Americans have long voiced their displeasure with their government. The Declaration of Independence itself is a list of grievances between Americans and the British government. And Americans have not always indulged in the elevated prose of the Declaration. Government officials have long endured "vehement, caustic, and sometimes unpleasantly sharp attacks."

Today is no different. Plaintiff David Streever expressed his displeasure with the United States Immigration and Customs Enforcement ("ICE") by sending a three-paragraph email to the agency's Acting Director, Defendant Todd Lyons. Mr. Streever compared Acting Director Lyons to an infamous Nazi and predicted that he would become "a sad, despised man who eats himself alive with shame at [his] own pathetic weakness."

What is different is how the government responded in this case. ICE dispatched agents to Mr. Streever's home and delivered to him a "WARNING NOTICE." The notice threatened him with prosecution if he did not "discontinue" his criticism of ICE. Because that notice likely violates Mr. Streever's First Amendment right to free speech, the Court will grant, in part, Mr. Streever's motion for preliminary injunction, enjoining Defendants from relying on the Warning Notice, issuing similar threats, or making good on the threats in the Warning Notice…..

Mr. Streever was outraged by the deaths of two Minnesotans, both of whom were shot by ICE officers in January 2026. To register his anger, Mr. Streever sent ICE's Acting Director, Todd Lyons, a three-paragraph email titled "What's next." The email read as follows:

You are a monstrous human being and will go down in history as America's Reinhard Heydrich, the butcher.

The way you are protecting the obvious execution in Minnesota, even as we see the videos, will lead to your downfall. Even Trump will turn on you before the end, and you will be a sad, despised man who eats himself alive with shame at your own pathetic weakness.

You will never know peace. You will seek to lose yourself, to escape the burden of knowing the truth about yourself. But wherever you go, you will find yourself. You will torment yourself until your last day on Earth.

Mr. Streever's January 26, 2026, email came during an uptick in threats to ICE officers. According to the Assistant Director of the Office of Professional Responsibility ("OPR") Investigations within ICE, Brent Goodwin, "ICE has experienced a 946% increase in threats against ICE officials" between fiscal years 2024 and 2025. "In [fiscal year] 2025, ICE OPR investigated approximately 66 potential threats against senior leaders."

At some point after ICE received Mr. Streever's email, it "was forwarded to OPR because it was determined that the email had potential threatening undertones to ICE personnel, potentially presenting a safety concern." Because "ICE OPR did not have any information about Mr. Streever … OPR determined that it needed to conduct an ICE investigation." … As part of their investigation, now five months after Mr. Streever sent his email, Agents Henry and Brodie traveled to Mr. Streever's home in Rochester, New York, to speak with him. But Mr. Streever was not home. He was off traveling in Europe. So the agents spoke with Rev. Hilary Streever, Mr. Streever's wife. They told her that Mr. Streever "'may or may not have' sent an email to Todd Lyons, threatening Lyons" and that they "needed to talk to [Mr.] Streever."

The agents then handed Ms. Streever a "WARNING NOTICE." The notice stated at the top: "YOU MAY BE IN VIOLATION OF FEDERAL LAW." It then explained:

U.S. Immigration and Customs Enforcement (ICE), Office of Professional Responsibility (OPR) is responsible for protecting ICE, its employees, and its facilities against internal and external threats. OPR is responsible for enforcing crimes against the United States as authorized under Title 19 of the U.S. Code and as designated by the Secretary of Homeland Security, including criminal investigations into threats made against ICE personnel. OPR has identified an email sent to Acting ICE Director Todd Lyons, which it has reason to believe may constitute a violation of Title 18 of the U.S. Code. Accordingly, OPR is requesting that you promptly remove and/or discontinue the aforementioned behavior.

This Notice officially informs you that it is unlawful to threaten to assault, kidnap, and/or murder a federal official or that federal official's immediate family member with the intent to impede, intimidate, and/or interfere with the federal official's duties or retaliate against a federal official due to the performance of their duties. 18 U.S.C. § 115(a). You are further advised that knowingly making restricted personal information about a covered person, or their immediate family member, publicly available with the intent to threaten, intimidate, or incite the commission of a crime of violence against the person; or with the intent and knowledge that the restricted personal information will be used to threaten, or intimidate, or facilitate the commission of a crime of violence against that person violates federal law. 18 U.S.C. § 119. Violations of these or related laws could subject you to both federal and state prosecution.

OPR has documented the delivery of this Notice to you. Receipt of this Notice will be taken into consideration, should you continue to be involved in any criminal activities described above. If you wish to discuss this Notice and its contents further, please contact the undersigned Special Agent who served you with this Warning Notice or the local OPR field office….

