Analysis and Commentary on Speech and Religion
Do Trump’s Attacks on CNN Render Unconstitutional the Justice Department’s Effort to Block AT&T’s Acquisition of Time Warner?

Cornell University law professor Michael C. Dorf considers how President Trump’s attacks on CNN affect the Justice Department’s efforts to block AT&T’s proposed purchase of Time Warner (by requiring AT&T to sell off Turner Broadcasting, the parent company of CNN, or DirecTV). As Dorf points out, illicit intent can taint policies that without such intent would pass constitutional muster. Dorf explains why AT&T likely can meet the threshold of making a “credible showing of different treatment of similarly situated persons” to advance allegations of selective prosecution based on free speech.

The Troublingly Widening Gyre of Complicity Claims

Cornell University law professor Michael C. Dorf describes a principle most famously articulated by Thomas Jefferson, under which there should be a right to avoid providing financial support for causes one strongly opposes. Dorf argues that the Jeffersonian principle has lately run amok. He points out that the government’s argument against allowing a seventeen-year-old undocumented immigrant in federal custody to obtain a privately funded abortion is but one example of the government’s too-broad definition of “facilitation” of acts with which it disagrees. Dorf argues that adoption of such a position would convert every objectionable private exercise of rights into government participation.

The Trump Administration Mimics Mississippi on Civil Rights

Marci A. Hamilton, a professor and resident senior fellow in the Fox Leadership Program at the University of Pennsylvania, describes how Mississippi and President Trump (with the help of Jeff Sessions) are bent on demeaning and disempowering LGBT individuals in every way possible. Hamilton points to the passage of the federal Religious Freedom Restoration Act of 1993 as the starting point for this movement, despite the law’s being struck down as unconstitutional in 1997.

Can Government Prevent Hostile Listeners from “Shouting Down” Controversial Speakers?

Illinois Law dean and professor Vikram David Amar and UC Davis Law emeritus professor Alan E. Brownstein propose and analyze a law to prevent hostile listeners from “shouting down” controversial speakers that, arguably, would pass constitutional muster. Amar and Brownstein do not fully agree on which standard of review should apply to the regulation they propose, but they do agree that the mere fact that a general law is applied to conventionally expressive conduct does not always justify increasing the standard of review applied to it.

How First Amendment Speech Doctrine Ought to Be Created and Applied in the Colorado Baker/Gay Wedding Dispute at the Supreme Court

Illinois Law dean Vikram David Amar and UC Davis Law emeritus professor Alan E. Brownstein point out that the US Supreme Court has no comprehensive doctrine on compelled speech under the First Amendment, especially as compared to its very nuanced doctrine on suppression of speech. Amar and Brownstein identify core elements that should comprise a comprehensive doctrine and call upon the Supreme Court to adopt similar guidelines when it decides an upcoming case, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, in which a baker challenges a Colorado public accommodations law on First Amendment grounds, citing compelled speech. Without taking a position on how this dispute should be resolved as a matter of social policy, Amar and Brownstein argue that the doctrinal framework they describe does not support rigorous review in this case.

Free Speech Issues Raised by Internet Companies Denying Service to Neo-Nazi Sites

Cornell University law professor Michael C. Dorf uses the refusal of private internet domain registrars to do business with neo-Nazi website The Daily Stormer to illustrate the need for a change in the law. Dorf acknowledges that in the case of The Daily Stormer, no rights were violated, and the companies acted within their terms of service. However, Dorf argues that Congress should impose obligations to respect freedom of speech on companies that provide essential internet services to avoid the future possibility that such private companies stifle speech of worthy organizations and legitimate causes.

So When Will Religious Organizations Choose Not to Discriminate?

Leading church-state scholar Marci A. Hamilton comments on a recent decision by the U.S. Court of Appeals for the Second Circuit in which it held that a female principal of a Catholic school has no legal recourse when a priest engages in gender discrimination that would be actionable in any other setting. Hamilton explains that this is a product of the misguided ministerial exception, which is part of a larger, more troubling social pattern of religious entities demanding a right to discriminate and harm others.

Some Aspects of the Matal v. Tam Trademark Case That Would Have Benefitted from More Explanation

Illinois Law dean and professor Vikram David Amar comments on the U.S. Supreme Court’s recent decision in Matal v. Tam, in which the Court struck down as unconstitutional part of the federal trademark registration statute that prohibits registration of disparaging marks. Amar points out that the Court’s decision in Matal is difficult to square with its reasoning and holding in Walker v. Texas Division, Sons of Confederate Soldiers, a case from two years ago in which the Court upheld Texas’s refusal to approve a specialty license plate design that made extensive use of the Confederate flag image.

Can a Presidential Candidate Get Away With Defamatory Lying?

