether the adverse government action was caused by the officer’s

malice or the plaintiff’s potentially criminal conduct.”).

So those cases crafted rules about how the Section

1983 tort would work in these distinctive cases when

it comes to proving retaliatory causation by disproving probable cause. Neither turned on an assessment

that retaliatory prosecution or arrest was shielded

from liability on the ground that it wasn’t adverse

enough. To the contrary, Hartman recognized that

“the First Amendment prohibits government officials

from subjecting an individual to retaliatory actions,

including criminal prosecutions, for speaking out.”

547 U.S. at 256 (emphasis added). But it nonetheless

adopted a probable-cause rule because of the special

problem of proving retaliatory animus in fact caused

a prosecution when there was also probable cause

that would support a non-retaliatory prosecution.

In this vein, it’s worth a moment on the distinction

between the substantive First Amendment right prohibiting the government from retaliating against protected speech and the remedy for such retaliation under Section 1983. As Judge Oldham has explained,

this Court’s cases “ma[k]e clear that its probablecause bar inheres in the remedy afforded by § 1983

and not in the First Amendment right against retaliatory arrest.” Villarreal v. City of Laredo, 134 F.4th

273, 277 (5th Cir. 2025) (en banc) (Oldham, J., concurring). Likewise, the Solicitor General has also recognized that the probable-cause rules of Hartman and

Nieves are “a requirement for a damages claim under

Section 1983, not a limitation on the First Amendment itself.” Br. of U.S. as Amicus Curiae at 11, Gonzalez, 602 U.S. 653.

But the circuit courts’ not-adverse-enough rules

have erroneously been based on reading a limitation

into the First Amendment itself. They aren’t like

Hartman and Nieves, which fashioned tort principles

for proving whether there was in fact retaliation that

would violate the First Amendment. They’re instead

the kind of independent limitations on claims to rectify well-established First Amendment violations that

were rejected in Crawford-El.

II.

The Court should take this case to bring

the circuits into line with its longstanding

simple rule: Plaintiffs can seek redress if

the government takes official action to retaliate against protected speech.

Contrary to this Court’s simple rule for First

Amendment retaliation, the circuit courts have added

an additional requirement by demanding that plaintiffs show the government’s retaliation has reached

some level that a judge considers to be adverse

enough. Though the circuits vary slightly in wording,

the effect on Americans exercising their First Amendment rights remains the same: If a court doesn’t think

the government’s retaliatory action is bad enough, a

plaintiff has no recourse.

A. Each circuit has developed standards

requiring that government actions be

adverse enough to sustain retaliation

claims.

This case involves a government employee and

presents a circuit split on the specific question of what

types of retaliatory employment actions will support

a First Amendment claim. But it illustrates a bigger

problem that affects all sorts of First Amendment

retaliation claims, including those by ordinary Americans who speak out as private citizens and do not

work for the government. While the Fifth Circuit’s

rule is particularly harsh, it is not unique. By our

count, all the circuits have fashioned rules that bar

retaliation claims if, in the subjective view of a judge,

the government’s retaliation is not adverse enough.

The Third, Sixth, Seventh, Eighth, Ninth, Tenth,

Eleventh, and D.C. Circuits say some retaliation is

fine so long is it wouldn’t “deter a person of ordinary

firmness from exercising” her First Amendment

rights. Mirabella v. Villard, 853 F.3d 641, 649 (3d Cir.

2017); see Cooperrider v. Woods, 127 F.4th 1019, 1037

(6th Cir. 2025) (same); FKFJ, Inc. v. Village of Worth,

11 F.4th 574, 585 (7th Cir. 2021) (same); Green v. City

of St. Louis, 52 F.4th 734, 739 (8th Cir. 2022) (same);

Blair v. Bethel Sch. Dist., 608 F.3d 540, 543 (9th Cir.

2010); Irizarry v. Yehia, 38 F.4th 1282, 1288 (10th Cir.

2022) (same); Bailey v. Wheeler, 843 F.3d 473, 481

(11th Cir. 2016) (same); Media Matters for Am. v. Paxton, 138 F.4th 563, 584 (D.C. Cir. 2025) (same). The

Second Circuit’s test is similar, but it also requires

that the person of ordinary firmness be “similarly situated” to the plaintiff. Walker v. Senecal, 130 F.4th

291, 298 (2d Cir. 2025).

The First Circuit uses slightly different wording

with the same basic meaning. There, government defendants get a pass on retaliating against protected

speech if a judge doesn’t think the official’s action

“would deter a reasonably hardy individual” from

speaking. Barton v. Clancy, 632 F.3d 9, 29 (1st Cir.

2011) (cleaned up).

The Fourth Circuit insists that a plaintiff must

show both that the government’s action “may tend to

chill” protected speech and is “more than ‘de minimis

inconvenience’” before it will remedy the government’s retaliation. Battacharya v. Murray, 93 F.4th

675, 689 (4th Cir. 2024).