At the end of the month, Agent Henry "wrote a report of investigation to serve as a closing report summarizing the investigation." "With its investigation closed," OPR represents that it "does not contemplate any further investigation into Mr. Streever regarding his January 2026 email to Lyons."

But no one told Mr. Streever that the investigation was closed. Assuming he was still under investigation, Mr. Streever sued Defendants on July 6, 2026. The organization representing Mr. Streever then posted on social media touting Mr. Streever's lawsuit. A DHS social-media account responded, explaining that "ICE investigates all credible threats towards its employees and officers, including threats to the ICE Director. As a matter of policy, we do not comment on any ongoing investigations." The post closed by emphasizing that "ANYONE who assaults or threatens our law enforcement officers will face the consequences." A DHS spokesperson gave the same answer to a reporter for National Public Radio, although without the threat of future consequences….

The court concluded that plaintiff had standing to challenge the Warning Notice, which "provides a continuing injury over which Mr. Streever has standing to sue," and concluded the Warning Notice likely violated the First Amendment:

Defendants wisely do not contest that Mr. Streever's January email constitutes protected expression or that similar speech would be protected. Mr. Streever's email addressed salient political decisions to a government official, an arena where the First Amendment's speech protections reach their "zenith."

More importantly, the email does not contain a physical threat. The email registered displeasure with Acting Director Lyons's official conduct, forecasted that the Acting Director will lose favor with the President, and warned that the moral weight of the Acting Director's actions will haunt him in the future. Although Mr. Streever's email was not kind, and may not have been particularly productive, it was a far cry from a "[t]rue threat[ ] of violence" sufficient for the email to shed its First Amendment protections….

Defendants maintain[, however,] that a mere investigation is not coercive…. [But] Agents Henry and Brodie went beyond mere investigation—especially when they issued the Warning Notice. When distinguishing "between permissible attempts to persuade and impermissible attempts to coerce," courts must consider whether the conduct, "viewed in context, could be reasonably understood to convey a threat of adverse government action." NRA v. Vullo. Some useful indicia include the government's tone, whether the government could take action against the plaintiff, the perception of a threat, and whether the government references adverse consequences.

Applying this standard, Mr. Streever is likely to succeed in showing that Defendants engaged in coercion, rather than persuasion. OPR did not ask kindly if Mr. Streever would tone down his rhetoric. It dispatched two agents to his home for an unannounced visit where they delivered a "WARNING NOTICE." Although that notice "request[ed]" that Mr. Streever "discontinue" his political expression, it characterized that political expression as potentially violating federal law which "could subject [him] to both federal and state prosecution." The notice practically shouts that Mr. Streever may be prosecuted if he continues to engage in his political speech. Even if Defendants' benign explanation of the notice were plausible, Mr. Streever "reasonably understood [the notice] to convey a threat of adverse government action," namely prosecution….

[T]he Court finally determines nothing in this decision, and it does not award Mr. Streever, even preliminarily, all the relief he seeks. The Court merely orders the temporary vacatur of the Warning Notice and preliminarily enjoins Defendants from issuing similar threats to Mr. Streever or from making good on the threats in the Warning Notice while the case continues. Failure to do so would allow the censorship of Mr. Streever to endure during the case, something this Court would be largely unable to remedy afterward and which would undermine Mr. Streever's position while the case proceeds.

In fact, allowing the continued censorship of Mr. Streever during these proceedings could be tantamount to defeat for Mr. Streever depending on how long final resolution takes because Mr. Streever alleges a desire to speak out about a political issue that is particularly salient now but might not be as critical a year or two in the future. Moreover, the immediate interim period may be of particular importance to Mr. Streever because the speech he seeks to engage in is political, and there is an upcoming federal election just a couple of months away. Thus, even under the Third Circuit's understanding, a narrow preliminary injunction is appropriate here to stave off censorship during the election cycle and while the issue on which Mr. Streever wishes to speak is most salient…..

The Court is unsure whether it could grant Mr. Streever an injunction covering all future investigations into his protected speech. Generally, courts enjoin a particular investigative demand, rather than enjoining an investigation itself….

For one thing, Defendants argue that they have a legitimate interest in investigating even threats that do not rise to the level of a prosecutable offense as due diligence to ensure that no future criminal act will occur, even if they do not intend to charge the speaker with a criminal threat. Moreover, law enforcement officers—like the rest of us—are generally free to approach a home, knock on the door, and briefly wait for a response, as Agents Henry and Brodie did, regardless of whether they are investigating a crime. Homeowners are likewise free to refuse to speak with law enforcement.

