Introduction No concept is more pervasive in the law of freedom of speech than chill.[1] The chilled speech doctrine guards against self-censorship: it permits First Amendment challenges based on the allegation that a law deters the plaintiff or others from engaging in constitutionally protected speech.[2] Challengers, in a wide array of First Amendment cases, contend […] Continue Reading >
Introduction A new arrangement of First Amendment positions has upturned constitutional discourse in key areas. Familiar perspectives have transposed not only in Supreme Court opinions but also in policymaking and public debate—and some are reverting back. Inversion on important questions of freedom of expression presents doctrinal puzzles and political challenges. Two examples support this descriptive […] Continue Reading >
Introduction Originalism has a branding and substance problem.[1] If originalism is what it purports to be—impartial and value-free enforcement of the Founders’ intention and “the only approach to text that is compatible with democracy”[2]—more Americans would have faith in the Supreme Court and the constitutional validity of its decisions.[3] In The Originalism Trap, Madiba Dennie […] Continue Reading >
First Amendment Inversion
Academic Freedom by Other Names: Historical Foundations for the First Amendment Right
Introduction The Supreme Court has stated that academic freedom is a “special concern” of the First Amendment.[1] Yet before 1957, there were no American legal precedents that recognized academic freedom as a component of the First Amendment. But these protections did not come out of nowhere. Although concern for the advancement and dissemination of knowledge […] Continue Reading >
Expressive Association as Shield, not Sword: A Constitutional Defense of DEI
Introduction Diversity, equity, and inclusion (DEI)—an effort aimed at remedying historic inequality in opportunities—faces the chopping block. Its opposition claims it commits the very sin it aimed to rid: discrimination. DEI’s opposition has mobilized and attacked on all fronts, already taking down arguably the largest DEI effort—affirmative action, at least as it pertains to race.[1] […] Continue Reading >