PR ploy: 1-A petitioner asks SCOTUS to overrule Obergefell
First Amendment News 482
“The High Court now has the opportunity to finally overturn this egregious opinion from 2015.”
– Mathew D. Staver, chairman, Liberty Counsel (July 24, 2025)
“This court should revisit and reverse Obergefell for the same reasons articulated in Dobbs v. Jackson Women’s Health Center.”
– Mathew D. Staver (counsel of record for Petitioner)
There is nothing like a zinger headline to draw attention to a case. Just consider the Fox news headline concerning a cert. petition recently filed in Davis v. Ermold:
Kim Davis’ lawyer says Supreme Court has ‘good chance’ of hearing case urging same-sex marriage be overturned.
It all makes for an eye-catching media yarn, even if its more outrageous claims are simply that.
Recall Kim Davis, the former Kentucky county clerk who defied a federal court order to issue marriage licenses to same-sex couples after the Supreme Court legalized gay marriage in Obergefell v. Hodges. And this came at a time when Kentucky’s Governor ordered all county clerks to issue same-sex marriage licenses immediately. When Davis, a public employee, refused and continued to defy the court order, she was jailed for contempt of court. Thereafter, David Ermold and David Moore filed a 42 U.S.C. §1983 suit against Davis. On Sept. 13, 2023, a jury ordered Davis to pay Ermold and Moore $100,000 in damages. She was later ordered to pay attorneys’ fees ($246,026.40) and attorneys' expenses ($14,058.30). The U.S. Court of Appeals for the Sixth Circuit upheld the judgment. In relevant part, Judge Helene White declared:
Davis’s contrary view would subvert the Bill of Rights. As Davis sees it, a public official can wield the authority of the state to violate the constitutional rights of citizens if the official believes she is “follow[ing] her conscience. . . . That cannot be correct. ‘The very purpose of a Bill of Rights” is to place certain freedoms ‘beyond the reach of . . . [government] officials.’ W. Va. State Bd. of Ed. v. Barnette . . . (1943). Thus, when an official’s discharge of her duties according to her conscience violates the constitutional rights of citizens, the Constitution must win out. The Bill of Rights would serve little purpose if it could be freely ignored whenever an official’s conscience so dictates.
Three claims raised in cert. petition
(1) Whether the First Amendment Free Exercise Clause provides an affirmative defense to tort liability based solely on emotional distress damages with no actual damages in the same manner as the Free Speech Clause under Snyder v. Phelps, 562 U.S. 443 (2011).
(2) Whether a government official stripped of Eleventh Amendment immunity and sued in her individual capacity based solely on emotional distress damages with no actual damages is entitled to assert individual capacity and personal First Amendment defenses in the same or similar manner as any other individual defendant like in Snyder v. Phelps, 562 U.S. 443 (2011), or does she stand before this Court with no constitutional defenses or immunity whatsoever.
(3) Whether Obergefell v. Hodges, 576 U.S. 644 (2015), and the legal fiction of substantive due process, should be overturned.
Overruling Obergefell: A sound claim?
This argument by Mr. Staver on Ms. Davis’ behalf strikes me as a clever media strategy but an unsound legal claim. Even though there has been a flood of media attention over the cert. petition given that the Court ordered the Respondent to file a reply brief, here are five reasons why I think this claim is going nowhere:
First: As Stephen Vladeck has correctly observed: The Court’s order for a response is something that “requires a request from only a single justice, and is in no way predictive of a grant of certiorari.”
Second: Importantly, the Obergefell claim was not raised below. Again, as Professor Vladeck has noted: “Davis forfeited the question of whether Obergefell should be overruled by not raising it in the trial court. It’s understandable that the Court’s behavior has left so many folks skeptical of its fidelity to even a recent precedent like Obergefell. But even if Obergefell might be vulnerable at some point in the future, I would, quite frankly, be shocked if the Court granted certiorari here.”
