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.

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.

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.

Amherst professor Austin Sarat discusses Georgia’s plan to execute Willie James Pye on March 20, 2023, and the state’s efforts to restrict press access and impose secrecy around the execution process. Professor Sarat argues that Georgia’s lethal injection protocol, which severely limits what the press can witness and the public can know about executions, is unlawful and arbitrary, serving no legitimate state interest, and that the court should grant the request to stop executions until the restrictions on press access are removed.

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.

UNLV Boyd School of Law professor Leslie C. Griffin describes the ministerial exception—a First Amendment rule created by courts that bars the application of anti-discrimination laws to religious organizations’ employment relationships with its “ministers”—and enumerates some of the cases in which the exception led to dismissal of a lawsuit. Griffin argues that we as a society cannot achieve full justice as long as courts interpret religious freedom to include a ministerial exception that condones racial discrimination lawsuits.

UNLV Boyd School of Law professor Leslie C. Griffin comments on three recent decisions by the U.S. Supreme Court in which religion has won, at the expense of women. Griffin explains why the Court’s decisions in Our Lady of Guadalupe School v. Morrissey-Berru (and the consolidated case, St. James School v. Biel), Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania (and the consolidated case, Trump v. Pennsylvania), and Espinoza v. Montana Department of Revenue together amount to sanctioned and government-funded discrimination masquerading as religious freedom.

GW Law professors Ira C. Lupu and Robert W. Tuttle explain why the path the U.S. Supreme Court might be about to take in ministerial exception cases—relying on the Free Exercise Clause of the First Amendment—is dangerously misguided. Lupu and Tuttle argue that the ministerial exception rests primarily on the Establishment Clause and is strictly limited to employment decisions about who leads or controls a faith community, or who transmits a faith.

SMU Dedman School of Law professor Joanna L. Grossman comments on a recent decision by the U.S. Court of Appeals for the Third Circuit upholding a local law designed to address the wage gap. Grossman describes the landscape of equal pay law and the efforts some states and localities have made to address the inequity.

UNLV Boyd School of Law professor Leslie C. Griffin comments on the oral argument the U.S. Supreme Court heard this week in Espinoza v. Montana Department of Revenue, which presents the justices with questions about the meaning of the Free Exercise and Establishment Clauses of the First Amendment. Griffin describes the questioning by the justices and predicts that the outcome in this case will demonstrate how many justices still believe in the separation of church and state.

Cornell law professor Michael C. Dorf comments on a case the U.S. Supreme Court recently agreed to review that presents the question whether a provision of the Delaware Constitution that requires the state’s judiciary be nearly equally balanced between Democrats and Republicans is constitutional. Dorf argues in favor of the provision, explaining that the provision takes into consideration partisan affiliation as means of limiting the role of politics in judicial appointments and judging.

Cornell law professor Sherry F. Colb comments on a decision the U.S. Supreme Court issued toward the end of the last term, in which a majority of the Court ruled that as long as police have probable cause for an arrest, it does not matter if their actual motivation for arresting someone violates the person’s First Amendment rights. Colb considers whether such pretextual, speech-based arrests are a problem, how they differ from other pretextual arrests, and how the ruling in this case resembles the law of a seemingly different area—post-conviction incarceration for convicted criminals.

Cornell law professor Michael C. Dorf comments on Facebook’s global efforts to block hate speech and other offensive content and explains why formula-based policy necessarily makes very little sense. As Dorf explains, accurate determinations of hate speech require cultural understanding and evaluations of cases on an individual basis, but this approach also necessarily injects individual bias into those decisions. Thus, Facebook’s policy, while not ideal, may be but one of a handful of inadequate options.

SMU Dedman School of Law professor Joanna L. Grossman comments on the recent oral argument in NIFLA v. Becerra, in which so-called Crisis Pregnancy Centers challenge California’s Reproductive FACT Act as violating their First Amendment right to free speech by requiring posted information about medical licensure and abortion. Grossman points out that Justices Stephen Breyer and Sonia Sotomayor seemed to believe that if California’s FACT Act violates the First Amendment, then so too would laws in other states requiring that doctors engage in anti-abortion (or abortion-deterrent) speech.

Illinois Law dean and professor Vikram David Amar and UC Davis Law emeritus professor Alan E. Brownstein describe and analyze the two main legal doctrines that give rise to the action in the blockbuster movie The Post, which chronicles the efforts of journalists at the Washington Post and the New York Times to publish the Pentagon Papers. As Amar and Brownstein explain, the rule against prior restraint and the collateral bar rule animated many of the motives, moves, and countermoves that were documented in the acclaimed film.

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.

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.

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.

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.

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.