Lowery, for instance, only obtained the text of the anonymous complaint asking UT’s compliance office to investigate if Lowery violated the university’s “standards of ethics and respect for faculty” on October 30, learned the identity of the complaint’s author (Kelly Kamm) in December, and received follow- up emails between Kamm and a UT administrator about “the pertinent university policy” in Jan. [...] A complaint is not futile if it “contain[s] sufficient factual matter to state a claim to relief that is plausible on its face,” accepting “all well-pleaded facts as true and consider[ing] the complaint in the light 6 Case 1:23-cv-00129-DAE Document 115 Filed 02/23/24 Page 8 of 12 most favorable to the plaintiff.” SMH Enters., 340 F. [...] “Whereas there must be some evidence that a rule would be applied to the plaintiff in order for that plaintiff to bring an as-applied challenge, that is not the case for facial challenges” which only require that a policy “facially restrict[s] expressive activity by the class to which the plaintiff belongs.” Id. [...] In addition, the existence of an unwritten speech policy that is selectively applied to disfavored speakers is distinct from the question of whether Defendants acted to chill Lowery by asking Carvalho to “counsel” Lowery or threatening Lowery’s Salem-Center affiliation. [...] Lowery’s proposed complaint alleges that his First Amendment rights are facially deterred by the prospective enforcement of UT’s unwritten speech code, that this speech code likely would be enforced against him in the future, and that the code already has been enforced against him in the past.
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- 12
- Published in
- United States of America