Third: While Davis invoked the First Amendment’s free exercise clause in her defense, “a federal district court said in response that it could find no precedent, nor did Davis cite one, ‘where a defendant’s constitutional rights were found to be a valid defense for violating the constitutional rights of others.’” (See Matt Ford, “This Probably Won’t Be the SCOTUS Case That Kills Marriage Equality,” The New Republic (Aug. 13))
Fourth: The First Amendment relief Davis seeks does not require the Court to go the extra 100 miles and overrule Obergefell. In this regard, I think Matt Ford makes a compelling argument:
The only way that Obergefell is actually relevant to the outcome of Davis’s case is if the Supreme Court says that she is entitled to qualified immunity because the right to marriage for same-sex couples wasn’t a “clearly established right” at the time because Obergefell was wrongly decided. My faith in the justices is fairly weak these days, but even I don’t think they would do that. Not only would the court effectively be rewarding a litigant for ignoring a Supreme Court ruling in the first place, but it would also blow up the court’s qualified immunity jurisprudence along the way. How could lower courts determine what rights are “clearly established” if they can’t even reliably use Supreme Court rulings to do it?
Fifth: As I suggest in a forthcoming book of mine titled “Forbidden Freedom,” I agree with Steve Vladeck: “I don’t actually think there are five votes, at least right now, to overrule Obergefell.”
Settlement in Dominion’s defamation lawsuit
Tim Zick, “Big Lie Defamation Litigation Update,” Substack (Aug. 18)
The New York Times is reporting that Dominion Voting Systems and Newsmax have settled Dominion’s defamation lawsuit, which relates to false claims about the company and its voting machines during the 2020 presidential election, for $67 million. Dominion had sued Newsmax for $1.6 billion. The settlement terms do not include any apology, retraction, or admission of fault by Newsmax, which continues to insist that its coverage of Donald Trump’s false claims of election fraud was “fair, balanced and conducted within professional standards of journalism.”
Last fall, Newsmax settled a similar defamation lawsuit brought by Smartmatic, another election technology company, for $40 million. That still makes it a relative lightweight compared to Fox News, which in 2023 agreed to settle a defamation lawsuit filed by Dominion for $787.5 million.
To put it mildly, the Big Lie has been expensive for both Fox News and Newsmax. Fox still faces another $2.7 billion lawsuit filed by Smartmatic, which will go to trial in a Manhattan state court unless there is a settlement. Fox has publicly stated it intends to defend itself at the trial. But given the similarities between the Dominion and Smartmatic claims, it would not be much of a surprise if Fox settled that case as well.
Zick proceeds to distinguish the Dominion defamation actions from those brought by Mr. Trump — see here)
Trump Admin. guidance re diversity programs struck down
“Judge Strikes Down Trump Administration Guidance Against Diversity Programs at Schools and Colleges,” Associated Press // First Amendment Watch (Aug. 15)
A federal judge on Thursday struck down two Trump administration actions aimed at eliminating diversity, equity and inclusion programs at the nation’s schools and universities.
In her ruling, U.S. District Judge Stephanie Gallagher in Maryland found that the Education Department violated the law when it threatened to cut federal funding from educational institutions that continued with DEI initiatives.
The guidance has been on hold since April when three federal judges blocked various portions of the Education Department’s anti-DEI measures.
The ruling Thursday followed a motion for summary judgment from the American Federation of Teachers and the American Sociological Association, which challenged the government’s actions in a February lawsuit.
The case centers on two Education Department memos ordering schools and universities to end all ‘race-based decision-making’ or face penalties up to a total loss of federal funding. It’s part of a campaign to end practices the Trump administration frames as discrimination against white and Asian American students.
West Texas A&M drag ban on constitutional hold
“VICTORY! 5th Circuit blocks West Texas A&M’s unconstitutional drag ban,” FIRE (Aug. 18)
In a victory for student expression on campus, the U.S. Court of Appeals for the Fifth Circuit today overruled a lower court to halt an unconstitutional ban on student drag performances at West Texas A&M University.
In March 2023, West Texas A&M President Walter Wendler announced that he was unilaterally canceling a planned campus drag show hosted by LGBTQ+ organization Spectrum WT to raise money for suicide prevention. In a campus-wide email, Wendler said that he was canceling the event because he believes it offends and demeans women.
As a public official at a state university, the First Amendment bars Wendler from censoring a performance based on nothing more than his personal disapproval. But astonishingly, Wendler admitted he was canceling the show even though “the law of the land appears to require” him to allow it.
[FIRE] quickly jumped into action, filing a lawsuit against Wendler and West Texas A&M on behalf of Spectrum WT, its president Bear Bright, and vice president Marcus Stovall. FIRE’s lawsuit seeks to halt Wendler’s unlawful censorship and obtain damages for violating the students’ clearly established First Amendment rights.
