When the Supreme Court put the onus on states to set their own abortion policies with 2022's Dobbs ruling, it unexpectedly subjected pro-life activists and their legislative allies to an onslaught of abortion-expansion proposals that made it into even red states' laws, with a pro-life research group concluding last week that abortions are rising.

By passing on a case that sought to protect student expression that questions gender ideology from censorship in public schools, SCOTUS may similarly send free speech, gender-critical, religious freedom, conservative and pro-life advocates scrambling at the state and school district levels to protect nondisruptive speech at odds with progressive shibboleths.

The high court Tuesday turned away pleas from those advocates and Republican state attorneys general to hear and reverse the 1st U.S. Circuit Court of Appeals ruling against Liam Morrison, upholding his Massachusetts middle school's ban on wearing shirts that read "there are only two genders" and, after his first punishment, "there are only censored genders." 

First Circuit Chief Judge David Barron – previously a Justice Department lawyer known for secretly advising the president who later nominated him that Barack Obama could legally kill Americans by drone strike – had portrayed the issue as a matter of judicial deference.

"Liam’s story is clear evidence that it’s too early to declare victory in the fight against gender ideology," which "relies on censorship to survive," Alliance Defending Freedom President Kristen Waggoner, whose firm represents Morrison and has a stellar record at SCOTUS when its cases actually get accepted, wrote on X on Tuesday.

"Our basic right to tell the truth is at stake, and we can’t be complacent in defending it," she wrote, while emphasizing "truth has a way of triumphing over lies in the long run. We just have to keep speaking it."

ADF Vice President of U.S. Litigation David Cortman noted that Nichols Middle School (NMS), which Morrison attended when his parents sued on his behalf, "actively promotes its view about gender through posters and ‘Pride’ events" and encourages students to wear clothing in alignment with its views but not those opposed, a content-based restriction.

"It is unfortunate the Supreme Court passed on this opportunity to reaffirm and clarify" that the Tinker "rule against viewpoint discrimination fully applies in public schools," Foundation for Individual Rights and Expression Chief Counsel Robert Corn-Revere, who supported Morrison in a friend-of-the-court brief, wrote in an email. 

Morrison's case "provided a good vehicle for addressing that question," he said.

The 1st Circuit, which lacks a single Republican presidential nominee, has a new chance to legally distinguish restrictions on gender-critical speech between minors and adults.

The Institute for Free Speech filed an appeal this month on behalf of parents challenging a ban on silently protesting a transgender participation policy by wearing "XX" wristbands at their daughters' soccer games, after a President George W. Bush-nominated judge denied them a preliminary injunction last month. 

The law firm previously told Just the News the decision was an "outlier" both nationally and in the 1st Circuit by applying the Morrison ruling "to adults in a limited public forum." A spokesperson said Tuesday "the speech rights of adults are even less of a close call" and "an even more obvious violation" of First Amendment rights.

'Vague, permissive, and jargon-laden rule' at odds with SCOTUS

Justice Samuel Alito wrote a lengthy dissent against the denial of Morrison's case joined by Justice Clarence Thomas, who disagrees with the Vietnam War-era Tinker precedent allegedly ignored by the Boston-based appeals court but said it's "binding precedent that lower courts must faithfully apply" until SCOTUS junks it.

The high court's inaction has stripped "thousands" of students in public schools of their "full panoply of First Amendment rights" in the 1st Circuit's jurisdiction of Massachusetts, Maine and New Hampshire, and left lower courts "confused on how to manage the tension between students’ rights and schools’ obligations," Alito wrote.

The 1st Circuit "employed a vague, permissive, and jargon-laden rule that departed from the standard this Court adopted in" Tinker pertaining to antiwar armbands, the justice said. 

He was baffled that the court "repeatedly emphasized" Morrison's age – 12 when the suit was filed – as justification to exempt him from the 1969 precedent in favor of 13-year-old Mary Beth Tinker as well as older teenagers.

"If a school sees fit to instruct students of a certain age on a social issue like LGBTQ+ rights or gender identity, then the school must tolerate dissenting student speech on those issues," Alito wrote. "If anything, viewpoint discrimination in the lower grades is more objectionable because young children are more impressionable and thus more susceptible to indoctrination."

Alito noted what Morrison was up against. "Inside and outside the classroom, NMS promotes the view that gender is a fluid construct and that a person’s self-defined identity – not biological sex – determines whether that person is male, female, or something else."

The 1st Circuit "fashioned a bespoke two-pronged test" that modifies Tinker to allow censorship of "passive and silently expressed messages … that target no specific student," if the expression is "reasonably interpreted to demean" a "deeply rooted" characteristic of personal identity and "reasonably forecasted to poison the educational atmosphere."

Alito said the risk of "material disruption" in Tinker's school was "far less speculative than in this case" – the students wearing armbands had already received "hostile remarks," and a math teacher's lesson period got "wrecked" by those disputes – yet SCOTUS deemed it "undifferentiated fear" insufficient to censor student expression.

By "cherry-picking which First Amendment principles it thought worthy of allowing through the schoolhouse gates" and excluding SCOTUS viewpoint-discrimination cases, the 1st Circuit at best illustrates the lower courts' confusion over how to apply the material-disruption standard that SCOTUS fleshed out just four years ago in Mahanoy, he said.

Alito reminded the appeals court "the presumption against viewpoint discrimination is of such importance to our constitutional order that we have even applied it to categories of speech – like fighting words – that do not enjoy full First Amendment protection," such that Congress could not ban "only those fighting words directed toward Protestants."

By using a footnote to dismiss the high bar for viewpoint-based restrictions as the product of "recent decisions that clearly did not contemplate the special characteristics of the public-school setting," in Chief Judge Barron's words, the 1st Circuit "erred, and badly so," Alito said.

He quoted his 2007 concurrence in another student speech case to argue that "viewpoint neutrality has long been seen as going to 'the very heart of the First Amendment.'"