Some government action punishes speech after it happens. A far smaller category stops speech before it ever reaches an audience, and that difference is the whole of prior restraint doctrine.…
Prior Restraint and Licensing: The Freedman Safeguards
Symbolic Conduct and the O’Brien Test: The Pivot Question
Some of the most memorable speech cases involve no words at all: an armband worn to school, a draft card set alight, a flag burned on a pavement. Conduct of…
Government Employee Speech: Garcetti and Pickering Rules
A public employer is both an employer and an arm of the state, and the doctrine governing its employees’ speech tries to hold those two roles apart. It does so…
Commercial Speech and the Central Hudson Four-Part Test
Advertising was once thought to fall outside the First Amendment entirely. It no longer does, but it occupies a middle position: protected, though at an intermediate tier, and only once…
One Person, One Vote: Voting Rights Under Equal Protection
Two related doctrines sit together in the Equal Protection Clause. The first treats voting as a fundamental right, so that any condition placed on the franchise is reviewed under strict…
Alienage Classifications: Strict Scrutiny and Its Pockets
Alienage is one of the few areas of equal protection where the tier does not follow from the classification alone. It follows from who is doing the classifying and what…
Second Amendment: The Bruen Text-and-History Standard
For nearly two centuries the Second Amendment was treated as a provision about militias. Courts read the prefatory clause as a limit on the operative clause, and a challenge to…
Incorporation Doctrine: Which Rights Bind the States
The Bill of Rights was written against the federal government. Read in 1791, it said nothing at all about what a state legislature or a county sheriff could do, and…
Full Faith and Credit: Recognising Sister-State Judgments
A creditor wins fifty thousand dollars in one state and the debtor moves to another. Does the second state have to collect it? The answer is yes, and it is…
The Complete Auto Test: Taxing Interstate Commerce
States need revenue, and interstate businesses are attractive targets. The Commerce Clause does not stop a state from taxing commerce that crosses its borders, but it does insist the tax…