Answering Your Student Speech Questions

NEW ORLEANS – The Fifth Circuit ruled today in Ford v. Mckesson that a lower court erred in finding that prominent civil rights activist Deray Mckesson cannot be held liable for unlawful conduct of other people attending the protest he was at in 2016. The protest was held to celebrate the life of Alton Sterling, a Black resident who was shot and killed by two on-duty police officers. No jury has yet heard the case or determined if Mckesson is liable, but today’s decision opens the door for a trial to proceed. “This decision is disappointing not only for me personally, but for each and every person who cherishes the right to protest,” said DeRay Mckesson. “The purpose of this lawsuit was not just to silence me, but to make people afraid to show up to protests because they might get sued for someone else’s behavior. That is an affront to our First Amendment freedoms, and even after nearly ten years, I will not stop fighting this ludicrous suit in order to protect all of our rights to protest, organize, and imagine a world beyond policing.” The plaintiff, a former police officer, was hit by a rock-like object at the protest and argues that Mckesson, who was also present but did not throw the object, should be liable for the injury. In 2024, a lower court granted summary judgment to Mckesson and found that the plaintiff failed produce enough evidence to establish that Mckesson planned the protest or caused the officer’s injuries. “This decision is wrong on the facts and on the law,” said Vera Eidelman, senior staff attorney with the ACLU’s Speech, Privacy, and Technology Project. “Opening the door for a jury to hold our client liable for someone else’s behavior at a protest would make any person think twice before attending a protest. Allowing a trial to move forward on such a thin record seriously threatens our First Amendment rights to organize and attend protests without fear of burdensome litigation. This battle is not over, and we will continue to seek justice for our client and for protesters everywhere.” Since 2016, this case has been at the Fifth Circuit, the Louisiana Supreme Court, and the U.S. Supreme Court on the question of whether the theory at its center—that protest organizers can be liable for the unlawful acts of a third party at a protest not because they intended the illegality but because they “negligently organized” the protest such that the illegality was foreseeable—violates the First Amendment. After the Fifth Circuit accepted the theory, the Supreme Court declined to again hear Ford v. Mckesson in April 2024. Despite the Court’s denial of the cert petition, Justice Sonia Sotomayor wrote a statement emphasizing the Court’s 2023 decision in Counterman v. Colorado, which held that negligence can never be the proper standard when it comes to political speech and that intent is necessary for incitement, should govern “any future proceedings in this case.” The case then returned to district court, where Mckesson moved for and won summary judgment. Mckesson argued that the theory continues to violate the First Amendment and that, even if it is viable, Ford failed to meet his burden of proving the facts at the center of the case. Mckesson is represented by David Goldberg, counsel of record on Mckesson’s legal team and attorney with Donahue, Goldberg & Herzog; the American Civil Liberties Union; and the American Civil Liberties Union of Louisiana.

DENVER – The Tenth Circuit Court of Appeals heard arguments today in BERT v. Drummond, a major educational censorship case stemming from a 2021 law that has chilled classrooms across Oklahoma. Students and teachers argued that HB 1775, which prohibits instructors from “mak[ing] part of a course” eight prohibited concepts related to race and sex, is unconstitutionally vague and has caused a chilling effect for teachers. Similar laws and policies have popped up throughout the country at the state and local level, many of which have been found by district courts to be unconstitutional. BERT v. Drummond was the first federal case challenging such a law. “The law’s impossibly vague language, including a sentence with a triple negative, puts teachers in an impossible bind,” said Emerson Sykes, senior staff attorney with the American Civil Liberties Union’s Speech, Privacy, and Technology Project. “They can teach children about hard things in the world around them and risk losing their teaching licenses, or they can or self-censor and deprive students of important educational opportunities. This Court has the power to block the law and stop the chill.” In 2024, the federal court blocked the enforcement of two of the eight prohibited concepts that restrict K-12 instruction because they are vague, fail to let educators know what course material is prohibited, and could prevent discussions of a wide variety of ideas, including those that are the subject to current political debates. These provisions remain enjoined. The Oklahoma Supreme Court also clarified that the law does not apply to academic speech in higher education. “Today marks another step in the fight for Oklahoma K-12 teachers and students, who continue to face vague and confusing limits on their ability to speak and learn in the classroom,” said Megan Lambert, legal director for the ACLU of Oklahoma. “It is beyond time our students get back to having open and equitable dialogue about our country’s history — one that includes the experiences and viewpoints of people of color and other marginalized communities, without partisan and discriminatory restrictions. Our history as a state and country cannot be erased, and the ability to discuss and debate ideas, even those that some may find uncomfortable, is a crucial part of our democracy.” “We are asking the Tenth Circuit to finish the job,” said Maya Brodziak, senior counsel with Lawyers’ Committee for Civil Rights Under Law. “Students and teachers have suffered under the vagueness of this law for years, and countless Oklahoma children have been deprived of valuable opportunities to learn about themselves and the nation’s history. The First Amendment protects the freedom to learn.” Attorneys for the students and teachers further argue that HB 1775 violates students’ First Amendment rights to receive information and that the court should reject the government’s radical argument that class instruction is “government speech.” The suit was originally filed in 2021 by the ACLU, the ACLU of Oklahoma, Lawyers Committee, and McDermott, Will & Schulte LLP filed suit against HB 1775 on behalf of a broad group of public school teachers and students. For more information about the case, see here.

