Precedents Cited and Their Influence

• Speech First, Inc. v. Fenves, 979 F.3d 319 (5th Cir. 2020): The cornerstone for pre-enforcement standing in campus speech disputes. Speech First held that plaintiffs show injury-in-fact when they intend to engage in protected speech arguably proscribed by a policy and face a substantial threat of enforcement. Lowery extends this logic to an alleged unwritten speech code at the pleading stage: accepting allegations as true, the code’s “existence” suffices to establish the substantial-threat prong. This is a meaningful application of Speech First in a non-codified policy context.
• Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014): Provides the general framework for pre-enforcement First Amendment standing. The Fifth Circuit leverages SBA List to emphasize that credible threats of enforcement causing self-censorship can constitute injury-in-fact.
• Laird v. Tatum, 408 U.S. 1 (1972): Recognizes that mere subjective chill is insufficient, but governmental actions that create an objective chill can be cognizable. The panel harmonizes Laird with Speech First/SBA List to find sufficient chill on Lowery’s pleaded facts for standing.
• Breaux v. City of Garland, 205 F.3d 150 (5th Cir. 2000) and progeny (e.g., Anderson v. Valdez, 845 F.3d 580 (5th Cir. 2016)): Control the elements of First Amendment employment retaliation in the Fifth Circuit: plaintiffs must show an adverse employment action, public concern, Pickering balancing, and causation. Breaux’s “narrow” list of adverse actions (termination, demotion, refusal to hire or promote, and reprimand) is reemphasized here, along with the principle that investigations, criticism, and unconsummated threats are not adverse actions.
• Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006): Establishes the “materially adverse” standard for Title VII anti-retaliation claims. The court refuses to transplant that Title VII standard into First Amendment retaliation, invoking the Fifth Circuit’s stringent rule of orderliness (In re Bonvillian Marine Serv., Inc., 19 F.4th 787 (5th Cir. 2021))—no clear, unequivocal Supreme Court abrogation of Breaux in the First Amendment context.
• Houston Community College System v. Wilson, 595 U.S. 468 (2022) and Nieves v. Bartlett, 587 U.S. 391 (2019): Cited to reinforce that First Amendment retaliation requires an “adverse action” causally linked to protected speech; nothing in these cases imports Burlington Northern into First Amendment retaliation doctrine.
• Keenan v. Tejada, 290 F.3d 252 (5th Cir. 2002); Harrington v. Harris, 118 F.3d 359 (5th Cir. 1997); Pierce v. Texas Dep’t of Criminal Justice, 37 F.3d 1146 (5th Cir. 1994); Colson v. Grohman, 174 F.3d 498 (5th Cir. 1999): These decisions collectively limit actionable “adverse” steps and explain that criticism, investigations, and false accusations, without tangible employment consequences, are not adverse employment actions—even when they chill speech.
• Pickering v. Board of Education, 391 U.S. 563 (1968) and related public-employee speech cases (Connick, Rankin, Garcetti, etc.): Provide the balancing framework for public-employee speech, though the panel notes that such balancing most often arises when an employee has been disciplined or fired. Without an adverse employment action, the need to conduct Pickering balancing is often obviated.
• Serafine v. Branaman, 810 F.3d 354 (5th Cir. 2016); United States v. Stevens, 559 U.S. 460 (2010); United States v. Hansen, 599 U.S. 762 (2023): Govern the high bar for facial overbreadth claims and the preference for deciding as-applied challenges first. The court emphasizes that overbreadth should be employed “sparingly,” and plaintiffs must plausibly allege that a substantial number of the policy’s applications are unconstitutional relative to its legitimate sweep.
• Dorsett v. Board of Trustees for State Colleges & Universities, 940 F.2d 121 (5th Cir. 1991): A note of institutional restraint: federal courts should hesitate to micromanage university affairs—an ethos the panel reprises in rejecting a role as the “Federal Faculty Lounge Police.”
• Speech First, Inc. v. Whitten, 145 S. Ct. 701 (2025) (Thomas, J., dissenting from denial of certiorari): Quoted for the “objective chill” concept when government imposes “informal sanctions.” While a dissent from denial, the court uses its articulation to describe the chilling inquiry at the pleadings stage.

Legal Reasoning

1) Standing: Extending Speech First to Alleged Unwritten Policies

Applying SBA List and Speech First, the panel found injury-in-fact because Lowery plans to speak on matters of public concern; his speech is at least arguably proscribed by the alleged “civility” regime (discouraging “uncivil” or “rude” speech, counseling speakers, and labeling critical speech “disruptive”); and there is a substantial threat of enforcement. Critically, the court accepts, for Rule 12 purposes, Lowery’s allegations that such an unwritten policy exists and treats that “existence” as sufficient to satisfy the standing prong concerning threatened enforcement. Causation and redressability follow: potential enforcement caused self-censorship, and an injunction could redress it.

