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.

The post Two Free Speech/Gender Identity/Sexual Orientation Cert. Petitions that the Court Will Consider Friday appeared first on Reason.com.