Because the Court is unsure whether it is appropriate to preliminarily enjoin a swath of potential future investigations, the Court declines to do so here…. The Court will therefore focus its injunction on the Warning Notice and the January email. The Court will, for the time being, vacate the Warning Notice; it will preliminarily enjoin Defendants from relying on the Warning Notice and Mr. Streever's January email in future prosecutions and investigative demands; and it will preliminarily enjoin Defendants from issuing similar warnings to Mr. Streever that suggest he cannot engage in non-threatening criticism of the government….

Adam Steinbaugh, Hannah Abbott, Jeffrey Daniel Zeman, and JT Morris (Foundation for Individual Rights and Expression) represent plaintiff.

The post Warning Notice to Man Who Sent Critical E-Mail to ICE Acting Director Likely Violated First Amendment appeared first on Reason Magazine.

Years of investigations by the Minnesota Board of Medical Practice caused Dr. Scott Jensen to speak less and spend more. Either would be enough for a court to hear his case, so we reverse….

Like the rest of the country, the COVID-19 pandemic divided Minnesotans. Some public officials, including Governor Tim Walz, pushed for aggressive measures to "stop the spread" of the virus. Others like Dr. Scott Jensen, then a state senator, had a different view. He opposed vaccine mandates and believed it was a mistake to close businesses and schools. He ran on that message as the Republican nominee for governor in the 2022 election.

Not everyone liked what he had to say. So much so that, from the pandemic's start until mid-2022, the Minnesota Board of Medical Practice received 18 complaints about him. The objection was almost always the same: Dr. Jensen was "spreading misinformation" and posed a "danger to public health." … [T]he 18 complaints led to four investigations. At the start of each one, the Board sent him a letter detailing the allegations. Two asked him to "respond[ ] in writing[ ]" and reminded him that, "as a licensee of the Board," he was "required to cooperate fully." When he replied to those, he provided the Board with hundreds of pages of information, including news stories about the pandemic, medical studies, and patient records.

One, which lasted more than a year, took on a life of its own. Like the others, it began with a letter informing him that the Board was investigating an allegation that he had "politiciz[ed] public health." He cooperated, but the Board waited until after the election to request an "in-person conference." The notice listed multiple possible violations, including "unethical or improper conduct" and "depart[ing] from or fail[ing] to conform to the minimal standards of acceptable and prevailing medical practice."

The subject line underscored the high stakes involved: "In the Matter of the Medical License of Scott M. Jensen, M.D." He hired a lawyer and spent countless hours preparing. After the conference ended, so did the investigation.

Jensen sued, claiming the investigations violated the First Amendment, and the court held that he had standing to raise this claim (even though he was challenging just the investigations, and not any actually implemented disciplinary measures):

Grounded in the case-or-controversy requirement of Article III, standing ensures that the person suing—here, Dr. Jensen—has the "personal stake" necessary for a federal court to intervene. Satisfying it requires "(1) an injury in fact; (2) a causal connection between the injury and the challenged [action]; and (3) a likelihood of redressability." …

At the motion-to-dismiss stage, "we [must] assume the allegations in the complaint are true and view them in the light most favorable to [Dr. Jensen]." Even "general factual allegations of injury resulting from the defendant's conduct" are enough because "we presum[e] that [they] embrace those specific facts that are necessary to support the claim." They can—and often do—lead to plausible inferences that satisfy all three standing requirements.

We have little doubt that Dr. Jensen's complaint clears these hurdles when it comes to causation and redressability. At a minimum, the alleged "ever-present threat of further investigation," backed by a list of past investigations, adequately connects his chilled speech and time and money spent responding to what the Board did. Money damages would redress those injuries. And to the extent these past investigations affect his present and future willingness to speak, an injunction would remedy it.

The real battle is over whether Dr. Jensen alleged a sufficiently "concrete and particularized" injury….

A "pocketbook" harm is a "classic" Article III injury. In general, monetary harm is an injury precisely because it is both concrete and particularized. Concreteness comes from the fact that it is "real" and "actually exist[s]." And it is "particularized" because it affected Dr. Jensen "in a personal and individual way." Once the Board opened the investigations, he had an obligation to "cooperate fully," including "fully and promptly" answering any questions and "providing copies of patient medical records."

Even a minor expenditure of "time and resources" counts as an injury. Here, according to the amended complaint, Dr. Jensen did more, far more. For the first few investigations, he was "forced to spend hours of his time" responding. But for the last one, which went on for more than a year, he spent countless hours working on his responses, including compiling documents and eventually hiring a lawyer. These steps, arising out of his [statutory] obligation to "cooperate fully," led to out-of-pocket expenses and resulted in "lost revenue because he took on fewer patients." Regardless of whether the Board thinks Dr. Jensen should have taken those actions, they are "classic pocketbook injur[ies]."

