Analysis and Commentary on Speech and Religion
Religious Liberty Should Be Freedom for All Believers Not a Privilege for Some

University of Pennsylvania professor Marci A. Hamilton examines Christian Nationalism and the Napa Legal Institute's Faith and Freedom Index, exploring how they relate to religious liberty, extreme religious liberty, and theocracy in America. Professor Hamilton argues that Christian Nationalism and the Religious Freedom Restoration Act (RFRA) represent dangerous departures from traditional First Amendment religious liberty protections, as they enable religious groups to discriminate against others and violate neutral laws while potentially paving the way for an intolerant Christian theocracy.

Louisiana Ten Commandments Case—And Much More—Could Be Headed To SCOTUS

Cornell Law professor Michael C. Dorf discusses a recent federal case in which a court struck down Louisiana’s law requiring Ten Commandments displays in public school classrooms based on the 1980 Supreme Court precedent Stone v. Graham, and the subsequent partial stay of that ruling by the Fifth Circuit. Professor Dorf argues that while the district judge correctly followed the still-binding Stone precedent, the disagreement among lower courts reflects broader uncertainty in an era where the current Supreme Court is willing to overturn long-standing precedents, making it increasingly difficult for lower courts to determine which precedents remain controlling law.

Why Most Public-University Policy Revisions Prompted by Pro-Palestinian Protests Will Be Considered to Be Content- and Viewpoint-Neutral

UC Davis Law professor Vikram David Amar examines whether recent changes to public university campus policies regarding protests and speech, which were largely prompted by Gaza-Israel related demonstrations, can be considered unconstitutional viewpoint discrimination under the First Amendment. Professor Amar argues that while such policy changes may disproportionately affect certain viewpoints in the short term, they are generally legally permissible as long as they are facially neutral, since proving discriminatory intent in free speech cases is particularly challenging and courts have historically upheld similar reactive but neutral regulations in various contexts.

The Past, Present, and Future of Free Speech in America

Cornell Law professor Michael C. Dorf discusses the history of free speech in America and recent controversies surrounding it, particularly on college campuses. Professor Dorf argues that while there was once a bipartisan consensus supporting free speech, recent events have led to inconsistent stances on both sides of the political spectrum, with many people supporting free speech only when it aligns with their views.

Advice to Campus Administrators: Don’t Call it an “Expressive Activities Policy,” Except to the Extent that Expressive Activities Receive Extra Solicitude

Cornell Law professor Michael C. Dorf discusses the adoption of “expressive activity policies” by colleges and universities in response to recent campus protests, examining the legal and practical implications of such policies. Professor Dorf argues that it is a mistake for educational institutions to frame their regulations as targeting expressive activities specifically, suggesting instead that they should focus on content-neutral conduct regulations that apply equally to expressive and non-expressive activities.

The Second Circuit Should Reverse a Misguided “Abortion Pill Reversal” Ruling

Cornell Law professor Michael C. Dorf discusses a federal judge’s ruling that enjoins New York’s attorney general from enforcing state laws against crisis pregnancy centers promoting “abortion pill reversal” (APR) on First Amendment grounds. Professor Dorf argues that the ruling misunderstands the state’s interest in protecting citizens’ health and safety, asserting that the government should be able to regulate potentially false or dangerous medical claims even when they are made without commercial motive.

Why Elon Musk’s (and X’s) Lawsuit Against Companies Who Have Stopped Advertising on the X Platform Is Legally Weak

UC Davis Law professors Vikram David Amar and Ashutosh Bhagwat analyze the antitrust lawsuit filed by X Corp. (formerly Twitter) against the World Federation of Advertisers and other corporations, examining potential legal barriers to the suit under antitrust law and the First Amendment. Professors Amar and Bhagwat argue that X’s lawsuit faces significant challenges, primarily because the alleged boycott likely falls under First Amendment protection similar to that granted in NAACP v. Claiborne Hardware, and because forcing advertisers to advertise on X would constitute compelled speech, which is generally prohibited under recent Supreme Court precedents.

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.

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 the University of... 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