Lowery v. Mills

In Lowery v. Mills, the Institute for Justice submitted an amicus brief urging the Supreme Court to take up a First Amendment retaliation case and to disavow the lower courts’ rules that dismiss cases they don’t consider to be important enough. The petitioner is a professor who alleges he was threatened with a lowery salary and fewer resources for research unless he stopped criticizing his public university on issues such as critical race theory, affirmative action, and academic freedom. The Fifth Circuit acknowledged that the threats had in fact chilled his speech, but nevertheless held that the professor couldn’t bring a claim of First Amendment retaliation unless the university took some further step, like firing him. IJ filed an amicus brief urging the Supreme Court to grant review, emphasizing that this case reflects a much bigger problem that sweeps well beyond public employees in the Fifth Circuit. Rather, the circuit courts uniformly have rules to dismiss First Amendment retaliation claims if judges don’t consider the government retaliation to be sufficiently adverse. IJ’s brief argues that these not-adverse-enough rules have no grounding in the Constitution, the Supreme Court’s precedents, or Congress’s statutory grants of judicial authority to vindicate constitutional rights. And they have real costs for private victims of government retaliation by shielding officials from accountability if lower-court judges consider the cases just not important enough.