Cases & Developments

Opinion reversing the judgment of the Tenth Circuit.  Lorie Smith offers website and graphic design and related services through her business 303 Creative LLC, of which she is the sole member-owner.  When she decided to expand her business to offer websites celebrating weddings, she sued seeking injunction to prevent Colorado from requiring her under the Colorado Anti-Discrimination Act (CADA) to produce websites to celebrate same-sex marriages, which she asserted would contradict her sincerely held religious convictions.  The district court denied the injunction, and the Tenth Circuit affirmed.  In reversing, the Supreme Court held that the First Amendment prohibits Colorado from “seek[ing] to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance.”  

Opinion and Order and vacating the judgment of the Colorado Court of Appeals and remanding.  Billy Raymond Counterman was convicted of stalking leading to serious emotional distress and sentenced to four-and-a-half years in prison related to numerous social media messages he sent to a musician whom he had never met.  Counterman, who suffers from mental illness and believed he was having a conversation with the musician. contended that his messages were not true threats and were, accordingly, protected by the First Amendment.  The Colorado Court of Appeals affirmed his conviction, noting that Colorado used an objective standard that looks to whether the recipient would reasonably perceive the statements as expressing an intent to commit an unlawful act of violence.  In vacating and remanding, the Supreme Court adopted a recklessness standard, holding that “[t]he State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”  

Opinion affirming dismissal.  Plaintiff, a journalist and filmmaker, brought First and Fourteenth Amendment claims under §1983 against multiple officials of Georgia Southern University after the University declined to hire her as a keynote speaker for a conference due to plaintiff’s refusal to sign a clause required by state law promising not to participate in boycotts of Israel.  In affirming dismissal, the Eleventh Circuit found that plaintiff failed to show that including the anti-boycott clause in the contract was a clearly established constitutional violation. 

Opinion affirming denial of a preliminary injunction. Plaintiff, Speech First, a national free speech watchdog group, sued Virginia
Tech and sought a preliminary injunction, alleging that Virginia Tech’s Bias Intervention and Response Team (BIRT) Policy (Bias Policy) and Informational Activities Policy violate the First Amendment. In affirming denial
of an injunction related to the University’s Bias Policy, the Fourth Circuit first held that Speech First failed to show injury in fact, noting that the BIRT lacks the authority to punish students, and its process is not “so
burdensome that an objectively reasonable student would self-censor to avoid encountering it.” Instead, it found that through its Bias Policy, the University permissibly “devised a way to educate its student body about
both protected speech and the role of tolerance in the campus community.” Turning to the University’s Informational Activities Policy, which required students to use a content-neutral administrative process to reserve
space before distributing literature or petitioning, the court similarly affirmed that the record was too incomplete to show that the challenged policy amounted to anything other than a reasonable time, place, and manner restriction.