Cornell University law professor Michael C. Dorf analyzes the arguments made by Donald Trump’s lawyers in defending against Summer Zervos’s defamation suit against him, specifically the argument that Trump’s comments were mere “hyperbole” and “fiery rhetoric,” which, in the context of a presidential campaign, do not amount to defamation under state law. Dorf argues that existing law already offers politicians some protections against frivolous lawsuits, and what Trump’s lawyers are asking for is essentially a license for a candidate to lie about anyone and anything so long as the controversy has some connection to politics.

Trinity Lutheran Church v. Comer at the Supreme Court: Be Careful What They Wish For

Marci A. Hamilton, a leading church/state scholar and Fox Distinguished Scholar in the Fox Leadership Program at the University of Pennsylvania, comments on the U.S. Supreme Court’s recent decision in Trinity Lutheran Church v. Comer, which Hamilton argues reflects a common-sense application of existing jurisprudence on the Free Exercise Clause. Hamilton laments that legislators are not acting with the same level of common sense as they develop and interpret dangerous Religious Freedom Restoration Acts.

Remaining Faithful to Free Speech and Academic Freedom

Illinois Law dean and professor Vikram David Amar laments recent instances of censored speech, particularly on university campuses, and reminds us that freedom of speech and academic freedom protect even those speakers whose message might be perceived odious, racist, sexist, or hateful. Amar points out that both freedom of speech and academic freedom are rooted in the principle that ideas and arguments ought to be evaluated on their substance and that the essence of both kinds of freedom is the opportunity to persuade others of the merits of one's argument, rather than the use of power to coerce or silence others.

Texas House Approves a Doomed Abortion Law: Why?

Cornell University law professor Sherry F. Colb discusses legislation recently approved by the Texas House that will almost certainly be struck down as unconstitutionally restricting women's right to seek an abortion prior to fetal viability. Colb explains that the legislation is more speech than it is law and discusses some possible reasons the state would want to “speak” in this manner.

What Gianforte’s Special Election Victory Teaches About Freedom of the Press

Cornell University law professor Michael C. Dorf comments on the recent election of Republican Greg Gianforte in Montana, despite Gianforte’s being charged with misdemeanor assault for body-slamming a reporter. Dorf considers the broader implications of voters’ apparent indifference to the assault.

George Wallace at Harvard—The Good Old Days of Campus Free Speech

Chapman University, Fowler School of Law, professor Ronald D. Rotunda comments on the plight of free speech on college campuses and elsewhere. Rotunda describes the limitations on speech imposed not only by college campuses, but also by governments, despite their ostensible support for the freedom of speech.

What We Really Mean by the Culture War

Cornell University law professor Joseph Margulies points out that teaching about religion is substantially different from promoting one religion at the expense of another, or of promoting religiosity at the expense of agnosticism or atheism. Margulies argues that a San Diego school district’s choice to teach about Islam promotes a safe climate of respect and toleration, notwithstanding claims that it has “surrendered” to Sharia law.

An English Teacher Corrects Shakespeare

Chapman University, Fowler School of Law, professor Ronald D. Rotunda critiques an English professor at Northern Arizona University for insisting that a student use the word “humankind” rather than “mankind.” Rotunda points out that the origin of the English word “man” encompasses both sexes and that for English professors (or any instructor) to force students to use certain words and shun others is an abuse of the power of words.

Credit Cards and the Disturbingly Widening Gyre of Free Speech

Cornell University law professor Michael C. Dorf explains the significance of the U.S. Supreme Court’s recent decision regarding New York credit card surcharge laws as free speech. Dorf argues that the decision reflects an alarming trend of the Roberts Court to agree to recognize challenges to economic regulations on free speech grounds.

The Real Religious Liberty Deficits Right in Front of Us

Marci Hamilton, a Fox Distinguished Scholar in the Fox Leadership Program at the University of Pennsylvania and leading church/state scholar, outlines what the United States must do to restore true religious liberty under the First Amendment, rather than go down the path of extreme religious liberty supported by right-wing Christian lobbyists. Hamilton argues that President Trump needs to remove Steve Bannon, unhinge himself from the extreme religious right, and open his eyes to the plain discrimination directly in front of him.

The Religious Liberty Draft Executive Order and the Risks to Children

Marci A. Hamilton, a Fox Distinguished Scholar in the Fox Leadership Program at the University of Pennsylvania, describes how extremely broad President Trump’s draft executive order on religious liberty, explaining how its breadth could have huge negative effects on children, LGBTQ individuals, and many others. Hamilton argues that the executive order is even broader than RFRA and that it poses both known and unknown risks to children.

Meet our Columnists
Vikram David Amar
Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, holds the James J. Freeland Eminent Scholar... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is the C.S. Wong Professor of Law at Cornell University. Colb teaches courses in... 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 the Dwight D. Opperman Professor, Director, Center for Labor and Employment... 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

MARCI A. HAMILTON is the Fels Institute of Government Professor of Practice, and Fox Family... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of... more

Austin Sarat
Austin Sarat

Austin Sarat is Associate Provost, Associate Dean of the Faculty and William Nelson Cromwell... more

Lesley Wexler
Lesley Wexler

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