Amicus Brief: Lowery v. Mills

Richard Lowery is a professor at University of Texas at Austin's business school. He repeatedly criticized UT’s administration for its funding decisions, perceived political activism, DEI decisions, and hypocrisy. Prof. Lowery was told in no uncertain terms that he should stop speaking or face consequences, including threatening his position at the university's Salem Center for Public Policy. At one point, a university employee even asked the UT police to open up a threat investigation into Prof. Lowery's tweets. After many meetings and threats, Prof. Lowery decided to stop tweeting, writing op-eds, and speaking out in other ways. 

The question in this case is whether threats are enough to create a free speech retaliation claim. The Fifth Circuit differs from ten other circuits in holding that a free speech retaliation claim can't be brought based on threats alone. The university needed to take actual adverse employment action against him rather than just threaten him.

Now on petition for review at the Supreme Court, the Manhattan Institute has filed a brief in support of Prof. Lowery's case. We argue that the Fifth Circuit's reasoning endangers the free speech rights of public employees, particularly professors. If universities know that they can threaten employees because of their speech, they have been given an avenue to do so without legal consequences. Of course, those with minority viewpoints are the ones more likely to be threatened, which, on college campuses, often means conservatives. The Court should review Prof. Lowery's case and bring the Fifth Circuit's divergent holding in line with the other circuits.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

Trevor Burrus is a legal policy fellow at the Manhattan Institute.

With thanks to associate Cameron Grinnell

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