Analysis and Commentary on Speech and Religion
Regulating Civil Disobedience on Campus

Cornell Law professor Michael C. Dorf discusses how colleges and universities should handle student protests that violate campus rules, exploring whether such rule-breaking can be considered civil disobedience and what disciplinary consequences may be appropriate. Professor Dorf argues that while protesters should face consequences for rule violations, universities should consider showing some leniency for peaceful protests involving minor infractions, and that developing fair policies requires an inclusive process involving students, faculty, staff and administrators, as well as robust due process protections.

Should Prosecutors Worry About Having Jewish People on Capital Juries?

Amherst professor Austin Sarat discusses the systematic exclusion of Jewish people from death penalty juries in Alameda County, California, and explores Jewish perspectives on capital punishment. Professor Sarat argues that while Jewish religious texts mention capital punishment, rabbinical interpretations and Jewish history have made many Jews wary of the death penalty, and the discriminatory practices in Alameda County highlight the need to end capital punishment altogether.

What Campus Protests May Do to the 2024 Presidential Election

Amherst professor Austin Sarat discusses the recent surge in pro-Palestinian protests on college campuses across the United States and how these protests have become a political issue in the 2024 presidential campaign. Professor Sarat argues that while peaceful protest should be protected, violent and disruptive protests should not be tolerated, and expresses concern that the campus protests, despite their aim to support human rights, may inadvertently help those who seek to undermine human rights and decency both domestically and internationally.

Why Even Ostensibly Peaceful Expressive “Encampments” at Universities Are Not Immune From Restrictions Under the First Amendment, With Special Attention to Some Analogies to Abortion Clinics

UC Davis Law professor Vikram David Amar and professor emeritus Alan E. Brownstein discuss the regulation of student protests and encampments on college campuses, particularly focusing on the balance between protecting free speech and ensuring the safety and functioning of the university. Professors Amar and Brownstein argue that while peaceful protests should generally be permitted, universities have significant interests—such as preventing physical obstruction, noise pollution, unsanitary conditions, and liability issues—that can justify content-neutral time, place, and manner restrictions on encampments, even if evenly enforcing such restrictions during tense situations presents challenges.

Can a Public High School Punish a Student for Asking a Question that Refers to “Illegal Aliens”? Part Two in a Two-Part Series

In this second of a two-part series of columns discussing a recent incident at a North Carolina high school where a student was suspended for using the term “illegal alien” in class, UC Davis Law professor Vikram David Amar and Illinois Law professor Jason Mazzone explore how the dispute might be analyzed applying only the Supreme Court’s seminal decision in Tinker v. Des Moines Independent School District. Professors Amar and Mazzone argue that while schools have some authority to regulate disruptive student speech under Tinker and Hazelwood v. Kuhlmeier, the student’s suspension here likely violated due process because he lacked clear prior notice that using this term, which appears in Supreme Court opinions and federal statutes, was prohibited.

Can a Public High School Punish a Student for Asking a Question that Refers to “Illegal Aliens”? Part One in a Two-Part Series

In this first of a two-part series of columns discussing a recent incident at a North Carolina high school where a student was suspended for using the term “illegal alien” in class, UC Davis Law professor Vikram David Amar and Illinois Law professor Jason Mazzone explain the relevant First Amendment case law surrounding student speech in public K-12 schools. Professors Amar and Mazzone suggest that under the Supreme Court’s decision in Hazelwood School District v. Kuhlmeier, which allows schools broad authority to regulate student speech that occurs within the curriculum, the school may have been justified in disciplining the student, but they note that there are still some unresolved questions and complexities that they will address in Part II of their analysis.

Federal Antidiscrimination Law Does Not Require Campus Crackdowns

Cornell Law professor Michael C. Dorf discusses the recent conflict at Columbia University involving student protests, potential antisemitism, and the balance between free speech and protection from harassment on college campuses. Professor Dorf argues that while Title VI of the Civil Rights Act obligates colleges to prevent harassment, free speech should be more strongly protected in public campus spaces, and the sensitivities of observers should hold less weight there compared to other campus settings.

Another Campus Episode of Protestors Shouting (and Shutting) Down an Invited Speaker: Representative Jamie Raskin’s Endowed Lecture at the University of Maryland

UC Davis Law professor Vikram David Amar discusses two recent incidents at Stanford Law School and the University of Maryland where student protesters disrupted invited speakers, and he explores the legal and constitutional implications of such disruptions. Professor Amar argues that while protesters have a right to express their dissent, they do not have a constitutional right to “shout down” speakers in a way that prevents the speakers from being heard, and that universities can and should adopt content-neutral policies to prevent such disruptions without violating free speech principles.

President Biden’s Cafeteria Is Open to Everyone

UNLV Boyd School of Law professor Leslie C. Griffin discusses the concept of “cafeteria Catholicism,” where some Catholic politicians, such as President Joe Biden, follow certain elements of their faith while diverging from church teachings on other issues, such as, in Biden’s case, abortion rights, LGBTQ+ equality, and contraception. Professor Griffin argues that cafeteria Catholicism is a good thing, as it allows Catholic politicians to govern based on a pluralistic consensus that protects everyone’s rights and freedoms, rather than imposing specific Catholic doctrines on the entire population.

Was the Federal District Court Correct in Dismissing Disney’s Speech-Retaliation Case Against Florida Officials?

UC Davis Law professor Vikram David Amar, Illinois Law professor Jason Mazzone, and Illinois Law’s First Amendment Clinic director Lena Shapiro examine the legal intricacies and constitutional debates surrounding a federal district court’s dismissal of the Disney Corporation’s lawsuit against Florida officials, in which Disney alleges retaliatory action for Disney’s criticism of Florida laws by changing the governance of the land regulating Disney World. The authors highlight the complexity of First Amendment issues involved, the precedent set by prior cases, and the broader implications for speech regulation and governmental retaliation, suggesting areas for deeper academic exploration.

