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.

The United States committed at least two original sins. The one, slavery, is well known. The other, conquest, is both obvious and unknown at the same time.

The Constitution was designed and implemented to facilitate American empire. The country we now know grew from a narrow strip of colonies along the east coast to encompass much of a continent, from sea to shining sea. It grew purposefully, through powers newly granted in the Constitution. The conquest of native America happened pursuant to the Constitution.

Millions of people around the world, most of them women, have been victims of revenge porn and have suffered intense pain and distress as a result. By 2021, almost all US states had criminalized revenge porn, defining it primarily as an infringement of privacy, as obscenity or as harassment. US courts have recently considered the constitutionality of criminalizing revenge porn in view of the potential conflict with freedom of speech. Contrary to the courts’ decisions, we argue that revenge porn is a sex offense and therefore justifies limiting the disseminator’s freedom of speech to a significant degree. Empirical evidence indicates that victims experience revenge porn as an erasure of their personal autonomy, one that radically disrupts their lives, alters their sense of self and identity, and dramatically affects their relationship with themselves and with others. Insofar as the rationale of freedom of speech relies on the protection of autonomy, the protection of the disseminator’s autonomy should not be at the expense of erasing the victim’s autonomy. Thus, our argument highlights the necessity for US state legislators to redefine the boundaries of the revenge porn offense accordingly.

Imagine that you are at home, when suddenly a drone peers into your window, takes a picture of your wardrobe, familiarizes itself with your fashion preferences, or takes a picture of your kitchen table during dinner. The drone immediately transfers the picture to the commercial platform that operates it, such as Amazon or Uber. The platform in turn targets you with personalized advertisements for merchandise or food, in real time, customized to your lifestyle, at the time when you are most susceptible, manipulating you to make a purchase. How should the law react to this? And what if a drone were to collect information on private individuals in public using sophisticated cameras, sensors and facial recognition software? What if the platform that operates drones were to collect and use information on consumers and third parties? Should the law limit such invasions of privacy?

The use of drones is growing rapidly and their technological capabilities are growing exponentially. Drones differ from existing surveillance technology. Their low cost and their ability to fly, equipped with high-resolution cameras, recording systems and sensors, enable them to take in information over longer periods of time and much more effectively than the human eye or ear. Such capabilities are liable to give rise to pervasive surveillance of a kind never known before. Making matters worse, invasion of privacy has serious consequences. By using a network of drone fleets at the service of a single commercial platform, such surveillance could allow the platform to effectively aggregate and analyze tremendous amounts of high-quality information on the parties under surveillance, gain valuable insight on consumers and influence their decisions to order merchandise or food.

Article III of the U.S. Constitution requires that judicial power extend only to “cases” and “controversies”—a requirement commonly understood as standing to sue.1 Article III’s standing requirement embodies a constitutional minimum that the plaintiff must have suffered a concrete injury, fairly traceable to the defendant’s conduct that a court can redress by a favorable ruling.2 Congress may even specify what is required of a potential plaintiff to satisfy Article III standing under a particular statute. Under the civil provision of the Racketeer Influenced and Corrupt Organization Act (“RICO”), a potential plaintiff must be injured “in his business or property” “by reason of” certain predicate acts as defined by the statute.3 Within the past two decades, there has been a wave of opioid litigation against major pharmaceutical corporations.4 A current split among circuit courts of appeals is whether plaintiffs should be able to sue to recover money they would not have paid to pharmaceutical corporations but-for certain misrepresentations.

Most criticism of the system of presidential election focuses on the Electoral College, and most criticism of the Electoral College focuses narrowly on the shortcomings of the Electoral College itself. The objections are well known. The most basic is an objection of political principle. The Electoral College, on its face, deviates from the democratic principle of one-person-one-vote and gives the vote of a citizen in Wyoming approximately the same weight as 3.5 votes in California. The result is an unequal distribution of political power, both between citizens and among states. We can call this the 3.5:1 problem.

This essay, though written by a historian of the American Revolution and Constitution, will not dwell at length on the origins and early evolution of the presidential election system – subjects that its author has already examined elsewhere. An opening section will nonetheless summarize and stipulate key historical points essential to the overall argument. Two of these will be stated rather concisely; the third, which relates to early experiments in manipulating the rules for appointing electors, will be developed at somewhat greater length, in part because our fascination with the 1800 tie vote of running-mates Thomas Jefferson and Aaron Burr has led us to slight other developments of equal importance. The emphasis will then shift to the concerns, principles, and ideas that should guide or inform any effort to replace the existing state-based system of presidential elections with a National Popular Vote (NPV). This goal can be attained only through an Article V amendment, and not via the National Popular Vote Interstate Compact (NPVIC), which is a Rube Goldberg constitutional conjuring trick that is fatally flawed.

