SCOTUS turns down cases on conservative meme firing, COVID censorship of RFK Jr. and eviction ban

The high court giveth, and the high court taketh away.

Days after Supreme Court rulings that thrilled conservatives, knocking down district judges' national injunctions and upholding parental rights and state funding bans on abortion providers, the justices turned down First Amendment petitions by a conservative educator fired for social media posts preceding her hiring and by censored critics of COVID-19 dogma.

The high court also rejected a racial harassment and retaliation case by a white high school student against the Austin Independent School District in Texas, which the 5th U.S. Circuit Court of Appeals dismissed on the grounds that only one of the incidents was "truly severe," when another student admitted assaulting the plaintiff because he's white.

Justices Clarence Thomas and Neil Gorsuch dissented from the court denying review of a COVID eviction moratorium challenge against Los Angeles, saying they would have reviewed "whether a policy barring landlords from evicting tenants for the nonpayment of rent affects a physical taking under the Takings Clause." (Four justices must agree to grant review.)

The rejections came in a sprawling Monday order list that also vacated lower-court rulings at odds with recent SCOTUS rulings, including its affirmation of South Carolina's Medicaid ban on Planned Parenthood and Tennessee's ban on medicalized gender transitions for youth, and remanded them for proceedings consistent with the new precedents.

'Mild' memes compared to Westboro Baptist picketing

Unlike his eviction moratorium dissent, Thomas agreed with rejecting Kari MacRae's case on her termination by Hanover Public Schools based on old TikTok posts, saying her petition "does not squarely challenge" the 1st Circuit's application of SCOTUS precedent on public-employee speech, known as the Pickering-Garcetti framework.

But the longest-serving justice wrote a lengthy statement excoriating the Boston-based appeals court with no Republican-nominated judges for gutting that precedent, citing his dissent with Justice Samuel Alito from SCOTUS refusing review of another 1st Circuit ruling in favor of a school district that banned a student from wearing an "only two genders" shirt.

"This [MacRae] case is the latest in a trend of lower court decisions that have misapplied our First Amendment precedents in cases involving controversial political speech," especially public-employee speech allegedly "pursuant" to official duties, Thomas wrote, reiterating he may yet disagree with its precedents but wants them followed until they are overturned.

The 1st Circuit's reasoning "undermines core First Amendment values" by letting a government employer "adopt an institutional viewpoint on the issues of the day and then, when faced with a dissenting employee, portray this disagreement as evidence of disruption," a factor also at play in the "only two genders" case, he said.

Thomas also cited his concurrence in the new ruling that ordered a Maryland school district to restore parental notice and opt-out when it teaches LGBTQ lessons to young children, in which he said "school claims of disruption must be scrutinized" in the free-exercise context to avoid "giv[ing] schools a playbook for evading the First Amendment."

This problem is "exacerbated" when an employee speaks "only outside the workplace and before her employment," as did MacRae, according to Thomas.

MacRae liked, shared, posted or reposted six memes on her TikTok account "expressing her views that immigration laws should be enforced, that an individual’s sex is immutable, and that society should be racially color-blind," Thomas wrote, reprinting her posts.

Anti-censorship group Reclaim the Net elaborated on her posts, which included mockery of then-Assistant Secretary of Health Rachel Levine, the highest-ranking transgender official in the Biden administration, as an "obese man who thinks he's a woman" claiming to be an expert on "mental health and food disorders."

Thomas criticized the 1st Circuit for "discount[ing] the value of MacRae’s speech interest" because of what the appeals court called their "mocking, derogatory, and disparaging manner." Her posts are "mild" compared to the anti-gay picketing signs by the Westboro Baptist Church at military funerals, which SCOTUS has deemed protected, Thomas said.

The 1st Circuit wrongly considered "factors whose disruptive potential was purely speculative" such as some students and staff being "aware" of MacRae's posts and "discussing her social media activity," and went further by considering "illicit" factors – that MacRae's viewpoint different from Hanover's – in the potential for disruption, Thomas said.

"In an appropriate case, I would make clear that public employers cannot use Pickering-Garcetti balancing generally or unsupported claims of disruption in particular to target employees who express disfavored political views," he said.

Won't consider when 'private' content moderation becomes 'state action'

Like most denials, the high court didn't give a reason for rejecting the petition by Children's Health Defense, founded by Health and Human Services Secretary Robert F. Kennedy Jr., to review Meta's alleged collusion with Trump and Biden administration officials to silence CHD's views on vaccines and COVID. No justice commented on it individually.

Kennedy and CHD had most recently lost a parallel case against Biden administration officials, with the 5th Circuit ruling the day before the presidential election that they didn't have legal standing for a preliminary injunction. A year ago SCOTUS created hurdles to demonstrating legal injury from federal agencies coercing tech platforms to censor.

The petition had asked the justices to decide if a 1989 precedent turns the Facebook owner into "a state actor when it affirmatively engages with Executive Branch officials to exercise its State-created privilege to suppress particular viewpoints or speakers," and if so, if that implicates the First Amendment.

It also asked whether "private conduct" by an "interactive computer service" like Facebook transforms into "state action when it willfully conforms its content-moderation process or decisions to Executive Branch preferences" to censor certain views or speakers "or cedes active, meaningful control of its process or decisions to the State?"

The Biden administration's alleged suppression of critics of COVID dogma remains a live political issue. Investigative reporters Michael Shellenberger and Catherine Herridge recently exposed declassified intelligence records that show officials designated vaccine and mask opponents as "Domestic Violent Extremists" – grounds for FBI "assessment."