The Un-nuanced and Unconstitutional (But Not Entirely Unreasonable) Views of the Ideologically Pure

Recently, I gave a presentation that afforded me the opportunity to ponder the connection between some hot-button free speech topics:  campus speaker disruptions, the arrests of two University of Connecticut students for using the n-word, and laws mandating that employers respect people’s preferred pronouns and titles.  What follows is my current thinking on these topics and their relationship to each other.

More so than in the past, younger generations have the view that civilly listening to certain types of speakers inappropriately gives these speakers a platform to perpetuate their harmful agendas.  The idea is that neutrality perpetuates the status quo, so champions of social and legal equality do not want to be bystanders to anyone whose views, if taken to the extreme, lead to genocide.  This is not a particularly nuanced approach, given that extreme views are then attributed to those who would never endorse them.  However, the approach is not entirely unreasonable, given our current cultural moment.

The problem is that these views are quite harmful to the free exchange of ideas and academic freedom – principles that are generally applicable and focus on process, not the identity of beneficiaries of particular policies, while also doing a significant amount to advance social and legal equality.

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The Legal Status of Aurora Protest at ICE Warden’s Home

On September 19, as part of a series of protests against Immigration and Customs Enforcement (ICE), a demonstration was held in the Aurora, Colorado neighborhood of the warden of an ICE Processing Center.  The warden works for GEO Group, a private company that contracts with the federal government to run the facility.  Three people were arrested during the protest.  Police also eventually diverted the protest by setting up blocks so protesters couldn’t follow the planned route, which looped back to the warden’s home, and perhaps intimidating protesters and journalists.  Whatever your view of the propriety of a political demonstration outside someone’s home (I am generally opposed to that tactic), the behavior of the Aurora police appears constitutionally suspect.


My account of the facts is based on a conversation I had with a friend of mine who attended the protest.  His attendance was based on the understanding that the protest organizers, Denver Communists and Abolish ICE, ensured a constitutionally protected demonstration.  While trying to leave the protest, his way was blocked by screaming police officers.  I have not verified these facts, but I trust my source, who provided the picture above and sent me video of the protest.  I will proceed on the assumption that the facts as related to me are true; if there is something I am missing or have misunderstood, that changes the analysis.

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What Has the Constitution Done For Me Lately?

Happy Constitution Day.  Today is the day that the delegates to the Constitutional Convention in Philadelphia signed the Constitution and submitted it to Congress, which transferred the document to the States for ratification.  Just like how you didn’t ask to be born, but are (one hopes) glad your parents imposed life upon you, you should be profoundly grateful for the birth of this document, whose creators did not ask your permission – and likely did not represent your interests – but nonetheless imposed rights upon you.

It has become fashionable, for reasons both thoughtful and reflexive, to deride the Constitution and shun attempts to remain faithful to its text.  After all, the Constitution was created and ratified by a bunch of dead, white men, some of whom owned slaves.  (The 13th, 14th, and 15th Amendments were a start to remedying that moral blight and hypocrisy.)  Plus, the document, by design, is undemocratic; it limits the powers of the federal and state governments and provides individuals rights as against democratic legislation.  There have been calls, even by serious scholars, to do away with the Constitution, or to pack the Supreme Court to achieve a reading of the Constitution more sympathetic to certain preferred judicial outcomes.  In honor of Constitution Day, here are just a few reasons why the dead hands of our Framers should still be guiding our lives today.

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First Amendment Cynicism and Redemption

Here’s a draft of my latest paper for downloading.  I’ve been bouncing these ideas around for a while and am glad I got the chance to think about them more deeply and systematically — and to memorialize them in a full-length article.  The abstract is below.


In this article, I propose a way out of the vicious cycle of “First Amendment cynicism.” I define this term as the disingenuous application or non-application of the First Amendment to further political ends unrelated to freedom of expression. The cycle is facilitated by either accurate or inaccurate perceptions of First Amendment cynicism by one’s political opponents.

As one example, the perception by those on the political left that the right is applying the First Amendment cynically –turning the First Amendment into the “New Lochner” — leads the left to lose faith in First Amendment principles. Some on the left then engage in First Amendment cynicism, not applying the First Amendment to those that harm their agenda. This approach is then observed by the right, and the cycle continues. Further, improper accusations of First Amendment cynicism, or what I term “second-order First Amendment cynicism” render this cycle ever more vicious.

To restore both the perception and the reality of a First Amendment that serves the entire political spectrum, I first demonstrate why the increasing accusations of First Amendment cynicism are overstated and ahistorical. I then argue that the First Amendment can be both nonpartisan — treating equally speech of all political stripes — and apolitical — leading to outcomes and social arrangements that favor no political ideology. The best way to ensure that free speech doctrine remains nonpartisan and apolitical is to favor a civil libertarian approach.  However, courts should ensure that the First Amendment is egalitarian in cases where the government must intervene, such as cases involving speech on government land or cases involving the heckler’s veto. Finally, I propose ways for the Supreme Court to manage its docket and refine existing First Amendment doctrine so that the First Amendment serves those who most need its protections.

Is Public Discourse Useful?

