The bad news: this more expansive definition has sown considerable confusion among the lower courts--for good reason! it is very difficult to apply, as I show--and resulted in very inconsistent and often not very speech-protective decisionmaking
The good news: by expanding the definition to include not only laws that disfavor particular ideologies (Communists for example) but also laws that disfavor entire genres of speech (religious advocacy) SCOTUS has made it harder for govt actors to surreptitiously viewpoint discriminate. (2/4)
In the paper, I suggest a solution to this problem—a prob which is only going to get more impt as SCOTUS continues to expand the number of 1A cases which turn on the Q of viewpt discrimin. And I more generally trace the history of a surprisingly dynamic principle of 1A law. Please check it out!
The rule against viewpoint discrimination is one of the most imptl in First A law. But as I show in a new paper, forthcoming in the U Penn Law Review, the test of viewpoint discrimination has changed a LOT in the past few decades, in good ways and bad. 🧵
papers.ssrn.com/sol3/papers....
Highly recommended! An excellent and incisive takedown of one of the worst Supreme Court 1A decisions in recent memory....
I am thrilled that my article exploring the STRONG protection that 1A law provides against govt jawboning is now out in @uchilrev.bsky.social. It is deeply depressing however that understanding the law of jawboning remains so impt today lawreview.uchicago.edu/print-archiv...
My thoughts on the principles that should guide structural reform of our free speech system in a post-Trump era (🤞), for @knightcolumbia.org's Reconstructing Free Expression project