{The "pocketbook injury" supports his claim for damages under both the First and Fourteenth Amendments. Arguably so does the time he lost "communicating with voters on the campaign trail" during the 2022 election. But given the other particularized and concrete injuries he suffered, there is no need to decide whether the harm to his campaign adds another.} …

According to the amended complaint, the investigations also caused Dr. Jensen to change his "message to … constituents" and "decline invitations to public[-]speaking events." These general allegations are enough to create a plausible inference that his speech was chilled, something he allegedly told the Board in 2020, shortly after the first investigation began. As we have explained, "one type of injury that confers Article III standing" in First Amendment cases is "when a plaintiff is chilled from exercising h[is] right to free expression." It happens when a "government official's conduct would cause a person of ordinary firmness to self-censor." Exactly the situation we have here….

In addition to general allegations that he changed his message and declined multiple invitations, the amended complaint mentioned that he "took great care to make certain that people understood when he was speaking as a candidate and when he was speaking as a family doctor," something none of his opponents had to do. In the face of professional sanctions, Dr. Jensen believed the risk of speaking "candidly and honestly" about "COVID-19 vaccines and other government interventions in personal-health care decisions" presented too great a risk.

A reasonable person in his position would have reacted the same way. After a steady stream of letters from the Board, anyone in Dr. Jensen's shoes would have been concerned about a looming and "credible threat of enforcement." In fact, it would have been unreasonable to ignore the threat given the consequences, which included the potential loss of his medical license.

It makes no difference that Dr. Jensen "tailored his message" rather than abandoned it. After all, changing the "when, where, and how" of speech is an injury. A chilling effect may not be as tangible as a pocketbook injury, but it is still a "concrete and particularized" harm….

The chilling effect he continues to experience also qualifies as an "ongoing" injury supporting injunctive relief. Again a candidate for public office, Dr. Jensen continues to be "active in the media" and interact with "members of the public" with the goal of educating them about how current officeholders mismanaged the pandemic. In other words, he is in the same position as before, seeking to engage in "substantially similar activity" without having to worry about potentially losing his medical license.

It is hard to imagine a situation in which the "threat of future enforcement" could be more credible. After 18 complaints and four investigations, pretty "good evidence" of "past enforcement against the same conduct," the threat against Dr. Jensen is far from "chimerical." And the fact that anyone can file a complaint turns him into an "easy target[ ]" for "political opponents." …

The court sent the case back down to the district court to consider the merits: "[O]ur usual approach in these circumstances is to let the district court have the first crack at them."

Nicholas James Nelson, Douglas Seaton, and James Dickey represent plaintiffs.

The post Doctor/Political Candidate Has Standing to Sue Over Medical Board Investigations Related to His Public Comments about the COVID Pandemic appeared first on Reason Magazine.

In 1909, Urban Walter, a 28-year-old mail clerk, founded a small magazine with large ambitions. According to its masthead, the Harpoon was "a magazine that hurts." It was founded in pursuit of one goal: to oppose the Post Office Department's imposition of a "gag order" on any discussion of the train wrecks that killed scores of railway mail clerks annually and maimed many hundreds more. These gag orders, first promulgated by the Postmaster General in the late 19th century and later expanded by executive orders issued by Theodore Roosevelt and William Taft, prohibited civil servants from petitioning or giving information to Congress, or advocating for improved pay or working conditions except through their departmental head. The Harpoon defied the order, promising to give the "fullest publicity" the dangerous conditions—both physical and organizational—of the work.

Walter was frequently ill with respiratory issues, exacerbated by moldy mailbags and the dusty, lamplit conditions on the mail car. To explain why he spent his precious "lay-off" time in a small print shop in Phoenix, Arizona, Walter invoked the highest of constitutional ideals. "No public official is great enough to take away the guaranteed rights of American citizenship," Walter explained. "The very constitutional rights" of "lesser public servants" were abrogated by an order that, under penalty of swift removal, prohibited a clerk from discussing his working conditions publicly and from complaining to Congress. Under what Walter saw as the pretext of maintaining "efficiency of service," postal officials had robbed 15,000 railway postal workers of their right to speech and right to petition the government. In so doing, officials had also undermined the public good by keeping Americans ignorant of the conditions under which their mail was delivered.

Urban Walter and the railway postal clerks who read and wrote for the Harpoon understood their fight for speech rights not in individualistic and expressive terms, but as a precondition for public accountability. Because of the transient, hidden nature of railway postal work, disclosure of the clerks' working conditions was the public's window into a job that also bore upon public safety. In 1909 alone, 27 railway mail workers were killed, 98 "seriously injured," and 617 "slightly injured"—the highest number of deaths on record. Under Walter's framing, the disclosure of dangerous working conditions implicated the "public good," and not just the narrow interests of an individual worker.