For its part, the Fifth Circuit follows the others for

private citizens’ claims, permitting retaliation until it

“would chill a person of ordinary firmness” from continuing to speak. Batyukova v. Doege, 994 F.3d 717,

730 (5th Cir. 2021). And, as this case shows, government employers there are currently free to retaliate

at will through employment actions short of “discharges, demotions, refusals to hire, refusals to promote, and reprimands.” Breaux v. City of Garland,

205 F.3d 150, 157 (5th Cir. 2000).

In sum, though the circuits use slightly different

(but functionally similar) formulations, they all add

an additional not-adverse-enough threshold requirement to the simple rule that this Court has long followed for First Amendment retaliation claims.

B. The circuits’ not-adverse-enough rules

are depriving Americans of recourse

for violations of their constitutional

rights.

The not-adverse-enough standards the circuits

have developed may make the courts’ retaliation

cases easier to dispose of, but that is no virtue. See

Crawford-El, 523 U.S. at 595-97. The natural effect of

these not-adverse-enough rules is that ordinary people are deprived of any recourse when government

officials retaliate against them for their constitutionally protected speech. A few examples illustrate the

problem.

1. The Fifth Circuit’s ruling in this case encapsulates the problem perfectly. Here, a college professor

exercised his First Amendment rights to criticize his

public university’s policies around DEI, critical race

theory, affirmative action, and academic freedom.

Lowery v. Mills, 157 F.4th 729, 734-35 (5th Cir. 2025).

University officials then threatened the professor’s salary, institutional affiliations, and research

opportunities to stop him from criticizing the university. Id. at 743. The Fifth Circuit applied its version

of a not-adverse-enough rule to hold that the university’s threats—in direct retaliation for his First

Amendment-protected speech—were not enough to

sustain a retaliation claim. Id. This is even though the

Court also recognized, in its standing analysis, that

the university’s actions were sufficiently severe to actually chill Professor Lowery’s speech and to concretely injure him. Id. at 739-40. Of course they were:

Just as actually firing somebody or reducing their pay

to punish them for protected speech trenches on First

Amendment freedoms, so too do credible threats to do

those very things. The Fifth Circuit’s rule leaves government officials free to silence public employees’ criticisms, so long as they are clever about it.

2. Rules like the Fifth Circuit’s also reach well beyond government employees to ensnare private citizens who speak out against the government. Consider

a case out of the Eighth Circuit, J.T.H. v. Mo. Dep’t of

Soc. Servs. Children’s Div., 39 F.4th 489 (8th Cir.

2022), cert. denied, 143 S. Ct. 579 (2023). (IJ represented the plaintiffs in their petition to this Court.)

There, a sheriff’s deputy in a small Missouri town

sexually abused a 15-year-old boy. Id. at 491. The

boy’s parents, exercising their First Amendment

rights to speech and petition, complained and threatened to sue after learning about the abuse. Id. As if

on cue, a child-welfare investigator then showed up at

the family’s home to investigate child neglect. Id.

Though the parents asked for the case to be reassigned to an official from another county who could be

more neutral, the investigator refused. Id.

The family’s life was quickly turned upside down.

See id. The investigator told the boy’s father she was

coming after his law-enforcement license. Id. She also

issued findings of neglect that would have placed the

parents on a state registry of neglectful parents. Id.

When the parents sought formal review of the findings, it was the investigator herself who reviewed and

upheld her own findings. Id. But when the parents

and the investigator appeared before the state’s childneglect board—the final stop in the review process—

it determined the investigator’s findings were unsubstantiated. Id.

Having had their lives upended by a baseless investigation because they spoke out against the police’s abuse of their son, the parents brought a First

Amendment retaliation claim. Id. The Eighth Circuit,

however, acted like the Fifth Circuit below in this case

by holding that only some kinds of adverse actions

could ground a retaliation claim. And in its view, retaliatory investigations—even in direct response to

the parents’ constitutionally protected speech—could

not support a First Amendment claim. Id. at 493.

3. That is not the only time government actors

have been given a pass for wielding state investigatory powers in a retaliatory fashion. In fact, the circuits’ not-adverse-enough rules are particularly problematic when the government uses sensitive information acquired through its unique investigatory

powers against those whose speech it wishes to punish.

Take Mulligan v. Nichols, 835 F.3d 983 (9th Cir.

2016), for example. Mulligan was chased and beaten

by Los Angeles Police Department officers, seemingly

because they confused him with a different person fitting his description. Id. at 986-87. After he filed an

administrative claim against the city and the case began to garner significant media attention, the officers’

police report was leaked to news outlets. Id. As media

pressure on the LAPD intensified, the police union issued a press release “accusing Mulligan of being a frequent user of bath salts,” synthetic stimulants that

mimic the effects of amphetamines and cocaine. Id. at

987 & n.2. The press release also leaked a taped conversation between Mulligan and an officer from a

nearby department in which he admitted to having

used bath salts in the past. Id. at 987. The revelations

and resulting media coverage caused Mulligan to lose

his job. Id.

