Commercial Speech, Gender Expression
Vazzo v. City of Tampa
On Appeal Mixed Outcome
Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:
Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.
The United States (U.S.) District Court for ,Southern District Court of Ohio Western Division adopted the decision of the Magistrate Judge who dismissed a professor’s complaint for violation of his constitutional rights after his university disciplined him for improperly addressing a transgender student in his class. The professor, Nicholas Meriwether, refused to address a transgender student by her preferred title and pronouns. Shawnee State University issued a written warning to Mr Meriwether for violating its nondiscrimination policies. Mr Meriwether brought a lawsuit against the officials at Shawnee State, arguing that his constitutional rights were violated. The Magistrate Judge dismissed the claims for lacking an articulated footing. Upon assessing the case, Judge Susan J. Dlott agreed with the Magistrate Judge and dismissed Mr Meriwether’s claims. She had conducted a de novo review of the Magistrate Judge’s recommendation and could not identify a stated claim that signified the violation of any constitutional rights. The case is currently on appeal before the U.S. Court of Appeal for the Sixth Circuit.
The plaintiff in the case was Nicholas K. Meriwether. Mr Meriwether, a self-described evangelical Christian, was a professor of philosophy at Shawnee State University in Portsmouth, Ohio. A transgender student in Mr Meriwether’s class requested that he refer to the student by her preferred gender identity title and pronouns. Mr Meriwether had refused her request, instead resorting to use the student’s surname only. Typically, he would refer to students by the title “Mr” or “Ms” followed by their surnames.
Administrators opened an investigation into the matter. Mr Meriwether eventually received a written warning from the university for violating its nondiscrimination policies.
Mr Meriwether pursued a grievance in response to the discipline but his grievance was denied. In turn, he brought a lawsuit against the Trustees of Shawnee State University and some of the University’s officials for violating his constitutional rights.
In his claim, Mr Meriwether outlined nine complaints including violations of his First Amendment right to free speech, violation of First Amendment right to free exercise of religion, violation of the Due Process Clause and Equal Protection clause, and violation of the rights of conscience and free exercise of religion under the Ohio Constitution; and breach of contract.
He sought declaratory and injunctive relief against the enforcement of the Shawnee State’s nondiscrimination policies and the removal of the discipline against him. The defendants, the Trustees of Shawnee State and Shawnee State’s officials, and intervenor-defendants sought to dismiss Mr Meriwether’s complaint.
US Magistrate Judge Karen L. Litkovitz issued a thorough Report and Recommendation. In it, she reviewed Mr Meriwether’s nine causes of action and recommended dismissing the federal claims for not articulating “a claim upon which relief [could] be granted.” [p. 2] Specifically, she argued that Mr Meriwether’s incorrect use of pronouns was part of his official duty as a professor and public employee and thus he was not speaking as a private citizen who could bring a First Amendment retaliation claim. She declined to exercise supplemental jurisdiction over the other two state claims.
Consequently, Mr Meriwether filed his objections to the Report and Recommendation.
Judge Susan J. Dlott of the US District Court for the Southern District of Ohio Western Division sought to evaluate the Report and Recommendation based on Mr Meriwether’s objections.
The Court conducted a de novo review of the Magistrate Judge’s recommendation on a dispositive motion in accordance with Rule 72(b) of the Federal Rules of Civil Procedure. This included assessing the Report and Recommendation, Mr Meriwether’s objections, and the defendants’ and intervenor-defendants’ responses. The Court also analyzed the relevant law.
Ultimately, the Court found that Mr Meriwether failed to state a claim for violation of his rights under the U.S. Constitution. Mr Meriwether’s speech, specifically the way he addressed the transgender student, was not covered by the First Amendment’s protection. Additionally, the facts were not pleaded sufficiently to argue that Mr Meriwether’s right to free exercise of religion was violated, or that his rights to due process or equal protection were violated, or that there was a departure from “religious neutrality” – referencing Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission 584 U.S. (2018).
Thus, the Court adopted the Magistrate Judge’s recommendation to dismiss the federal claims and to decline to exercise supplemental jurisdiction over the state claims. Mr Meriwether’s objections were overruled and the case was dismissed.
Mr Meriwether subsequently appealed the case before the US Court of Appeals for the Sixth Circuit.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case contracts expression because the plaintiff’s objections were dismissed for not effectively outlining violations of his constitutional rights – specifically his First Amendment right to free speech and free exercise of religion. The plaintiff’s speech (how he addressed the transgender student) was thus not protected. However, as the case was dismissed the University’s non-discrimination policy which protected the student’s gender expression remained in full force.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
The plaintiff did not plead the facts sufficiently to argue that there was a departure from “religious neutrality”.
Case significance refers to how influential the case is and how its significance changes over time.
Let us know if you notice errors or if the case analysis needs revision.