In September 2023, the district court denied FIRE's motion for a preliminary injunction. While the case made its way through the courts, Wendler canceled a second drag show planned by Spectrum WT in March 2024.
[The] ruling from the Fifth Circuit overturns the district court’s ruling and places a temporary hold on Wendler’s enforcement of his illegal directive, allowing Spectrum WT and any other student organization to put on drag shows while litigation continues.
The majority opinion from Judge Leslie H. Southwick found a substantial likelihood that Spectrum WT’s First Amendment claims would prevail on the merits.
Note: Judge James Ho dissented: “Spectrum WT claims that it has a First Amendment right to put on a drag show in a public facility at West Texas A&M University. But university officials have determined that drag shows are sexist, for the same reason that blackface performances are racist. And Supreme Court precedent demands that we respect university officials when it comes to regulating student activities to ensure an inclusive educational environment for all. See Christian Legal Society v. Martinez (2010).”
Big books in conflict: Dabhoiwala vs. Mchangama on the history and lessons of free speech
A just-published book and another one released three years ago both offer accounts of the history of free speech, but have quite different views as to the nature and value of the right.
Plans are in the works for a public exchange between the two. Stay tuned!
Fara Dabhoiwala, “What Is Free Speech?: The History of a Dangerous Idea” (Belknap Press. Harvard University Press, 480 pp.)
Jacob Mchangama, “Free Speech: A History from Socrates to Social Media” (Basic Books, 2022, paperback 2025, 560 pp.)
Related
Jacob Mchangama and Jeff Kosseff, “The Future of Free Speech: Reversing the Global Decline of Democracy's Most Essential Freedom,” Johns Hopkins University Press (April 2026)
Scholarly article on the history of fighting words
Note, “Fighting Words at the Founding,” Harvard Law Review (2025)
“God hates you wicked baby killing whores,” “cocksucker,” “fucking cunt,” and “shut your fucking mouth, you bitch” are statements that start fights. In 1791, it was similarly inflammatory to call someone a “drunkard,” “liar,” “puppy,” “blackguard,” “companion for negroes,” or (more ambitiously) a “cuckoldly knave.” Modern law labels speech that, in context, tends to provoke immediate violence “fighting words.” This kind of expression was proscribable in 1791 and is subject to content-based regulation today.
At the Founding, speakers of fighting words were indictable only if they intended to cause violence. Yet today, Americans who speak fighting words without any intention of causing a fight routinely face criminal sanctions. The Supreme Court has yet to rule definitively on whether the First Amendment requires that the government prove mens rea to punish the speaker of a fighting word. But in the lower courts, nearly every defendant prosecuted for speaking a fighting word faces strict liability: Her interior mental state is irrelevant. That approach breaks with the uniform practice of the common law at the time the nation ratified the First Amendment.
The difference matters. In 2001, Paul Graham was upset with the way police officers had detained a state fair attendee. After calling one of the officers a “bald-headed dick with ears,” he was arrested. In 1791, Graham could have argued his words merely “proceed[ed] from sudden heat and passion” and that he lacked intent to fight the policeman. That defense no longer exists, and Graham’s conviction stood on appeal. Just after noon in late 2009, a young man flashed a Sureño gang sign at a rival Norteño gang member. California indicted him for challenging the Norteño to a fight. In 1791, the defendant could have argued that he had not flashed the sign with intent to cause actual violence: He knew “there was a girl in the car” with the Norteño and figured “there won’t be a gang fight when [a] girl [is] present.” But today, that argument is worthless.
The conviction was affirmed. The fighting words doctrine lives. In Counterman v. Colorado, seven Justices joined opinions observing that the “Court has not upheld a conviction under the fighting-words doctrine in 80 years.” But the doctrine’s batting average at the Supreme Court is a poor proxy for its practical vitality; most fighting words cases get nowhere near trial, much less the nation’s apex tribunal. The doctrine is still good law. Armed with the power to punish insulting speech, prosecutors have descended on misguided and overzealous expression like bees on lavender. Because the Supreme Court has yet to resolve the issue, the mens rea that the government must show to prosecute the speaker of a fighting word is an open question.
This Note argues that if the common law of 1791 is relevant to the scope of the First Amendment, it offers a single simple rule: No speaker can be punished for a spoken fighting word unless he specifically intended to cause violence. Part I describes the proscribable categories, the constitutionally mandatory mens reas attached to them, and the uncertainty surrounding the mens rea for fighting words. Part II discusses the wrongful mental states attached to the eighteenth and early nineteenth-century regulations that would today fall within the fighting words doctrine. It finds that all plausible analogues required intent to cause violence. A final section concludes.