At the same time, Walter and other railway postal workers saw these gag orders not as a blunt instrument of "efficiency," but as an explicitly anti-union tactic designed to forestall the organization of an effective railway postal workers organization. Walter and other postal clerks fought to affiliate with the American Federation of Labor (AFL) through a breakaway faction of the Department-dominated Railway Mail Association (RMA). Many of those clerks were fired—dismissed for the "good of the service," or because of their "pernicious activity." Walter was one such worker. He sent Postmaster General Frank Hitchcock "an advance copy" of Harpoon's first issue, instructing the economy-minded Taft appointee to "carefully peruse" the enclosure. In response, the Department's informed him that his (untendered) resignation had been accepted. A clerk sent Walter a dead rat that he had found inside the drinking water of his car. A photo of the rat appeared in the Harpoon. The clerk was also fired. Other supporters of the magazine were threatened with dismissal—which intensified the newspaper's support, producing a culture of insubordination in defiance of executive orders and in support of public employee speech.

A fired worker is dangerous, a fired worker with access to a printing press doubly so. No longer facing a gag, Walter devoted himself full-time to the job of gadfly publisher and labor advocate. Less than three years after the Harpoon's founding, Walter himself appeared before Congress, urging the passage of a single bill that would repeal the gag orders and protect the organizing rights of postal workers—speech goals that were to be linked legislatively as they had been in Walter's protest. In his testimony, Walter accused the Postmaster General of "misinforming the committee" outright on the age and safety of mail cars. Because clerks were prohibited from disclosing information to Congress, legislators remained ignorant. The committee was thus forced to confront its own powerlessness in the face of executive branch orders. As Samuel Gompers, the president of the AFL, was quick to observe, a decade of executive orders prohibiting federal employees from disclosing information to Congress "may just as well have been an inhibition to the Members of Congress … to ask for this information."

With the institutional prerogatives of Congress and the material interests of organized labor aligned, the Lloyd-La Follette Act became law in 1912. The Act had four discrete provisions: "no person in the classified service of the United States shall be removed therefrom except for such cause as will promote the efficiency of said service"; a requirement that a fired civil servant be furnished with written charges and an opportunity for responding to them; protection against removal or retaliation for postal employees who belonged to societies, associations, or unions—so long as the organization imposed no "duty to strike"; finally, the Act affirmed civil servants' right to petition Congress "either individually or collective" and to "furnish information to either House of Congress, or to a committee or Member thereof." This latter provision constituted the first statutory protection for whistleblowers, later expanded by the Civil Service Reform Act of 1978 and the Whistleblower Protection Act of 1989.

But taken together, the Act's provisions reflected organized labor's view of the value of speech, Congressional oversight, and government service. While not requiring the examination of witnesses or a trial-type hearing, the Act still afforded new tenure protections for hundreds of thousands of government employees, moving government employment firmly away from an at-will model. Though paltry in comparison to later procedural safeguards, the requirement that government employees be provided with reasons for their dismissal and an opportunity to contest those reasons nonetheless reflected both a skeptical view toward the state and an adversarial view toward management. This due-process culture that defined private sector organizational governance in the second half of the 20th century was first imagined, in thin form, by civil servants and their labor advocates. And, of course, the affirmation of the right of postal employees to unionize—also subtly suggested by the right to petition Congress collectively—is testament to labor's vision of public employee speech. In the early 20th century, a person may have possessed no constitutional right to be a postal worker, to paraphrase Oliver Wendell Holmes. But once he became one, Congress created a modest protection for him to air his dissatisfactions—and to belong to worker organizations that incubated and emboldened complaint.

The purpose of this essay is twofold: I seek to contextualize the passage of the Lloyd-La Follette Act, a curiously understudied piece of legislation. In so doing, I situate the Act within the history of the civil service and the development of an increasingly powerful presidency. Secondly, I highlight the labor origins of whistleblowing. The AFL was an early opponent of the gag orders that silenced civil servants. It was responsible for drafting the Act itself, and even approved its only substantial amendment—a prohibition on membership in unions that required a strike. Institutionally, it was a beneficiary of the law, as tens of thousands of postal workers joined unions affiliated with the AFL in the latter half of the 1910s. The labor history of the Act has been obscured by its modern-day admirers, who view it primarily as an embodiment of the separation of powers. Understanding this earlier history of struggle for speech in the federal workforce can help scholars and citizens appreciate the role that labor organizations have played in safeguarding core democratic values like transparency and accountability.