The 90th birthday of political philosopher Jorgen Habermas has re-ignited a debate that also undergirds a good portion of First Amendment theory.  In an age of increasing polarization and discord, scholars and laypeople are questioning whether discussions can be rational, productive, and socially beneficial.  Habermas articulated a vision of “communicative rationality,” in which discussion leads to greater human understanding and rational insight.  Social and cultural crisis comes when people no longer care about, as one Habermas defender puts it “intergenerational cultural transmission” or reaching understanding with our political and cultural opponents.

Other philosophers and even legal scholars take the position that more speech is not always better, does not lead to better outcomes, and does not make us more rational – because we care more about identity and emotion (or faith) than logic and evidence.  Just look at Brexit, or climate change, they argue – issues where public discourse leads us away from the proper course of action.  Action, some argue, is what is needed right now to alleviate human suffering, and dialog often obscures more than it illuminates.  I recommend you read the highly edifying debate over Habermas and his ideas.  I would like to take the opportunity, fully amenable to discussion myself, to confront some aspects of whether unfettered discourse is or can be beneficial.

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“Veggie Burger” Labeling Ban Presents Meaty First Amendment Case

In a case that may cause partisans to switch their views on free speech, plant-based food companies are suing Mississippi officials to protect their commercial speech so they can label their products with terms like “vegan jerky.”

Plant-based food companies, including Upton’s Naturals, have filed a lawsuit over a ban that prevents using terms associated with meat to sell plant-based products.  According to the lawsuit, Upton’s Naturals and other plant-based food manufacturers would no longer be permitted to use terms like “vegan chorizo” and “meatless meatballs,” even though these terms are not misleading to consumers.  The complaint seeks to invalidate the Mississippi law as a violation of plant-based food companies’ First Amendment rights.  This case is particularly meaty because it may alter the usual political alliances generally associated with the protection of corporate speech.

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The “FUCT” Trademark Decision, Another Harvard Revocation, and the Paradox of Tolerance

The Supreme Court decided today in Iancu v. Brunetti that a federal statute barring “immoral[] or scandalous” trademarks violates the First Amendment.   This means that the Patent and Trademark Office (PTO) cannot deny a trademark to Erik Brunetti’s FUCT clothing line simply because it is immoral or scandalous.  A ban on immoral and scandalous trademarks impermissibly denies a government benefit based on viewpoint — the substance of ideas, not only the mode of expression.  Justice Kagan’s majority opinion therefore did not need to answer the question of whether Congress could simply ban vulgar and sexually explicit trademarks, or trademarks involving racial epithets, as bans on the mode of expression instead of the underlying viewpoint.  However, Justice Sotomayor, in a partial concurrence and partial dissent, feared that people will rush to register these types of marks before Congress amends its trademark statute.

Brunetti, although different in a number of dimensions, thus also calls to mind Harvard’s recent revocation of the acceptance of Parkland survivor and gun-rights activist Kyle Kashuv.  Harvard, as a private university, is not subject to the First Amendment, but does have an ethical obligation as an academic institution to aid in the open pursuit of knowledge and truth, both free speech values.  Two years ago, a blog I wrote — on Harvard’s rescinding of acceptances of 10 students who had participated in a private, offensive meme-sharing Facebook chat group — was cited in The Washington Post.  I criticized Harvard for trying to police humor that occurs in private forums.  Kashuv’s revocation is both more and less justified.  Kashuv’s situation does illustrate why I believe Harvard is erring in its position on the increasingly relevant “paradox of tolerance.”  The decision in Iancu v. Brunetti could be instructive here.

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Crim Pro Final Exam (and answer)

Dara was riding in a bus in the State of Goldbergia when the bus suffered a mechanical failure.  The bus driver pulled over in a parking lot, waiting for a mechanic, and told the passengers that they could either sit on the bus or roam around nearby until the bus was fixed.

Three police officers eating nearby came to see what the problem was.  They couldn’t find the driver, so they walked onto the bus.  Dara was the only passenger who opted to stay on the bus, so the officers surrounded Dara and casually asked her what had happened.  She explained that the bus had broken down, and everyone else was eating or walking around nearby.  The officers asked Dara if they could search her bags, and she said yes.  Unbeknownst to Dara, another passenger on the bus had put a new street drug, Mintata, in her bag.  The officers found the Mintata.

The police arrested Dara for possession of Mintata.  They read Dara her Miranda rights and took her to the police station.  They asked her if she wanted to talk and she said, “I don’t know.”  After two hours of questioning, Dara asked for a peppermint.


  1. The police seek to admit the Mintata found in Dara’s bag at Dara’s trial. What is the likely result?
  2. The police seek to admit Dara’s asking for a peppermint under the theory that Mintata makes people crave peppermints. What is the likely result?

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Federal Courts Examining BDS Movement Boycott Restrictions

State laws targeting the Boycott, Divestment, Sanctions (BDS) movement have required various lower courts to consider the constitutional status of boycotts.  Several states now limit the availability of government contracts for those who refuse to deal with Israeli businesses, prompting legal challenges claiming that certain types of boycotts are constitutionally protected speech.  Whether the government may restrict contracts for those who participate in BDS-type boycotts depends on whether refusals to deal, when part of a larger social boycott movement, are protected expressive conduct under the First Amendment.

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