So to Speak podcast: “Where does Harvard go from here?”
“FIRE Reacts -- Where does Harvard go from here? With Larry Summers,” FIRE (Aug. 12)
2025 has not been kind to Harvard.
To date, the Trump administration has revoked nearly $3 billion in research funding to the university, demanding violations of free speech, academic freedom, and institutional autonomy in return for restoring the funding. In response, Harvard filed a lawsuit, raising First Amendment claims.
Helping us unpack all things Harvard are:
Larry Summers, president emeritus, professor (Harvard) & advisory council member (FIRE)
Greg Lukianoff, president & CEO (FIRE)
More in the news
Eugene Volokh, “Plaintiff Had Alleged He Was Called a ‘Haitian N****,’” The Volokh Conspiracy (Aug. 19)
Stephany Matat, “Florida First Amendment clash: State threatens school board after chair's Hulk Hogan post,” Tallahassee Democrat (Aug. 18)
Eugene Volokh, “Judge Quashes FTC Investigative Demand to Media Matters, Finding ‘Straightforward First Amendment Violation,’” The Volokh Conspiracy (Aug. 18)
Alyse Pfeil, “Judge tosses First Amendment lawsuit against Louisiana senator over tweets about abortion,” TP-Nola (Aug. 18)
Connor Tomlinson, “The US will accept UK Free Speech Refugees,” YouTube (Aug.17)
“FIRE Attorney Zach Silver on the First Amendment Right to Record Police in Pennsylvania,” First Amendment Watch (Aug. 15)
Mark Sherman, “Supreme Court allows Miss. to require age verification on social media, for now,” Free Speech Center (Aug. 15)
“Hulk Hogan’s Lasting Effect on Publishing and Privacy Isn’t What You Think,” First Amendment Watch (Aug. 14)
Amy Howe, “Supreme Court allows restrictions on children’s access to social media to remain in place,” SCOTUSblog (Aug. 14)
2024-2025 SCOTUS term: Free expression and related cases
Cases decided
Villarreal v. Alaniz (Petition granted. Judgment vacated and case remanded for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam))
Murphy v. Schmitt (“The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Gonzalez v. Trevino, 602 U. S. (2024) (per curiam).”)
TikTok Inc. and ByteDance Ltd v. Garland (9-0: The challenged provisions of the Protecting Americans from Foreign Adversary Controlled Applications Act do not violate petitioners’ First Amendment rights.)
Review granted
Cases for Next Term
Pending petitions
Petitions denied
MacRae v. Mattos (Thomas, J., special opinion)
L.M. v. Town of Middleborough (Thomas, J. dissenting), Alito, J., dissenting)
No on E, San Franciscans Opposing the Affordable Care Housing Production Act, et al. v. Chiu
Emergency Applications
Netchoice v. Fitch (emergency relief denied with Kavanaugh, J., concurring with separate opinion: “I concur in the Court’s denial of NetChoice’s application for interim relief because NetChoice has not sufficiently demonstrated that the balance of harms and equities favors it at this time. . . . To be clear, NetChoice has, in my view, demonstrated that it is likely to succeed on the merits—namely, that enforcement of the Mississippi law would likely violate its members’ First Amendment rights under this Court’s precedents.”
Yost v. Ohio Attorney General (Kavanaugh, J., “IT IS ORDERED that the March 14, 2025, order of the United States District Court for the Southern District of Ohio, case No. 2:24-cv-1401, is hereby stayed pending further order of the undersigned order of the Court. It is further ordered that a response to the application be filed on or before Wednesday, April 16, 2025, by 5 p.m. (EDT).”)
Free speech-related
Mahmoud v. Taylor (argued April 22 / free exercise case: issue: Whether public schools burden parents’ religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents’ religious convictions and without notice or opportunity to opt out.)
Thompson v. United States (decided: 3-21-25/ 9-0 w special concurrences by Alito & Jackson) (interpretation of 18 U. S. C. §1014 re “false statements”)
Last scheduled FAN
FAN 481: “When judicial review in the Trump era is inadequate to safeguard First Amendment rights”
This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article’s author(s) and may not reflect the opinions of FIRE.