Despite its significance to the history of the civil service and democratic accountability, the Lloyd-La Follette Act is surprisingly understudied by historians. Scholars of American political development who have studied the Act and its politics have understood it largely in terms of what it revealed about the relationship between Congress and the executive branch for control of the administrative state. Little attention has been paid to the underlying speech-related grievances of gagged civil servants. Part of this lacuna lies in the fact that labor historians, as a rule, have tended to focus on the private sector at the expense of the public—particularly in studies of the late 19th and early 20th centuries. But even a study of public sector unionism like Joseph Slater's Public Workers begins with a historiographical lament at the marginalization of public employees within labor history before moving swiftly to the Boston police strike of 1919. Attention to the history of labor agitation within the railway mail service reveals the centrality of public employee speech and petition rights to the overall political vision of the AFL at the turn of the century.

Legal historian Laura Weinrib has argued that the labor movement has played a neglected role in the development of civil liberties consciousness. Civil liberties, and especially the right to speech, were linked to a "right to agitation"—an economically redistributive vision that "sought to counter the consolidation of capital with organized power of their own." Weinrib's study, particularly her focus on the free speech commitments of the political left in the years before the First World War, has shaped my own. The quest for civil servant speech—a right that labor partisans framed as constitutional, rejecting any distinction between rights and privileges or public and private employment—was part and parcel of labor's vision of the First Amendment as a weapon of the weak against the powerful in the class war. By speaking and organizing without fear of reprisal, organized government employees could also enlist noncombatants into the fight, as Americans might also come to understand their own health, safety, or timely receipt of the mails as implicated by conditions within the railway mail service. This labor history of public employee speech sensitizes us to organized labor's role in envisioning, expressing, and safeguarding the public's right to hear information that bears on matters of public concern.

The ideas and language ultimately enshrined in the Lloyd-La Follette Act were developed in response to the constitutional interpretation implied by a decade of gag orders and directives from the Postmaster General. The railway mail service of the early 20th century sheds light on scholarly debates on "administrative constitutionalism," or the ways that agency officials implement and interpret constitutional rules and norms. The Post Office has long been recognized as a site where officials exercised broad authority over policies with constitutional dimensions—such as suppression of abolitionist literature and a "virtually unreviewable" discretion to censor "obscene" materials. Regulation of speech by postmasters and postal inspectors—in other words, administrative censorship—was pervasive well into the 20th century. Working conditions within the postal service—an instance of a bureaucracy's "internal rules," to use Mashaw's formulation—reveals the Postal Department's power in attempting to determine the meaning of speech rights in practice. With no input from courts, advocacy by railway mail clerks and their allies in the AFL also refashioned ideas about speech, due process, and separation of powers in the early 20th century.

The Lloyd-La Follette Act also represented a vindication of Congressional prerogative. The history of the gag orders issued under such self-consciously "strong" presidencies as Theodore Roosevelt and William Howard Taft illustrates the perils of presidentialism. Indeed, an important goal of the orders was to maintain "tranquility" in the government's relationship with railway companies by keeping the public ignorant. Civil service unions have furthered democratic accountability by protecting workers who transmit information to Congress. The twinned history of speech and labor rights suggests that a unionized civil service can serve as a check on presidential power. The flip side of this coin is that a diminution of labor rights and speech rights within the civil service redounds to the benefit of the executive at the expense of democracy.

I begin by sketching the relationship between civil service reform and organized labor in the late 19th century. Reform of the spoils system reshaped the postal service more than any other division of the federal bureaucracy, and by the late 19th century the Railway Mail Service (RMS) was the most important and prestigious branch within the postal system. It was also the most dangerous, spurring clerks to invigorate worker organizations and, eventually, to attempt to affiliate with the AFL. I then turn to the promulgation of agency and executive gag orders intended to suppress the dissemination of grievance, prevent disclosure of information to Congress, and, eventually, to thwart union organizing amongst the clerks. Next, I examine the organized response to the gag orders, as well as the Postal Department's weaponization of its bureaucracy to ferret out and fire dissident clerks—a move that backfired, resulting in still more unrest and publicity. Finally, I examine Congressional support for the speech rights of postal workers, which culminated in the passage of the Lloyd-La Follette Act, legislation that braided together the interests of railway mail clerks, organized labor, and Congress itself.

The post Journal of Free Speech Law: "Gags and Grievance: The Labor Origins of Whistleblowing," by Sarah Milov appeared first on Reason Magazine.

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From Judge James Lorenz's order yesterday in S.E. v. Grey (S.D. Cal.):

The school activity at issue occurred in the context of the buddy program, a weekly class pairing younger and older students. The buddy program is a mandatory part of the school curriculum. P.D. and S.E., both fifth graders, were each paired with a kindergartener. In this program, "students in the older classroom mentor students in the younger classroom."

