From a brief filed yesterday by Joshua J. Bennett (Baker & Hostetler LLP) on behalf of Dale Carpenter, the Cato Institute, and me in Spectrum WT v. Wendler (for the panel majority and dissent, see here):
Summary of Argument
When the government operates a place or program that allows a wide range of private speech, it may not discriminate among speakers or groups based on their viewpoints. That is true even when the place or program is a limited public forum or nonpublic forum rather than a traditional or designated public forum. The panel majority correctly held that (1) the canceled drag show was speech protected by the First Amendment, and (2) President Wendler violated the First Amendment when he cited the show's "objectionable message" (alleged sexism) to justify its cancelation and without trying to satisfy strict scrutiny. That second conclusion holds true no matter how the forum (Legacy Hall) is classified, whether as a designated public forum, as the panel held; a limited public forum (as the panel dissent argues, Spectrum WT v. Wendler, 151 F.4th 714, 738 (5th Cir. 2025) (Ho, J. dissenting)); or even a nonpublic forum. Viewpoint discrimination is presumptively unconstitutional in each such forum.
Not even the panel dissent takes issue with the panel majority's first conclusion. Citing the Supreme Court's decision in Christian Legal Society v. Martinez, 561 U.S. 661 (2010) ("CLS"), the dissent instead argues for application of the Rule of Goose and Gander. Because, in the dissent's view, CLS permits universities to expel Christian legal societies from limited public fora on campus (if those societies won't agree to open their membership to all comers in exchange for the university's subsidy), "a university may limit use of its facilities to protect the dignity and safety of women," such as by canceling drag shows and thus their "disrespectful message." Spectrum WT v. Wendler, 151 F.4th 714, 739 (5th Cir. 2025) (Ho, J. dissenting).
Yet "[w]hat is good for the goose, is good for the gander—but not necessarily a pterodactyl." United States v. Perkins, 99 F.4th 804, 820 (5th Cir. 2024). Here, the government's confessed viewpoint discrimination is more pterodactyl than gander to CLS's goose. The CLS majority upheld the open-to-all-comers requirement on the grounds that it was a content-neutral restriction that applied to all groups and did not discriminate based on viewpoint. That holding cannot justify the viewpoint-based discrimination that occurred here. The en banc court should therefore affirm the panel majority.
Argument
[I.] Viewpoint Discrimination Is Forbidden Even in Limited Public Fora and Nonpublic Fora.
