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In letter to Dean Robert Schapiro, the Foundation for Individual Rights in Education writes: "Smith’s post on his personal blog is an exercise of extramural expression, a right USD Law expressly provides to its faculty.... Accordingly, we call on USD Law to immediately disband its investigation into Smith."

By the time the final count of states is made, the country likely will be roughly split in half before the Supreme Court. While SCOTUS could flip it off with a one-sentence denial without explanation, like it did in the prior suit, a nation so legally divided makes it harder not at least to consider the merits and give an explained decision.