Until the buddy class at issue, the buddy program involved art or garden projects, and any books read in the class were selected by the students. The school sent parents a weekly newsletter listing the books the students were reading each week. For the buddy class at issue, the book entitled My Shadow Is Pink was selected by the teachers and was not listed in the weekly newsletter.

My Shadow Is Pink is about a boy who liked to wear dresses and play with toys associated with girls. Because the boy thought he did not "fit in" with his family and peers, his shadow was pink rather than blue. The story involves a conflict between the boy and his father. The father eventually comes to accept his son's "pink shadow" not as a phase but as reflecting the boy's "inner-most self." Although the term "gender identity" does not appear in the book, the author describes it as a children's book on the subject of gender identity. Defendants admit that the book "does address gender identity."

In preparation for the buddy class, the teacher first read the book to P.D. and S.E.'s fifth grade class. The fifth graders then joined their kindergarten buddies, and the teacher showed a read-along video of the book to the fifth graders sitting next to their respective buddies. The video was followed by an "art activity" in which the teacher asked the kindergarteners to "pick a color that represents you," and instructed the fifth graders to trace their respective buddies' shadows on the ground with colored chalk.

Although the class did not involve an explicit discussion of gender identity, the fact that the book addressed this issue was not lost on the students. S.E. described the book as "about LGBTQ." P.D. described it as "about a boy who wanted to change his gender to be a girl."

Because choosing one's own gender identity is contrary to Plaintiffs' religious beliefs, they were uncomfortable with the buddy class. Moreover, as mentors, P.D. and S.E. did not wish to affirm the book's message to their buddies.

When S.E. and P.D. told their parents about the class, the parents inquired with Defendants why they did not receive notice and an opportunity to opt out, as they did when gender identity was covered in health instruction…. California Education Code Section 51240 … provides in pertinent part:

If any part of a school's instruction in health conflicts with the religious training and beliefs of a parent or guardian of a pupil, the pupil, upon written request of the parent or guardian, shall be excused from the part of the instruction that conflicts with the religious training and beliefs.

… Defendants responded that Plaintiffs had no right to opt out because the buddy class was not part of a "health unit." Furthermore, the teachers suggested that similar buddy activities would be provided in the future without notice and an opportunity to opt out.

S.E.'s and P.D.'s parents sued on their children's behalf. The court held that the program, which was "a mandatory part of the curriculum," likely violated the First Amendment rights of students who didn't want to participate:

The buddy program differs from regular classroom instruction in that the fifth graders mentor their kindergarten buddies. In addition, My Shadow Is Pink buddy class required fifth graders to trace their buddy's shadow on the ground in the buddy's chosen color. P.D. was therefore not merely a passive listener…. P.D.'s tracing of his buddy's shadow on the ground was an expressive act protected by the First Amendment….

In light of P.D.'s role in the class as his buddy's mentor, P.D.'s presence next to his buddy during the read-along video presentation and subsequent tracing of his buddy's shadow in the buddy's chosen color implicitly conveyed P.D.'s endorsement of the message that gender can be a matter of one's choice and subject to change—a message contrary to P.D.'s own beliefs and which he did not wish to convey to his buddy. P.D.'s required participation in the buddy class therefore directly and immediately affected P.D.'s freedom of speech.

"Mandating speech that a speaker would not otherwise make necessarily alters the content of the speech." Laws and regulations which alter content of speech in this manner are content based…. "Content-based regulations are 'presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.'"

California Education Code [sections] regarding instructional materials and social sciences instruction … require schools to include the study of the role played and contributions made to California and national development by members of historically marginalized groups, including lesbian, gay, bisexual, and transgender groups. California law also prohibits excluding educational materials due to covering the marginalized groups, mandates that these groups be accurately reflected in educational materials, and prohibits their adverse portrayal. Defendants argue that My Shadow Is Pink conformed to these requirements. Its inclusion in the buddy program was intended to stress the acceptance of those who are different and reduce the serious effects of discrimination against gender-diverse individuals.

Remedying the effects of past discrimination may serve as a compelling government interest in public education. Nevertheless, "[b]road prophylactic rules in the area of free expression are suspect[,]" and antidiscrimination laws "can sweep too broadly when deployed to compel speech." The First Amendment imposes limitations on the application of such laws, and "demands a more precise level of analysis than the high level of generality" offered by anti-discrimination laws.

