Richard Lowery, a professor at the University of Texas at Austin, regularly speaks on issues of public concern, including critical race theory and affirmative action. In response, university officials pressured Lowery to modify his speech and threatened to strip Lowery of his position at the Salem Center, a center for public policy study that Lowery helped build. Worse, university police opened a “threat mitigation investigation” into Lowery. Based on this pressure and those threats, Lowery reduced his online public presence.

Lowery sued his employer, claiming that it had chilled his speech by retaliating against him because of his unpopular participation in public debate. In most states, Lowery’s claim would have had a strong likelihood of success, given the seriousness of the threats made against him. But because Lowery worked in Texas, which is part of the Fifth Circuit, Lowery’s claim failed. Under Fifth Circuit precedent, it is not enough for a government employer to threaten a public employee for his speech. Rather, the Fifth Circuit requires that an adverse employment action must have actually been taken, such as “discharges, demotions, refusals to hire, refusals to promote, and reprimands.” Because Lowery was only threatened with such actions and self-censored before they could be carried out, the Fifth Circuit held that his First Amendment claim was categorically barred.

Now Lowery is asking the Supreme Court to take his case and answer a question that has split the circuit courts of appeals: Whether a public employer’s threats against an employee can suffice to establish a First Amendment retaliation claim. And Cato has joined Protect the First Foundation, the Foundation for Individual Rights and Expression (FIRE), and the National Coalition Against Censorship (NCAC) to file an amicus brief supporting Lowery’s petition (with thanks to Gene Schaerr, Hannah Smith, and Joshua Prince of Schaerr Jaffe for drafting the brief).

In our brief, we focus on just how important this question is by recounting some examples of real-world cases that were determined by this distinction. In one case, the Sixth Circuit rightly held that a public university professor could bring a retaliation claim against officials who had threatened him by monitoring his behavior, encouraging others to terminate him, and ominously saying he might be “leaving soon.” Those defendants actively threatened the professor’s employment status, but under the Fifth Circuit’s approach they would have been immune from accountability. And cases in the Seventh and Ninth Circuits similarly held that threats can be enough to establish a First Amendment retaliation claim if those threats would deter “a person of ordinary firmness” (one of the many imaginary archetypes in the legal canon).

A credible threat of discipline can be just as effective at stifling public employees’ protected speech as actually carrying out the threat. The petition should be granted, and the Supreme Court should reverse the Fifth Circuit and allow Lowery’s claims to proceed.