He filed suit against the officers and department,

alleging that their campaign of leaking sensitive police information was retaliation for criticizing the officers in his petition. Id. The Ninth Circuit, however,

rejected the suit. In the court’s view, his actions may

have been constitutionally protected, and he may

have suffered intentionally malicious actions in response, but the government’s retaliation was still not

“tangible” enough to count. Id. at 989.

A similar result occurred in Mattox v. City of Forest Park, 183 F.3d 515 (6th Cir. 1999), where the Sixth

Circuit held that a firefighter had no recourse against

the government’s retaliation using its investigative

powers. There, a city investigated a firefighter’s publicly stated concerns over the fire department’s operations. Id. at 518.

But the lengthy report didn’t just investigate problems in the department. It also revealed private, personal information about the complaining firefighter,

including the full transcript of her investigative interview in which she retold a traumatic incident from

her childhood. Id. at 522-23. The report also disclosed

answers to questions she was asked about her private

relationships and affairs with other members of the

fire department, and it reprinted entire pages of her

date book in full. Id.

The firefighter sued, alleging that these revelations of her private, personal information were made

intentionally in retaliation for her raising the initial

concerns that led to the investigation. Id. at 518. But

in the eyes of the Sixth Circuit, the government’s use

of its investigative power to reveal her intimate and

personal information that marred her “character and

reputation” and made her the object of “ridicule, contempt, shame, and disgrace” were simply not bad

enough to support a claim. Id. at 523.

4. There are many other types of official authority

governments can wield to retaliate, whose weaponization the lower courts have not found adverse enough.

In one such case, an ACLU paralegal had been meeting with inmates at a county detention center to document their complaints. ACLU of Md., Inc. v. Wicomico County, 999 F.2d 780, 782 (4th Cir. 1993). The

ACLU later relied on some of the paralegal’s investigations to file suit against the detention center. Id.

The detention center retaliated against this exercise of the ACLU’s speech and petition rights by denying the paralegal any further access to interview inmates. Id. The ACLU sued again, now bringing a

claim for First Amendment retaliation. Id. at 783. The

Fourth Circuit, however, rejected the suit. Id. at 785.

Even assuming that the change in policy “was done in

response to filing of a lawsuit,” the court held it was

“not sufficiently adverse to her or to the ACLU to constitute retaliation.” Id. (emphasis added).

5. And those are just some examples. The lower

courts are regularly dismissing retaliation cases

based on their not-adverse-enough rules. See, e.g.,

Knowles v. Exeter Township, No. 3:19-cv-2115, 2024

WL 897841 (M.D. Pa. Mar. 1, 2024) (government defendants’ campaign of harassment insufficiently severe); Johnson v. Washoe Cnty. Sch. Dist., No. 3:22cv-00520, 2024 WL 196523 (D. Nev. Jan. 18, 2024)

(high school volleyball coach’s overt hostility towards

and ostracization of a student-player in retaliation for

her parents raising concerns to administrators about

the coach insufficiently adverse); Moore v. Shelby

County, No. 3:16-cv-00013, 369 F. Supp. 3d 802 (E.D.

Ky. 2019) (finding that requiring the plaintiff to make

special appointments to view public records in violation of the state’s open records act, destroying those

records before they could be viewed, and prohibiting

the plaintiff from volunteering at the county animal

shelter were insufficiently adverse retaliatory acts);

Roth v. Sloan, No. 1:08-cv-1656, 2011 WL 1627932

(N.D. Ohio Apr. 29, 2011) (finding that, in retaliation

for a lawsuit filed against him, a police officer’s attempts to publicly shame and disgrace the plaintiff by

making him out to be a sex offender after the plaintiff

had been acquitted of such conduct by a jury insufficiently adverse); Matherne v. Larpenter, 54 F. Supp.

2d 684 (E.D. La. 1999) (finding that a sheriff’s malicious issuance of a criminal summons without probable cause and defamatory statements made to the

press were insufficient to sustain a First Amendment

retaliation claim).

This Court should use this case as an opportunity

to reaffirm its longstanding, simple standard for First

Amendment retaliation claims: Government officials

may not wield their authority to retaliate against protected speech. Period. There is no sort of implicit

amount-in-controversy requirement, either in the

First Amendment or in Section 1983, to bar claims for

retaliation that is supposedly not adverse enough.

The Court should take this case and reverse in an

opinion that disavows the circuits’ not-adverseenough rules—not just for public employees, but for

all Americans.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

March 9, 2026