First Amendment
From Gods to Google
The First Amendment is a well-known barrier to sensible technology regulation. While scholars blame the Court’s libertarian turn, we offer another explanation: the Court’s solicitude for religious speakers. Religious-speech cases have given firms a powerful suite of deregulatory tools. This Feature draws the through line from gods to Google.
A Legislative Response to 303 Creative
States should respond to the U.S. Supreme Court’s 303 Creative decision by enacting implied warranties of nondiscrimination. Making nondiscrimination a publicly disclaimable default would facilitate informed consumer choice and mitigate the dignitary harms of point-of-sale discrimination.
The Politics and Perverse Effects of the Fight Against Online Medical Misinformation
Platforms’ content moderation of medical misinformation has become one of this era’s biggest political controversies. This Essay traces how platforms’ choices during the COVID-19 pandemic became so politicized, and how the category “medical misinformation” cannot be used to skirt important questions about the legitimacy of platform power over public discourse.
“We Do No Such Thing”: 303 Creative v. Elenis and the Future of First Amendment Challenges to Public Accommodations Laws
In 303 Creative v. Elenis, the Supreme Court ruled that a business had a right to refuse to design a wedding website for a same-sex couple. But properly understood, the decision’s parameters are narrow, and the decision should have minimal effect on public accommodations laws.
Policing Protest: Speech, Space, Crime, and the Jury
Speech can catalyze reform, particularly for marginalized speakers. Yet, criminal law regularly curtails speech rights by regulating access to spaces where speech occurs. This Feature (1) argues that, sometimes, presence in such spaces is the message and (2) proposes a First Amendment defense grounded in communities’ own values.
Racialized Religious School Segregation
Carson v. Makin has several implications for the future of school-choice programs. This Essay explores one possibility: an increase in sectarian schools participating in state-funded school-choice programs, causing new forms of school segregation based on race and religion and impairing the democracy-enhancing functions of public education.
The Once and Future Promise of Religious Schools for Poor and Minority Students
When Carson v. Makin allowed religious schools participation in educational-choice programs, the public-school establishment predicted dire results for marginalized students. This Essay responds to that prediction, exploring religious schools’ historical importance to marginalized students, the public-school establishment’s longstanding hostility to religious schools, and the establishment’s own role in educational inequality.
When Religion and the Public-Education Mission Collide
Recently, the Supreme Court has chosen education as the primary stomping ground for rewriting Free Exercise Clause doctrine. It has framed education policies that prevented public funds from promoting religious indoctrination as discrimination. In the process, it has created a new victim—educational equity and adequacy for traditionally disadvantaged students.
Who’s Afraid of Carson v. Makin?
Carson v. Makin was yet another defeat for progressives in a brutal term. But just how bad was it? This Essay examines how Democratic lawmakers in Maine have already neutralized the ruling, teaching important lessons about how concerned Americans can best resist the Court’s conservative supermajority in the years ahead.
Proceduralize Student Speech
This Note proposes a new dimension for student-speech jurisprudence: procedure. How schools punish speech drives the lessons students learn, and the lessons students learn should drive judicial determinations of whether the educational value of a restriction is worth the First Amendment infringement.
A Counter-History of First Amendment Neutrality
In The Emergence of Neutrality, Jud Campbell provocatively argues that courts only recently recognized the importance of neutrality to First Amendment law. In this Response I argue that this claim is wrong: that neutrality has always been important to free speech law, even if its meaning has shifted over time.
The Emergence of Neutrality
This Article traces the origins of the content and viewpoint neutrality principles in First Amendment law. It argues that these ideas emerged later than scholars have previously appreciated and that their development was tied to a broader Twentieth Century transformation in constitutional rights jurisprudence.
Individualized Exemptions, Vaccine Mandates, and the New Free Exercise Clause
While scholars have interpreted Fulton v. City of Philadelphia as a minimalist decision that avoids revolutionizing the Free Exercise Clause, this Essay uses vaccine mandates as a case study to clarify how Fulton has in fact transformed it by interpreting the right to free exercise as an expansive equality right.
The Case for a Federal Defamation Regime
This Essay argues that Congress can and should replace the existing state-law defamation regime with a federal defamation law. Doctrinally, a federal regime would better fit the modern, boundaryless digital-communications paradigm. Practically, it would benefit press organizations by ensuring their access to the federal courts in defamation cases.
How Two Rights Made a Wrong: Sullivan, Anti-SLAPP, and the Underenforcement of Public-Figure Defamation Torts
When applied in tandem, the Supreme Court’s Sullivan standard and state anti-SLAPP statutes give public-figure defamation plaintiffs a near-impossible task. Such plaintiffs must introduce facts—before discovery—about the defendant’s mental state. Otherwise, courts must dismiss their claims. Our Essay proposes four solutions to this undesirable and unreasonably stringent “super-standard.”
The Foreign Intelligence Surveillance Court and the Petition Clause: Rethinking the First Amendment Right of Access
Drawing on recent litigation seeking access to Foreign Intelligence Surveillance Court opinions, this Essay proposes anchoring the First Amendment right of access not just in the Speech, Press, and Assembly Clauses, but also the Petition Clause. Framed this way, access doctrine vindicates both public and individual rights.
The Facebook Oversight Board: Creating an Independent Institution to Adjudicate Online Free Expression
This Feature documents the creation of the Facebook Oversight Board, an independent external body that provides appellate review of Facebook’s content-moderation decisions and policy recommendations. Should the Oversight Board gain legitimacy, it has tremendous precedential potential for democratizing private platforms’ governance of global online speech.
Sincerity, Religious Questions, and the Accommodation Claims of Muslim Prisoners
Current First Amendment doctrine permits courts to judge a claimant’s religious sincerity in a free-exercise suit but prohibits them from adjudicating religious questions. This Note challenges that understanding by explaining and evaluating how courts treat Muslim prisoner accommodation claims in practice.
Bans
Courts have often suggested that “bans” are per se unconstitutional. But what makes a regulation a ban and why should it matter? This Article addresses those questions, which are particularly pressing as the Supreme Court prepares to hear its first Second Amendment case in nearly a decade.
Beyond Nudging: Debiasing Consumers Through Mixed Framing
Mixed framing juxtaposes the positive and negative attributes of a product. For example, a label using mixed framing might characterize food as “90% fat-free / 10% fat.” This Note advocates that regulators embrace mixed framing as a middle ground in the battle between paternalistic and libertarian approaches to consumer-protection law.