The Religious Liberty Step Too Far That Could Destroy the Common Good If We Let It

University of Pennsylvania professor Marci A. Hamilton discusses the transformation of religious liberty in the United States into a force that can harm others, critiquing the misuse of the Religious Freedom Restoration Act (RFRA) and the rise of radical religious liberty law. Professor Hamilton argues that while religious liberty includes the absolute right to believe and speak about one's religion, it should not extend to conduct that harms others, warning against the dangerous trend of using religious liberty as a weapon against marginalized groups and advocating for a return to the original principles of the First Amendment.

When Free Speech Isn’t Free

Amherst professor Austin Sarat discusses the complex and often costly nature of exercising free speech, particularly in the wake of controversial statements made by universities and their students about the Hamas terrorist attack in Israel on October 7. Professor Sarat highlights the backlash faced by those who have spoken out, from university donors withdrawing support to law firms rescinding job offers, and he argues that while free speech is a right, it is not without significant repercussions—both socially and professionally.

The Dangerous Allure of Seemingly Inescapable Facts

Cornell professor Joseph Margulies comments on the U.S. Supreme Court’s decision in 303 Creative v. Elenis, in which the Court ostensibly held that a Colorado public accommodations law was unconstitutional as applied to website designer Lorie Smith because it compelled her to create artistic content in violation of her religious beliefs. Professor Margulies argues that the decision has potentially far-reaching implications that could return us to the days of Jim Crow—all because the stipulated facts in that case seemed (to some Justices) to lead to an inescapable result.

Another Free-Speech Dustup Arising from A Student-Invited-Speaker Event, This One at Pitt, Highlights Recurring Problems at Universities, and in Free Speech Doctrine

Illinois Law dean Vikram David Amar and professor Jason Mazzone comment on another free-speech controversy related to a student-invited speaker at the University of Pittsburgh. Dean Amar and Professor Mazzone describe the demand letter sent to Pitt officials by the Alliance Defending Freedom and explain why some of their arguments are on solid legal ground while one is tenuous at best.

Fourth Circuit High School Case from Virginia Offers Controversial, and Seemingly Dubious, Definition of “Disparate Impact” in Equal Protection Challenges

Illinois Law dean Vikram David Amar and professor Jason Mazzone comment on a recent decision by the U.S. Court of Appeals for the Fourth Circuit involving the admissions policy at a school in Virginia. Dean Amar and Professor Mazzone argue that while it’s not clear whether the U.S. Supreme Court will review this case, the issue the case raises is likely to be one the Court takes up soon.

A Colorado High School Graduation Dispute Illustrates Both the Dangers of the So-Called Government-Speech Doctrine and the Need for Better Education From the Supreme Court and the Legal Academy on First Amendment Basics

Illinois Law Dean Vikram David Amar critiques a recent decision by a federal district judge in Colorado on free speech under the First Amendment of the U.S. Constitution. Dean Amar points out the essential problems with the court’s reasoning and assesses what those errors might mean about the shortcomings of legal education and the legal system.

First Amendment Challenges to Public University DEI Programs

Illinois Law Dean Vikram David Amar explores some of the difficult questions related to First Amendment challenges to public university diversity, equity, and inclusion (DEI) policies and programs. Dean Amar points out that while open-ended balancing tests are often unsatisfying, sometimes—as may be the case with these challenges—they are also the best courts can come up with.

How Did Six Conservative Catholics Become Supreme Court Justices Together?

Penn professor Marci Hamilton and UNLV Boyd School of Law professor Leslie C. Griffin explain how six conservative Catholics were able to be on the U.S. Supreme Court at the same time. Professors Hamilton and Griffin describe how 1970s and 1980s laid the groundwork for today’s conservative Catholic Court and argue that this group is making extraordinary progress toward making the United States a Catholic theocracy.

The Figurative and the Literal: Disagreeable Speech versus Intimidation and Physical Attacks

Continuing his discussion of the incident at Stanford Law School, UF Levin College of Law professor Neil H. Buchanan explains the essential difference between disagreeable speech and intimidation and threats of physical violence. Professor Buchanan reminds us that the consequences of being disfavored and vulnerable are not a matter being socially unpopular, but matters of life and death.

The Supreme Court is the True Threat

Cornell Law professor Michael C. Dorf comments on the recent Supreme Court oral argument in Counterman v. Colorado, which raises the question of what may constitute a “true threat,” which is outside the scope of First Amendment protection. Professor Dorf argues that, notwithstanding the present case about stalking, the Court’s rulings gutting the Voting Rights Act, greenlighting extreme political gerrymandering, and expanding the scope of the Second Amendment are the true threat to democracy.

Meet our Columnists
Vikram David Amar
Vikram David Amar

Vikram David Amar is a Distinguished Professor of Law at UC Davis School of Law and a Professor... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, is a visiting professor at both Osgoode Hall... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973.... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He... more

Samuel Estreicher
Samuel Estreicher

Samuel Estreicher is Dwight D. Opperman Professor of Law and Director of the Center of Labor and... more

Leslie C. Griffin
Leslie C. Griffin

Dr. Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School... more

Marci A. Hamilton
Marci A. Hamilton

Professor Marci A. Hamilton is a Professor of Practice in Political Science at the University of... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Government at Cornell University. He was Counsel of Record in... more

Austin Sarat
Austin Sarat

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at... more

Laurence H. Tribe
Laurence H. Tribe

Laurence H. Tribe is the Carl M. Loeb University Professor Emeritus at Harvard University and... more

Lesley Wexler
Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately... more