Not unlike the Greek god Proteus, a famous shape-shifter, the First Amendment seems to change its form and shape over time, through a process of dynamic judicial construction, to promote and safeguard the ongoing project of democratic deliberation. In fact, the First Amendment’s text plays virtually no meaningful role in protecting expressive freedom in the contemporary United States. Despite containing four distinct clauses (the Speech, Press, Assembly, and Petition Clauses), only the Free Speech Clause seems to do any meaningful jurisprudential work. The Press, Assembly, and Petition Clauses have fallen into desuetude; they generate little constitutional litigation and very few Supreme Court decisions. Textualist jurists, including Justices Neil Gorsuch, Clarence Thomas, Antonin Scalia, and Hugo Black, routinely claim that they must strictly follow the text as written when interpreting the Constitution. Curiously, however, these self-described textualist and originalist jurists do not follow this interpretative approach when applying the First Amendment. Instead, First Amendment interpretation is invariably purposive, dynamic, and of the “living tree” stripe. This phenomenon raises important and interesting questions about the relevance and efficacy of constitutional text in securing both expressive freedom and fundamental rights more generally. In the U.S., and abroad as well, expressive freedom depends much more on social, cultural, and political norms and traditions than on constitutional text. The protean First Amendment strongly suggests that—notwithstanding the vociferousness with which conservative judges, legal scholars, and lawyers advance textualist claims—the process of constitutional adjudication is, in its essence, a common law enterprise. Simply put, text can constrain only insofar as it provides a plausible basis for a judicial decision that accords with the contemporary constitutional sensibilities of We the People.

When a police officer interacts with an individual, the encounter is subject to myriad exceptions to the Fourth Amendment’s warrant requirement that lack a coherent justifying theory. For instance, officers can warrantlessly search if an automobile was involved in the interaction, an arrest occurred, or a protective sweep was necessary to prevent a third-party ambush. Officers and individuals struggle to understand the breadth and complexity of these exceptions. The resulting confusion breeds widespread distrust and raises the tension in millions of interactions across the country. There is an easier way. The Supreme Court has recently reaffirmed its support for a clear and limited “exigent circumstances” exception to the warrant requirement. Such exigencies originally motivated the Court to create many of the separately-named exceptions that apply today. The Supreme Court should return those separate exceptions to their exigency-based roots, eliminating or reducing many of them while lowering the tension in officer-individual interactions. The Court should follow a simple guiding principle: if officers have reasonable suspicion that an interaction creates an exigent circumstance, a warrantless search is constitutional.

In two seminal cases from the 1960s, the U.S. Supreme Court addressed the extent to which the Eighth Amendment permitted the punishment of status versus conduct linked to status. The splintered decisions and analytical imprecision that resulted from those cases have bedeviled lower courts ever since, and the Supreme Court has refused to clarify the confusion. This uncertainty has manifested most recently in the context of homelessness, as courts have disagreed passionately over whether laws criminalizing “life-sustaining” activities in public are unconstitutional as applied to persons who lack private spaces to perform these activities. The status/conduct debate has also engaged scholars who have argued, at times irreconcilably, that a host of criminal statutes impermissibly punish status, including: the cash bond system (poverty); public bathroom laws (gender identity); fetal exposure to illegal drugs (pregnancy); and driving without a license (immigration status). To lend coherence to this area of law, this Article argues that the meaning of status in criminal law should take account of the insights offered by sociologists who have studied this issue in great detail for decades. Incorporating the sociological perspective is not only important in the creation of a workable framework addressing status and conduct; it recognizes, at the same time, the primacy of status in defining who we are and what access status affords to a host of societal benefits.

In June of 2018, Missouri resident Mike Campbell criticized his state representative Cheri Reisch on Twitter. In response, Reisch permanently blocked Campbell from following or commenting on her Twitter account that she used to communicate with the public about her legislative duties and activities.1 This is a scenario that plays out repeatedly where government officials react to private parties whose speech they dislike by blocking them on social media or deleting their comments. Campbell filed suit against Reisch, alleging violation of his free speech rights.2 The district court agreed. Following a bench trial, the court found that Campbell was entitled to declaratory and injunctive relief.3 But the Eighth Circuit reversed, holding that because Reisch’s Twitter had started as a personal campaign account, and was still a vehicle for promoting her fitness for public office, she was free to block whomever she chose.4

In the 1850s, a slave woman named Celia was raped by her owner and forced to bear his children. The same situation is playing out in present-day abortion prohibition states thanks to the Supreme Court’s decision in Dobbs v. Jackson Women’s Health overturning Roe v. Wade. In our country, neither a nineteenth-century enslaved woman nor a present day woman of color in many of the former slave states could seek an abortion. This Article argues that anti-abortion laws in the former slaveholding states perpetuate structures of slavery in the form of state control over the Black female body.

This comment explores the current landscape of First Amendment1 free speech protections, specifically comparing the “off-campus” rights of public students in high school versus college.2 The 2022 legal landscape in the United States is such that students’ First Amendment right to free speech is better safeguarded in public high school than in public post-secondary education. The most recent Supreme Court case on the matter, Mahanoy Area School District v. B.L., decided in 2021 in favor of protecting a high school student’s online speech, leaves out college and university students.3 Instead, courts ruling on public higher education students’ speech will likely look to Tatro v. University of Minnesota, decided in 2012, for guidance.4 In Tatro, the Minnesota Supreme Court found a university student’s online posts violative of the program’s policy and gave the university free rein to punish her speech.5 The differing rulings in B.L. and Tatro might have some plausible explanations as to the divergent treatment the students received, but at the end of the day, it leaves courts ruling inconsistently.