Moloney & McIntyre filed their brief with the First Circuit on Friday. Because the brief does not really break any new ground, I don’t review it in detail other than to repeat my view that whatever the merits of the First Amendment issues raised in the case, Moloney & McIntyre lack standing, and the appeal is therefore likely to fail.
In a new development, the ACLU of Massachusetts has moved for an extension of time to file a brief as amicus curiae. The ACLU says it wants to file a brief because it “believes that the academic freedom and scholarship issues raised in this case implicate significant constitutional interests that will inform the Court’s decision.” Because BC has not (so far) appealed, I am not sure that the First Amendment issues really will play a role in the decision. But in any event, the government has opposed the ACLU’s motion. It’s not clear to me why the ACLU became interested in this case, and why it became interested in the case so late—perhaps Moloney & McIntyre approached it? In any event, I will report on the court’s disposition of this motion and on the ACLU’s brief, if one is ultimately filed.