NEW YORK — The Center for American Liberty joined an amicus brief urging the U.S. Court of Appeals for the Second Circuit to allow a First Amendment challenge to New York state guidance regulating speech at public school board meetings to proceed.
The brief, filed in Wachter v. James, supports two elected school board members challenging guidance issued by New York Attorney General Letitia James and state education officials. The guidance addresses speech concerning gender identity—including access to restrooms, locker rooms, and athletics, as well as pronoun use—and warns that school board members may face removal from office for failing to conform their speech to comply with the state’s message.
The district court dismissed the case for lack of standing, finding that the board members had not shown a sufficiently credible threat that the guidance would be enforced against them.
CAL and its fellow amici argue that the district court set the bar for a pre-enforcement First Amendment challenge too high.
Government officials should not be able to shield threats to protected speech from judicial review simply by labeling them “guidance.” What matters is the substance and context of the government’s actions.
Here, the guidance was issued by officials with enforcement authority, identifies speech the officials consider impermissible, discusses removal from office, and directs members of the public to avenues for filing complaints.
The brief argues that speakers should not have to wait until the government brings an enforcement proceeding before challenging a directive that credibly threatens their First Amendment rights.
As the brief explains: “Friendly advice is not a threat adequate for pre-enforcement standing. But the sword of a government directive, backed by a veiled threat of enforcement, is … still a sword.”
CAL and its fellow amici are asking the Second Circuit to reverse the dismissal and allow the constitutional challenge to proceed.
Read the Amicus Brief.