The shocking events of January 6, 2021, in Washington should spark legal reform. But the focus of this essay is not the storming of the Capitol. Rather, this essay focuses on the ill-considered legal mechanics for the presidential Electoral vote, through which members of Congress “objected” to the counting of votes for Joe Biden, who won the 2020 election, in the midst of months of haphazard litigation and vague claims of a “steal.” The system that American law uses to count presidential votes was not anticipated by the Framers of the Constitution and surely is not a sensible method for concluding the most important election in the world.

There is a crisis in American elections. A large and apparently growing percentage of Americans are simply unwilling to accept that an election lost by their preferred candidates was an honest result. On the political right, the typical cry is “fraud.” On the left, it is “vote suppression.” These beliefs are almost entirely disconnected from the facts. By almost any standard, fraud in American elections is relatively trivial and less common than it has been throughout much of history. And contrary to claims of “suppression,” there have never been fewer obstacles to voting in the United States.

The Supreme Court is empowered to restrict the exercise of legal action by the other two co-equal branches of government. The Court recently issued four successive decisions that stopped the Executive Branch in its tracks: holding that federal common law was federally displaced and could not address climate, then restricting Executive Branch regulatory “tailoring,” then blocking executive branch power due to failure to consider costs of its regulation, and finally enjoining executive branch regulatory authority over climate. Amid the current sprint to reduce carbon emissions by any means to preserve the climate, the Court’s legal restraints truncated federal government action regarding climate change.

DoorBot, a technology startup, featured on the fifth season of NBC’s hit entrepreneurial reality show, Shark Tank. It offered customers the ability to see, hear, and speak to anyone at their front door with its single product, the “video doorbell.” After the product pitch, Robert Herjavec, one of the investor-sharks, said “it freaks me out.” DoorBot did not secure a deal.

American democracy is under siege.  This is so because of the confluence of three trends: (1) demographic change and residential segregation, which increasingly have placed more racially diverse Democratic Party voters in cities and suburbs, while rural areas have become more white and Republican; (2) a constitutional structure—particularly the Electoral College, the composition of the Senate, and the use of small, winner-take-all legislative districts—that gives disproportionate representation to rural populations; and (3) the willingness of this rural Republican minority to use its disproportionate power to further entrench counter-majoritarian structures, whether through extreme partisan gerrymandering, increased voter suppression efforts, court-packing, or outright rebellion against the results of democratic elections. These three trends together pose an existential threat to the whole idea of democratic self-governance.  This Article therefore makes the case for heightened judicial scrutiny in order to protect democratic processes against partisan and discriminatory entrenchment.  In making this argument, we seek to revive the political process rationale for heightened judicial scrutiny.

As advocates push to expand the right to trial by jury in criminal cases, the Supreme Court should revisit the “petty offense” exception in light of the expansive web of collateral consequences that has developed in the past few decades. In Ramos v. Louisiana, the Court grappled with the question of stare decisis and overruled decades-old precedent on the constitutionality of non-unanimous jury verdicts, recognizing that the Court should be most willing to reconsider precedent in cases involving constitutional criminal procedure. At the same time, state legislatures should address the problem by extending the state right to jury trials to cover all criminal prosecutions. The implications of such changes would extend beyond a procedural reform that would affect the rights of individual defendants. Expansion of the jury trial right would constitute a meaningful structural reform in democratizing criminal justice at a time when such change is needed to establish the popular legitimacy of the criminal justice system.

The Article explains why the constitutional path to victory by religious foster care agencies that seek to place conditions in accepting foster parents, including Catholic Social Services in Fulton v. City of Philadelphia, should be one lit by rights of children, which the agencies should have standing to assert, rather than any rights of their own.  Courts should dismiss religious foster-care agencies’ First Amendment claims as simply inapposite, a category error, because the state is not constrained by First Amendment rights of third parties when acting in the fiduciary capacity that parens patriae authority entails.  It should also recognize, however, that children have Fourth and Fourteenth Amendment rights against the government’s seizing them and then treating them as distributable goods whose fate is influenced by solicitude for the sentiments and equality claims of aspiring foster parents.

Title VII of the Civil Rights Act of 1964 (“Title VII”) makes it unlawful to discriminate against an individual in employment “because of such individual’s race, color, religion, sex, or national origin.” The Supreme Court has since clarified that discrimination includes both harassment and stereotyping based on a protected class. Legal scholars have increasingly recognized and explored how intersectional discrimination, in which people are discriminated against on the basis of more than one trait or characteristic, relates to Title VII and other anti-discrimination laws. A key insight of intersectional theory is that this kind of discrimination is not merely additive (discrimination against Black women equals race discrimination plus sex discrimination), but that “categories may intersect to produce unique forms of disadvantage.” This Article argues that claimants can use the existing Supreme Court precedent of Oncale v. Sundowner Offshore Services, Inc. to contend that intersectional discrimination is a “reasonably comparable evil” to the single-basis discrimination contemplated by Congress in 1964, and therefore falls under the broad and flexible interpretation the Court has applied to Title VII’s “because of” language.