The California Education Code provisions cited by Defendants and Defendants' reasons for introducing My Shadow Is Pink to the buddy program reflect an admirable purpose. However, they do not meet the requisite narrow tailoring to justify interference with students' freedom of speech. Laws intended to "eliminat[e] discrimination against LGBTQ individuals" and remedy the serious mental and emotional harm of discrimination are generally insufficient to meet strict scrutiny. Further, Defendants have not shown that compliance with Education Code requirements and legislative purpose cannot be accomplished in ways other than compelled speech. "In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views."

Based on the foregoing, Plaintiffs have met their burden to show that they are likely to prevail on the merits of their claim that Defendants violated P.D.'s rights under the Free Speech Clause of the First Amendment by requiring his participation in My Shadow Is Pink buddy class. In light of this finding, the Court need not review the likelihood of success on the merits of Plaintiffs' remaining claims….

The court therefore granted a preliminary injunction ordering that, as "to the Encinitas Union School District elementary school buddy program," "buddy program class activities and materials shall not cover gender identity topics covered in health instruction, unless Defendants provide parents with advance notice and an opportunity to opt out."

Plaintiffs are represented by Dean Robert Broyles (The National Center for Law & Policy), Kayla A. Toney, Nathan W. Kellum, and Tiffany D. Dunkin (First Liberty Institute), and Robert James Reynolds (Robert J Reynolds, APC).

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WHEREAS, Respondent acknowledged to the Court in his written response and oral argument that he used the generative artificial intelligence (AI) tool ChatGPT in the preparation of the brief in chief he filed with the Court;

WHEREAS, Respondent admitted to the Court that the brief in chief contained false testimony from wholly fabricated witnesses—Officer Michelle Amarillo, Officer Sanchez, Manal Al-Jibury, and Teresa Marquez; false testimony from Danny Stanton that he received threats, which he took seriously, from Defendant-Appellant; false testimony from Linda Stanton about the threats her husband received; false testimony from Mariah Chavez and Teresa Marquez (fabricated witness) regarding the shooter's clothing and appearance; and misrepresented legal authority in State v. Lopez, 2005-NMSC-018, 138 N.M. 9, 116 P.3d 80 and State v. Manus, 1979-NMSC-035, 93 N.M. 95, 597 P. 2d 280;

WHEREAS, Respondent admitted to the Court that he did not verify the factual claims and legal authority in his AI-generated brief before signing it and filing it with the Court, and that he did not inform his client of this failure or that the brief in chief contained multiple factual and legal misrepresentations;

{WHEREAS, this matter came on for consideration by the Court upon its own motion to show cause, whereupon the Court issued an order to show cause to Respondent, Defendant-Appellant's attorney Stephen D. Aarons, directing him to show cause in person before the Court on August 21, 2026, why he should not be held in contempt and referred to the Disciplinary Board for the factual and legal misrepresentations he made to the Court in his brief in chief, and response thereto;}

WHEREAS, Respondent also admitted to the Court that he did not inform his client of the order to show cause proceedings or provide his client with copies of the order to show cause pleadings;

WHEREAS, the Court having considered the response and oral argument presented, concludes that Respondent demonstrated a lack of remorse and a lack of concern for his client; …

Chief Justice Julie J. Vargas, Justice Michael E. Vigil, Justice C. Shannon Bacon, Justice David K. Thomson, and Justice Briana H. Zamora concurring;

NOW, THEREFORE, IT IS ORDERED that Respondent, STEPHEN D. AARONS, is found in DIRECT CONTEMPT OF COURT;

IT IS FURTHER ORDERED that this matter, with respect to Respondent, is hereby referred to the Disciplinary Board for further consideration;

IT IS FURTHER ORDERED that Respondent is barred from appearing before this Court, pending the outcome of the investigation and proceedings, if any, before the Disciplinary Board;

IT IS FURTHER ORDERED that, following the Disciplinary Board investigation and proceedings, if any, the Court will make further determinations regarding Respondent in accordance with the Rules Governing Discipline;

IT IS FURTHER ORDERED that the Law Office of the Public Defender is hereby appointed to represent Defendant-Appellant in this appeal and shall assign counsel to this matter who shall enter an appearance on behalf of Defendant-Appellant forthwith;

IT IS FURTHER ORDERED that all briefing filed in this matter is hereby STRICKEN;

IT IS FURTHER ORDERED that, following the entry of appearance of new defense counsel, a new briefing order shall be issued and the case will proceed with the intention that it will be heard during the Court's 2026-2027 term;

IT IS FURTHER ORDERED that as a sanction for direct contempt, Stephen D. Aarons shall, within thirty (30) days of the date of this order, pay a sum of five thousand dollars ($5,000) to the State Bar of New Mexico Client Protection Fund and shall notify the Court in writing when such payment is made ….

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