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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)
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....