2) No Distinct “Chilled-Speech” Cause of Action Under § 1983

The court holds that a “chilled-speech” claim is not independent from a First Amendment retaliation claim. Both counts as pleaded complained that administrators’ actions caused Lowery to self-censor. In the Fifth Circuit, retaliation doctrine governs such claims, and—importantly—retaliation requires an adverse employment action. This closes the door on any attempt to sidestep the adverse-action element by recharacterizing retaliation as “chilled speech.”

3) Retaliation: Breaux Controls; Burlington Northern Does Not Apply

The panel reaffirmed that Breaux’s “adverse employment action” requirement governs First Amendment public-employee retaliation claims in this circuit. Under the rule of orderliness, a prior panel decision remains binding unless the Supreme Court has “unequivocally” overruled it. Burlington Northern—a Title VII decision—does not “unequivocally” displace Breaux in the First Amendment context. Fifth Circuit cases have repeatedly noted it remains an “open question,” but the court here proceeds under Breaux and its narrow view of actionable adverse actions.

Applying Breaux, Lowery did not suffer an adverse employment action. Indeed, his contract was renewed and his salary increased. The record contained criticism, internal monitoring, and a police “threat mitigation investigation” that did not result in discipline. Under Pierce and Breaux, unconsummated investigations and criticism—even if chilling—are not adverse employment actions.

4) The Unwritten Speech Code Claims

• As-Applied: Because Lowery did not suffer an adverse employment action and did not propose a distinct analytical framework for evaluating an as-applied restraint outside retaliation doctrine, the court found no viable as-applied claim. The court also rejected a “reciprocity” theory—that administrators must be equally charitable to all viewpoints—emphasizing that mere disparagement or unequal “counseling” absent discipline is too “trivial or minor” to be actionable under the First Amendment in public employment.
• Overbreadth (Facial): Dismissed at 12(b)(6) for failure to plausibly allege the policy’s existence and breadth and failure to show that a substantial number of its applications would be unconstitutional. The court stressed (i) the sparing use of facial overbreadth; (ii) the difficulty of “construing” an unwritten policy; (iii) the need for factual content identifying scope and enforcement; and (iv) institutional reluctance to supervise day-to-day university affairs. Without a concrete policy text or adverse employment actions demonstrating unconstitutional application, the overbreadth challenge was premature and conclusory.

5) Discovery Rulings

The Fifth Circuit affirmed two discovery decisions under abuse-of-discretion review: (1) the magistrate judge’s in camera privilege determinations regarding August 2022 texts and talking points, and (2) a protective order foreclosing discovery into alleged nepotism relating to the UT President’s son. Even assuming arguendo error, Lowery failed to show prejudice—especially because, absent an adverse employment action, additional motive evidence would not rescue the retaliation claim.

Impact and Forward-Looking Implications

• Doctrinal clarification: No standalone “chilled-speech” claim. The Fifth Circuit has now expressly stated that a “chilled-speech” § 1983 claim does not exist apart from First Amendment retaliation. Plaintiffs alleging that governmental acts chilled their speech must satisfy retaliation’s elements—including an adverse employment action in public employment cases under Breaux. This is a consequential clarification within the circuit.
• Retaliation element remains stringent in the Fifth Circuit. The panel reaffirms Breaux’s narrow conception of adverse employment actions, resisting Burlington Northern’s broader Title VII standard. For public employees, reprimands, terminations, demotions, and refusals to hire or promote remain the touchstones. Investigations, counseling, criticism, and internal monitoring—without more—will generally not suffice. Universities and public employers have clearer guidance on the line between nonactionable managerial responses and actionable discipline.
• Standing for unwritten policies at the pleading stage. The court’s application of Speech First to alleged unwritten speech codes lowers the standing barrier for pre-enforcement challenges. Plaintiffs can obtain the courthouse door open if they plausibly allege that an unwritten policy exists and credibly threatens enforcement. However, surviving 12(b)(6) on the merits still requires more concrete plausibility as to policy existence, scope, and unconstitutional applications.
• Facial overbreadth remains hard, especially without text. Overbreadth claims against non-codified practices face headwinds: courts need something to construe, and plaintiffs must plausibly allege that a substantial number of applications are unconstitutional relative to legitimate scope. Absent documented pattern or policy text, overbreadth challenges will likely fail at the pleading stage.
• Litigation strategy for campus speech plaintiffs: To state a viable retaliation claim in the Fifth Circuit, plaintiffs should document formal discipline (reprimands, pay cuts tied to speech, demotions, removal from appointments, nonrenewals, or firings) or denials of promotion/opportunities. For policy-based claims, they should gather concrete evidence of policy existence (written directives, emails invoking “policy,” consistent enforcement records) and instances where Pickering balancing would be clearly lost by the university.
• Administrative practice for universities: While the decision shields routine managerial responses from liability absent adverse employment action, universities should still exercise care: records that explicitly tie adverse actions to viewpoint or protected speech will be actionable. Clear, written, viewpoint-neutral civility or conduct policies, applied consistently, reduce both standing and merits risks.
• Open questions remain: The circuit again flags—but does not resolve—whether Burlington Northern’s “materially adverse” standard ever applies to First Amendment retaliation. That question is preserved for a future case or higher-court resolution.