RICHMOND, Va. – Georgetown scholar Dr. Badar Khan Suri was at the Fourth Circuit Court of Appeals today asking the court to affirm previous lower court rulings that ordered the government to release him on bail. Exactly one year ago today, ICE grabbed Dr. Suri as he came home from an iftar celebration, put him on a plane, and then detained him for nearly six weeks at a private detention center in Texas known for its human rights abuses. To this day, the only justification for Dr. Suri’s arrest remains his advocacy in support of Palestinian rights and his family ties to Gaza. “When I came to America to study how governments descend into authoritarianism, I could never have expected to be living the very research I came here to do, and yet today marks exactly one year since I was brutally taken from my family and unjustly imprisoned by the U.S. government for voicing my opposition to Israel’s atrocities in Gaza,” said Dr. Badar Khan Suri. “I’m grateful to be standing here as a free man, but terrified that it could be taken away from me at any moment. I am asking the Fourth Circuit to affirm what every American schoolchild is taught, that in this country, you cannot be thrown in prison for speaking truth to power.” In its appeal, the administration took a narrow view of the courts’ habeas jurisdiction, arguing that because it quickly swept Dr. Suri out of Virginia without notice to his family or lawyers, the Virginia court does not have jurisdiction to hear his petition, and that it should be handled by a court in Texas. It also argued that no federal district court has authority to review the constitutionality of Dr. Suri’s detention until the executive branch finishes its own administrative immigration process, which can take months or years. “The First Amendment protects all of us, regardless of our political opinions or associations – and we all deserve speedy protection from the courts when that right is infringed upon. When the government ignores those rights to go after a peace studies scholar, we’re all in danger,” said Noor Zafar, senior staff attorney with the ACLU’s Immigrants’ Rights Project. “The government's attempt to weaponize immigration law to silence dissent and take away someone’s liberty is unconstitutional and should worry every person in this country. We won’t stop fighting to keep Dr. Suri free, and home with his wife and children where he belongs.” In court, Dr. Suri’s legal team explained that the federal court in Virginia has jurisdiction over Dr. Suri’s habeas petition, and he must remain free while his case is considered. “Courts have always been an important check on unlawful government attempts to silence and retaliate against people for their speech, and Dr. Suri’s case should be no different. The Trump administration is trying to silence speech it doesn’t agree with by targeting people like Dr. Suri and Mahmoud Khalil, but ideas are not illegal,” said Geri Greenspan, senior staff attorney with ACLU of Virginia. “Americans don't want to live in a country where the federal government can lock people up just because it doesn't like their views.” Dr. Suri is challenging his arrest and detention under the First Amendment, the Due Process Clause of the Fifth Amendment, and the Administrative Procedure Act. He is represented by the American Civil Liberties Union, the ACLU of Virginia, the Center for Constitutional Rights, and Van Der Hout LLP.

The ACLU is in court this week with Dr. Badar Khan Suri fighting the Trump administration’s unconstitutional attempt to re-detain him for exercising his First Amendment rights.