Columbus, OH – On Friday, The Buckeye Institute filed its amicus brief in Wachter v. James, calling on the U.S. Court of Appeals for the Second Circuit to tell New York that its Orwellian “guidance letter” silences speech and violates the First Amendment.

“Albany may have dressed up its Orwellian edict as a guidance letter, but its threat to remove school board members from office for expressing opinions different from the government’s—or allowing citizens at public hearings to express contrary opinions—is a clear violation of the First Amendment,” said David C. Tryon, director of litigation at The Buckeye Institute. “If left to stand, the lower court ruling would hand government agencies a blueprint for silencing their critics without legislative approval. ”

In its brief, The Buckeye Institute demonstrates the coercive nature of government “guidance letters,” highlighting several cases in which the federal government has used “guidance letters” to impose its preferred policy positions and outcomes without going through the regulatory or legislative process. As further proof that the letter chills free speech, The Buckeye Institute points out that 1) New York’s “guidance letter”—which was sent directly to school board members—was cosigned by the state’s attorney general, who is empowered to enforce the laws cited in the letter; and 2) the letter’s threat of removal from office, even if veiled, create a credible fear of punishment. As Justice Clarence  Thomas so succinctly wrote in Biden v. Knight First Amendment Institute, “The government cannot accomplish through threats…what the Constitution prohibits it from doing directly.”

Joining The Buckeye Institute on its brief are the Center for American Liberty, Defense of Freedom Institute, Manhattan Institute, and Kate DelliCarpini, president of the Cold Spring Harbor Central School District’s Board of Education in Cold Spring Harbor, New York. Wachter v. James is a Southeastern Legal Foundation case. 

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