Family of middle school student appeals decision in free speech case

Three judges posed tough questions to both sides at oral arguments Thursday before the 1st U.S. Circuit Court of Appeals over whether a middle school student had the right to voice his opinions at school through his attire.

In March 2023, then-12-year-old Liam Morrison went to Nichols Middle School in Middleborough, Mass., while wearing a black shirt with white letters stating, “There are only two genders.” School officials asked Liam to remove the shirt. When Liam declined, administrators told him he would have to leave school for the day.

Two months later, Liam and his father and stepmother sued school officials and the town. The lawsuit, filed by Alliance Defending Freedom, alleged that the school censored Liam’s freedom of expression and violated his First Amendment rights.

In June 2023, a lower court denied Liam’s request that the court block school authorities from banning the shirt and dismissed his suit, ruling that his shirt violated LGBTQ students’ right “to a safe and secure educational environment.”

ADF appealed this decision, and ADF Attorney David Cortman defended Liam’s rights during oral arguments on Thursday.

Cortman opened by arguing that the middle school has adopted its own view of sexuality, gender, and identity and was forbidding speech that supports a different point of view. He explained that the middle school had previously encouraged students to “wear a positive message of acceptance/love” during the school’s Pride spirit week. By censoring Liam’s shirt, the school promoted one ideology over another.

Judge David Barron expressed concern about how the shirt could negatively affect LGBTQ students’ mental health.

A few days after the school censored Liam’s shirts, demonstrators gathered outside of the school in support of both free speech and pro-LGBTQ policies. Barron expressed concern that this context amplified the effects of the shirt’s message.

“In particular circumstances, things can develop within a school community where an otherwise unobjectionable message becomes sufficiently objectionable [so] that it can invade the rights of others,” Barron said.

Cortman countered that, if that was the case, then messages on both sides of the issue should have had the same treatment—Liam shouldn’t have been the only one told to stop conveying a message.

Attorney Deborah Ecker then took the stand in defense of the middle school. “Characterizing this statement, that there are only two genders, as … being merely offensive trivializes the significant harm that could occur to nonbinary students who are captive in this classroom looking at it,” she said.

The judges questioned Ecker on how to define what circumstances can make a message on a shirt harmful. They asked if a shirt with a message promoting Judaism or another religion as the best religion would be harmful like Liam’s shirt. Ecker didn’t have an answer.

Barron asked how to assess the effects of Liam’s shirt on others. “So that’s where I’m at least struggling, it’s not that this thing isn’t vile or is vile, it’s sort of who is supposed to decide how vile it is,” Barron said.

Judges asked Cortman if the environment and debate around LBGTQ identities at Liam’s middle school had changed. If not, Judge O. Rogeriee Thompson expressed concern that if Liam wore the shirt to school in the future, it would cause further disruption.

“If he wears the shirt again—given the history that we have with this—why isn’t it predictable that it’s going to happen again?” Thompson said.

Logan Spena, legal counsel for ADF’s Center for Academic Freedom, said he felt the oral arguments went well and that judges posed tough questions to both sides. The judges’ questions demonstrated concern over the lower court’s previous ruling against Liam, Spena said.

The Court of Appeals will likely decide the case in the next few months, he said.

Cases similar to Liam’s have occurred before. In 2020, Spena said, school officials in Mississippi prohibited an elementary student from wearing a face mask with the message “Jesus Loves Me.” ADF filed a lawsuit against the school, and in 2023, the school settled with the student and her family and changed its policy.

Spena said Liam’s case is important for all students, whether or not they agree with the message of his shirt, because the case seeks to protect all students’ rights to free speech.

“What schools are trying to do now is to promote their own view on matters of public concern, like issues of gender identity, sexual orientation … but then they shut down peaceful, respectful speech like Liam’s and they can’t do that,” Spena said. “School officials can’t shut down student speech just because they don’t like the student’s viewpoint.”