Washington, DC — If your government employer threatens to cut your pay or harm your career if you don’t stop expressing your opinion on matters of public concern, is that a potential violation of your First Amendment rights?

In the overwhelming majority of federal courts across the country, the answer is a resounding “yes.”

Unfortunately, if you work in Texas, Louisiana, or Mississippi, you’re out of luck. In these states, your public-sector employer can chill your speech through threats and intimidation—as long as the employer never follows through by actually firing you or issuing a formal reprimand.

That’s why the Institute for Free Speech filed a petition in Lowery v. Mills, et al., urging the Supreme Court to resolve this critical split of opinion among the courts affecting First Amendment protections for public employees.

The case involves University of Texas Professor Richard Lowery, who was told by university officials to stop publicly criticizing UT’s administration, DEI programs, and funding decisions—or face reduced pay, loss of a lucrative research post, and other consequences. Rather than risk those outcomes, Professor Lowery self-censored, stopped tweeting, and ceased writing op-eds critical of the university.

Both the district court and the U.S. Court of Appeals for the Fifth Circuit acknowledged that UT’s threats would deter “a person of ordinary firmness” from speaking. Yet both courts dismissed Professor Lowery’s First Amendment retaliation claim because the university never followed through on its threats with a formal reprimand, pay reduction, or actual punishment.

That reasoning puts the Fifth Circuit at odds with ten other federal circuits nationwide. While the Fifth Circuit (joined only sometimes by the Eleventh Circuit) requires completed adverse employment actions—such as terminations, demotions, or official reprimands—before an employee can bring a First Amendment claim, the overwhelming majority of circuits apply a common-sense test: would the employer’s conduct deter a reasonable employee from speaking on matters of public importance?

The Institute’s cert petition highlights the harm created by the Fifth Circuit’s standard. “In the Fifth Circuit, public employers can legally retaliate against whistleblowing employees simply by engaging in adverse actions that fall short of an official reprimand, demotion, termination, transfer, or failure to promote or hire.” As the Fifth Circuit’s own precedent acknowledges, “retaliatory threats are just hot air unless the public employer is willing to endure a lawsuit over a termination.”

This rule creates a perverse incentive for government employers: the more effective the employer’s threats, the less likely that the employer will face legal consequences. Public-sector employers who successfully silence an employee through intimidation and threats alone are safe from legal liability under the Fifth Circuit’s dangerous standard.

The petition further argues that this double standard makes no sense when compared to statutory protections. The Supreme Court has held that retaliation claims under federal nondiscrimination law require only that “a reasonable employee would have found the challenged action materially adverse”—meaning it might have “dissuaded a reasonable worker” from exercising his or her rights. Yet, in the Fifth Circuit, fundamental First Amendment rights receive less protection than employment rights created by federal statutes.

Professor Lowery’s experience illustrates the real-world consequences. University officials pressured him by threatening his $20,000 annual position at UT’s Salem Center for Public Policy, knowing that affiliation was subject to discretionary annual renewal. When Lowery responded by self-censoring, his affiliation was renewed and his annual salary increase approved. The system worked exactly as the university intended—without ever needing to implement the threatened punishment.

“Public employees often gain inside knowledge of matters of public concern through their employment,” added Institute for Free Speech Senior Attorney Del Kolde, the lead litigator in the matter. “Their speech holds special value in a free society. Yet the Fifth Circuit’s standard leaves these employees vulnerable to employer threats designed to keep them from speaking.”

To read the Institute for Free Speech’s cert petition in Lowery v. Mills, et al., click here. To read more about the case and to access all filings, please see our case page here.

About the Institute for Free Speech

The Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment.