J. Joel Alicea, "Bruen Was Right," 174 U. Pa. L. Rev. (forthcoming 2025), sets forth a comprehensive defense of the text-history approach and rejection of means-scrutiny set forth in Justice Clarance Thomas' opinion in Bruen. A professor at the Columbus School of Law, Alicea is the director of the Center for the Constitution and the Catholic Intellectual Tradition.
Some scholars argue that Bruen was a mistake. An exception Alicea cites is William Baude & Robert Leider, "The General-Law Right to Bear Arms," 99 Notre Dame L. Rev. 1465 (2024). My own humble defense of Bruen is set forth in "Text and History, Means-Ends Scrutiny, and the Second Amendment," 24 Fed. Soc. Rev. 54 (2023). Alicea's article deserves a deep read about which I can only skim the surface here.
As Alicea explains, the larger significance of Bruen "is in its rejection of tests like strict or intermediate scrutiny that have loomed large in rights jurisprudence since the 1960s. In their place, Bruen substituted a text-and-history-based test for evaluating the constitutionality of arms regulations that, if successful in the Second Amendment domain, holds out the prospect of displacing the tiers of scrutiny and other judicial balancing tests elsewhere in constitutional law." But if this "most thoroughgoing attempt by the Court to do originalism in the area of constitutional rights" fails, "it calls into question originalism's capacity to transition from a critical posture to a governing one, at least in the rights space."
Before outlining the article, I'll mention two cases citing Alicea about which readers may already be familiar. In NRA v. Bondi (11th Cir. 2025) (en banc), Chief Judge William Pryor sought to justify Florida's law subjecting persons aged 18 to 20 to imprisonment for purchase of a firearm based on this supposed analogue: "Founding-era law precluded individuals under the age of 21 from purchasing arms because they lacked cash and the capacity to contract."
But Alicea added to the above quote: "That being said, … I have not come across evidence of a principle that was generally held to be part of the Second Amendment right but that failed to make its way into some form of positive law." In fact, neither the common law nor Founding-era statutory law made it a crime for a minor to buy a firearm, and indeed the Militia Act of 1792 required every male citizen 18 and over to "provide himself with a good musket or firelock." By relying on civil laws involving the capacity to contract, Chief Judge Pryor "view[ed] a tradition at too high a level of generality," as Alicea would say. Bruen's Footnote 11 cautions against this type of reasoning when it said "[t]o the extent there are multiple plausible interpretations of [the scope of our Second Amendment rights], we will favor the one that is more consistent with the Second Amendment's command."
The US Court of International Trade just issued a unanimous ruling in the case against Trump's "liberation day" tariffs filed by Liberty Justice Center and myself on behalf of five US businesses harmed by the tariffs. The ruling also covers the case filed by twelve states led by Oregon; they, too, have prevailed on all counts. All of Trump's tariffs adopted under the International Emergency Economic Powers Act of 1977 (IEEPA) are invalidated as beyond the scope of executive power, and their implementation blocked by a permanent injunction. In addition to striking down the "Liberation Day" tariffs challenged in our case (what the opinion refers to as the "Worldwide and Retaliatory Tariffs"), the court also ruled against the fentanyl-related tariffs imposed on Canada, Mexico, and China (which were challenged in the Oregon case; the court calls them the "Trafficking Tariffs"). See here for the court's opinion.
It is worth noting that the panel include judges appointed by both Republican and Democratic presidents, including one (Judge Reif) appointed by Trump, one appointed by Reagan (Judge Restani), and one by Obama (Judge Katzmann).
Here is the court's summary of its ruling, from its per curiam opinion (issued in the name of all three judges together):
The Constitution assigns Congress the exclusive powers to "lay and collect Taxes, Duties, Imposts and Excises," and to "regulate Commerce with foreign Nations." U.S. Const. art. I, § 8, cls. 1, 3. The question in the two cases before the court is whether the International Emergency Economic Powers Act of 1977 ("IEEPA") delegates these powers to the President in the form of authority to impose unlimited tariffs on goods from nearly every country in the world. The court does not read IEEPA to confer such unbounded authority and sets aside the challenged tariffs imposed thereunder.
From the very beginning, I have contended that the virtually limitless nature of the authority claimed by Trump is a key reason why courts must strike down the tariffs. See, e.g., my Lawfare article, "The Constitutional Case Against Trump's Trade War." I am glad to see the CIT judges agreed with our argument on this point!
The court elaborated further on the statutory point:
Underlying the issues in this case is the notion that "the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments." Federalist No. 48 (James Madison). Because of the Constitution's express allocation of the tariff power to Congress, see U.S. Const. art. I, § 8, cl. 1, we do not read IEEPA to delegate an unbounded tariff authority to the President. We instead read IEEPA's provisions to impose meaningful limits on any such authority it confers. Two are relevant here. First, § 1702's delegation of a power to "regulate . . . importation," read in light of its legislative history and Congress's enactment of more narrow, non-emergency legislation, at the very least does not authorize the President to impose unbounded tariffs. The Worldwide and Retaliatory Tariffs lack any identifiable limits and thus fall outside the scope of § 1702.
Second, IEEPA's limited authorities may be exercised only to "deal with an unusual and extraordinary threat with respect to which a national emergency has been declared . . . and may not be exercised for any other purpose." 50 U.S.C. § 1701(b) (emphasis added). As the Trafficking Tariffs do not meet that condition, they fall outside the scope of § 1701.
It also ruled that an unlimited delegation of tariff authority would be unconstitutional:
The Constitution provides that "[a]ll legislative Powers herein granted shall be vested in a Congress of the United States." U.S. Const. art. 1, § 1. Congress is empowered "[t]o make all Laws which shall be necessary and proper for carrying into Execution" its general powers. Id. § 8, cl. 18. The Constitution thus establishes a separation of powers between the legislative and executive branches that the Framers viewed as essential to the preservation of individual liberty. See, e.g., The Federalist No. 48 (James Madison). To maintain this separation of powers, "[t]he Congress manifestly is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested." Pan. Refining Co. v. Ryan, 293 U.S. 388, 421 (1935); see also Marshall Field & Co. v. Clark, 143 U.S. 649, 692 (1892).
The parties cite two doctrines—the nondelegation doctrine and the major questions doctrine—that the judiciary has developed to ensure that the branches do not impermissibly abdicate their respective constitutionally vested powers. Under the nondelegation doctrine, Congress must "lay down by legislative act an intelligible principle to which the person or body authorized to fix such [tariff] rates is directed to conform." J.W. Hampton, Jr., 276 U.S. at 409 (1928); see also Pan. Refining, 293 U.S. at 429–30. A statute lays down an intelligible principle when it "meaningfully constrains" the President's authority. Touby v. United States, 500 U.S. 160, 166 (1991)… Under the major questions doctrine, when Congress delegates powers of "'vast economic and political significance,'" it must "speak clearly." Ala. Ass'n of Realtors v. HHS, 594 U.S. 758, 764 (2021) (quoting Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014))….
The separation of powers is always relevant to delegations of power between the branches. Both the nondelegation and the major questions doctrines, even if not directly applied to strike down a statute as unconstitutional, provide useful tools for the court to interpret statutes so as to avoid constitutional problems. These tools indicate that an unlimited delegation of tariff authority would constitute an improper abdication of legislative power to another branch of government. Regardless of whether the court views the President's actions through the nondelegation doctrine, through the major questions doctrine, or simply with separation of powers in mind, any interpretation of IEEPA that delegates unlimited tariff authority is unconstitutional.
Nondelegation and major questions were crucial elements of our case against the tariffs, and I am happy to see they played a role in the decision.
The Court also rejected the government's claim that president has unreviewable authority to determine whether there is a "national emergency" and "unusual and extraordinary threat" justifying the invocation of IEEPA:
IEEPA requires more than just the fact of a presidential finding or declaration: "The authorities granted to the President by section 1702 of this title may only be exercised to deal with an unusual and extraordinary threat with respect to which a national emergency has been declared for purposes of this chapter and may not be exercised for any other purpose." 50 U.S.C. § 1701(b) (emphasis added). This language, importantly, does not commit the question of whether IEEPA authority "deal[s] with an unusual and extraordinary threat" to the President's judgment. It does not grant IEEPA authority to the President simply when he "finds" or "determines" that an unusual and extraordinary threat exists. Cf., e.g., Silfab Solar, 892 F.3d at 1349 (collecting cases involving "statute[s] authoriz[ing] a Presidential 'determination'"); United States v. George S. Bush & Co., 310 U.S. 371, 376–77 (1940).
Section 1701 is not a symbolic festoon; it is a "meaningful[] constrain[t] [on] the President's discretion," United States v. Dhafir, 461 F.3d 211, 216 (2d Cir. 2006) (internal quotation marks, alteration, and citation omitted). It sets out "the happening of the contingency on which [IEEPA powers] depend," and the court will give it its due effect. The Aurora, 11 U.S. (7 Cranch) 382, 386 (1813).
The court issued a permanent injunction against implementation of the various IEEPA tariffs. That means they are blocked with respect to all importers, not just the plaintiffs in the two cases.
There is more to the court's ruling, and I will have more to say soon (including about the appellate process, as the government will surely appeal). But the bottom line is a major victory in the legal battle against these harmful and illegal tariffs.
[I thought it would be fun to serialize my 1995 Yale Law Journal article "Cheap Speech and What It Will Do," written for a symposium called "Emerging Media Technology and the First Amendment.) Thirty years later, I thought I'd serialize the piece here, to see what I may have gotten right—and what I got wrong.]
[1.] The new distribution technology will do more than just make music cheaper and easier to get. It will also radically change what music is available.
I've already mentioned one way this will happen: The music databases will provide access to albums that stores otherwise wouldn't stock. Even if there are 50,000 fans of a particular kind of music throughout the country, a music store might expect there to be only a handful of these people among its customers. It can't afford to use shelf space for material that so few people want. But electronic databases can carry even albums that appeal to only a tiny fraction of the market. The result will be more diversity for the listeners (even if not all of them take advantage of this diversity).
But electronic home distribution will do more than eliminate the bottleneck of music stores. It will also greatly reduce the power of the music production companies (the "labels").
Electronic distribution will drastically lower up-front costs. Even today an artist can make a commercially viable master recording relatively cheaply. With electronic distribution the cost will be even lower-once the master is made, there are no tangible copy production, distribution, or sales costs. An artist will no longer have to persuade a production company that his product is worth the investment. He'll be able to create it and submit it to the electronic databases himself; and once it's in the databases, the work will be as available as if it were in every music store in the country.
Hoffman previously worked in the Blugold Beginnings office at the university, which provides support to low-income, first-generation, and other underrepresented students. In 2022, Blugold Beginnings merged with the Office of Multicultural Affairs to become the Multicultural Student Services department.
After Hoffman was appointed interim director of the new department, students, faculty, and staff objected to her appointment because she was white. Hoffman [sues] …, contending that the university … demoted Hoffman from her leadership position, … forced Hoffman to transfer to a different department, and then retaliated in various ways against Hoffman for filing a racial discrimination complaint….
In late January 2022, Diaz {the vice chancellor of Equity, Diversity, Inclusion, and Student Affairs} asked Hoffman to serve as interim director of the new MSS department and Hoffman accepted. Hoffman's appointment generated backlash from students. At open houses on February 14 and February 18, students asked Diaz why she "hired a white woman as the interim director" and questioned whether Diaz "personally fe[lt] that white staff can do as effective a job as a person of color, within a space for people of color." The student senate also released a resolution on February 28 expressing "concerns over placing white-identifying individuals in positions of interim leadership for major [equity, diversity, and inclusion] offices."
Some faculty and staff also expressed disapproval with Hoffman's appointment as interim director. In a private meeting with Diaz on February 11, non-white faculty members expressed concerns about the university placing white staff in positions formerly held by non-white staff. (It's disputed whether the faculty knew at this point that Hoffman was to be interim director of MSS.) After the student senate resolution was released, student coordinator Jensen said in a staff meeting that she agreed with the resolution. She also told Hoffman that Hoffman's white identity was "an issue" for Jensen. Hoffman says that staff members also "participat[ed] with the students" at the open houses, but Hoffman did not identify any specific statements made by staff members….
[I thought it would be fun to serialize my 1995 Yale Law Journal article "Cheap Speech and What It Will Do," written for a symposium called "Emerging Media Technology and the First Amendment.) Thirty years later, I thought I'd serialize the piece here, to see what I may have gotten right—and what I got wrong.]
[a.] What It Will Look Like
I want to start by discussing how the new technologies will change popular music. These changes may be less politically momentous than the similar changes that I think will happen in print and video. But the music industry will probably be the one that changes most quickly; and in any case, many of the things I say in this Section-about cost savings, increased choice, information overload, and so on-will apply equally well to the others.
The reasons for the changes will be very simple: There's lots of money in them. The existing music distribution system is inefficient, both for consumers and for musicians. For consumers, in particular, it has three problems:
Cost: Music costs more than it could. Consumers must pay about $8 to $15 for a new album, though musicians generally see less than ten percent of this in royalties.
Choice: Consumers get a smaller selection than they could-many titles, especially ones that are relatively old or that appeal to fairly small markets, aren't available in most places.
Convenience: To buy music, a consumer has to take the time and trouble to go to the store.
And these problems translate into problems for musicians. High cost, low availability, and the inconvenience of buying lead to fewer sales.
These inefficiencies aren't the result of some sinister plot or even of market irrationality. They are an inevitable consequence of the existing distribution system. People today must buy music on some tangible medium, such as tape or CD. This means they generally have to go to the music store (inconvenient), which has limited shelf space (lowering the choice). And the tangible medium has to be created, imprinted, distributed, and sold (costly).
President Donald Trump began his second term with a sweeping and much needed "firing spree" in which he went after the notorious independent agencies in the so-called Headless Fourth Branch of the Government. A National Labor Relations Board Commissioner and a Merit Systems Protection Board Commissioner, both of whom were protected by statutory clauses providing that they could only be fired for cause, were instead fired at will. The Commissioners whom Trump fired had secured an order from the U.S. Court of Appeals for the D.C. Circuit reinstating them in their jobs.
In an unsigned 6 to 3 order on May 22, the Supreme Court stayed the D.C. Circuit's reinstatement order, saying the plaintiffs were unlikely to prevail on the merits because they were exercising "executive power" in violation of Seila Law LLC v. Consumer Financial Protection Bureau, 591 U.S. 197 (2020). Justice Kagan's dissent quite accurately accused the six Republican appointed justices who were in the majority of implicitly overruling an infamous 90-year-old precedent, Humphrey's Executor v. United States, 295 U.S. 602 (1935).
Former Attorney General Ed Meese, in an address that he gave on February 27, 1986, swung for the fences and called for the overruling of Humphrey's Executor 39 years ago and an end to the headless Fourth Branch. Meese argued that independent agencies exercising "executive power" are unconstitutional since the Vesting Clause of Article II of the Constitution provides that "The executive Power shall be vested in a President of the United States of America" and not also in a headless Fourth Branch. A generation of Federalist Society scholars, including me and especially, Professor Saikrishna Prakash of the University of Virginia School of Law, have followed Ed Meese's call and have urged the overruling of Humphrey's Executor. See, e.g., Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive: Presidential Power from Washington to Bush (2012); Steven G. Calabresi & Saikrishna B. Prakash, The President's Power to Execute the Laws, 104 Yale Law Journal 541 (1994).
Three people deserve great credit for this enormous victory in a campaign to get Humphrey's Executor overturned that has lasted for 39 years. First, and most obviously, credit goes to President Donald Trump for having the resolve to fire independent agency commissioners, which no recent other President—including even Ronald Reagan—had done. Second, credit goes to Reagan's former Attorney General Ed Meese for boldly pointing out what needed to be done 39 years ago, for which he was thrashed then by the press and even by Supreme Court Justice Sandra Day O'Connor and his own Solicitor General, Charles Fried. Third, a huge amount of credit goes to President Trump's first-term White House Counsel, Don McGahn, who helped President Trump in appointing Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Like Ed Meese 40 years ago, Don McGahn made it a top priority to appoint Supreme Court justices and lower federal court judges who believed in the theory of "The Unitary Executive" and who would work to get rid of President Franklin D. Roosevelt's oppressive, undemocratic, and unconstitutional Administrative State.
Today the Cato Institute held a virtual event on "Tariffs, Emergencies, and Presidential Power." Cato Institute Senior Fellow Walter Olson and I discussed Trump's "Liberation Day" tariffs attempting to leverage the International Emergency Economic Powers Act of 1977 (IEEPA), the lawsuit against them brought by the Liberty Justice Center and myself on behalf of five US businesses harmed by the tariffs, nondelegation, the general problem of abuse of emergency powers, and other related issues. Brent Skorup of Cato (who is also a former student of mine!) moderated, and asked some great questions. Here is the video:
I have gone over the legal issues raised by Trump's IEEPA tariffs in greater detail in my Lawfare article, "The Constitutional Case Against Trump's Trade War." See also my post on why these tariffs threaten the rule of law, an issue we discussed at the Cato event.
The causal chain contains at most two links, and it is certainly not highly attenuated! …
Please! …
I agree! …
Taken together, the provisions constitute a staggering punishment for the firm's protected speech! The Order is intended to, and does in fact, impede the firm's ability to effectively represent its clients! …
Thus, to the extent the President does have the power to limit access to federal buildings, suspend and revoke security clearances, dictate federal hiring, and manage federal contracts, the Order surpasses that authority and in fact usurps the Judiciary's authority to resolve cases and sanction parties that come before the courts! …
A (relatively) short excerpt from today's long decision by Judge Richard Leon (D.D.C.) in Wilmer Cutler Pickering Hale & Dorr LLP v. Executive Office of the President; there's a lot going on here, but in general I agree with the First Amendment and Sixth Amendment arguments (I'm not sure either way about the others):
The cornerstone of the American system of justice is an independent judiciary and an independent bar willing to tackle unpopular cases, however daunting. The Founding Fathers knew this! Accordingly, they took pains to enshrine in the Constitution certain rights that would serve as the foundation for that independence. Little wonder that in the nearly 250 years since the Constitution was adopted no Executive Order has been issued challenging these fundamental rights. Now, however, several Executive Orders have been issued directly challenging these rights and that independence. One of these Orders is the subject of this case. For the reasons set forth below, I have concluded that this Order must be struck down in its entirety as unconstitutional. Indeed, to rule otherwise would be unfaithful to the judgment and vision of the Founding Fathers! …
"[T]he First Amendment prohibits government officials from retaliating against individuals for engaging in protected speech." WilmerHale alleges that "[t]he Order blatantly defies this bedrock principle of constitutional law." I agree!
To establish First Amendment retaliation, WilmerHale must plausibly allege and then prove: "(1) [WilmerHale] engaged in conduct protected under the First Amendment; (2) [defendants] took some retaliatory action sufficient to deter a person of ordinary firmness in [WilmerHale's] position from speaking again; and (3) a causal link between the exercise of a constitutional right and the adverse action taken against [WilmerHale]."
WilmerHale represents a range of clients in litigation. This advocacy is unquestionably protected conduct under the First Amendment. See Legal Servs. Corp. v. Velazquez (2001) (treating "the analysis of certain legal issues" and their "presentation to the courts" as "speech and expression"); Lehnert v. Ferris Faculty Ass'n (1991) ("We long have recognized the important political and expressive nature of litigation."); McDonald v. Smith (1985) ("[F]iling a complaint in court is a form of petitioning activity ….")….
The WilmerHale Order is, on its face, retaliation for the firm's protected speech. Indeed, § 1 outlines the motivations of the Order, including WilmerHale's pro bono practice, "obvious partisan representations to achieve political ends," and involvement in immigration and election litigation.
No professors are known to have lost their tenure at Harvard since the 1940s, when the American Association of University Professors formalized rules of termination, according to The Harvard Crimson, the student newspaper.
Gino's lawsuit against Harvard related to Harvard's earlier disciplinary actions is still pending, but her defamation claims (including ones against authors at Data Colada, who had raised the allegations) were dismissed in September.
From Justice Alito's dissent from the denial of certiorari in L.M. v. Town of Middleborough, joined (with a twist) by Justice Thomas:
This case presents an issue of great importance for our Nation's youth: whether public schools may suppress student speech either because it expresses a viewpoint that the school disfavors or because of vague concerns about the likely effect of the speech on the school atmosphere or on students who find the speech offensive. In this case, a middle school permitted and indeed encouraged student expression endorsing the view that there are many genders. But when L.M., a seventh grader, wore a t-shirt that said "There Are Only Two Genders," he was barred from attending class. And when he protested this censorship by blocking out the words "Only Two" and substituting "CENSORED," the school prohibited that shirt as well.
The First Circuit held that the school did not violate L.M.'s free-speech rights. It held that the general prohibition against viewpoint-based censorship does not apply to public schools. And it employed a vague, permissive, and jargon-laden rule that departed from the standard this Court adopted in Tinker v. Des Moines Independent Community School Dist. (1969).
The First Circuit's decision calls out for our review….
From today's dissent from denial of certiorari by Justice Gorsuch, joined by Justice Thomas, in Apache Stronghold v. U.S.:
For centuries, Western Apaches have worshipped at Chí'chil Biłdagoteel, or Oak Flat. They consider the site a sacred and "direct corridor to the Creator." It is a place where tribal members conduct "religious ceremonies that cannot take place elsewhere." Recognizing Oak Flat's significance, the government has long protected both the land and the Apaches' access to it.
No more. Now, the government and a mining conglomerate want to turn Oak Flat into a massive hole in the ground. To extract copper lying beneath the land, they plan to blast tunnels that will result in a crater perhaps 1,000 feet deep and nearly two miles wide. "It is undisputed" that the government's plan will permanently "destroy the Apaches' historical place of worship, preventing them from ever again engaging in religious exercise" at Oak Flat.
Seeking to halt the destruction of the Apaches' sacred site, Apache Stronghold, a nonprofit organization, sued under the Religious Freedom Restoration Act of 1993 (RFRA). That law prevents the federal government from "substantially burden[ing] a person's exercise of religion," unless that burden represents "the least restrictive means of furthering [a] compelling governmental interest." In a sharply divided en banc decision, the Ninth Circuit rejected Apache Stronghold's challenge. Though the government's plan will result in the destruction of an ancient sacred site, the Ninth Circuit reasoned, that plan does "not impose a substantial burden on religious exercise."
Apache Stronghold asks us to review the Ninth Circuit's extraordinary conclusion. But the Court today turns aside the group's request. Respectfully, that is a grave mistake. This case meets every one of the standards we usually apply when assessing petitions for certiorari: The decision below is highly doubtful as a matter of law, it takes a view of the law at odds with those expressed by other federal courts of appeals, and it is vitally important. Before allowing the government to destroy the Apaches' sacred site, this Court should at least have troubled itself to hear their case….
This episode features a conversation with Cass Sunstein, the Robert Walmsley University Professor at Harvard Law School and former administrator of the White House Office of Information and Regulatory Affairs. His recent working paper, "'Our Money or Your Life!' Higher Education and the First Amendment," explores the First Amendment constraints federal funding to American universities.
In the last few weeks, the Trump administration has made several announcements that it is withholding a significant amount of federal funds from specific universities, notably Columbia University and Harvard University, and that those funds will not be released until those universities comply with a set of demands. Harvard received a letter on April 11 demanding changes in Harvard's governance, faculty hiring practices, student admissions practices, viewpoint diversity among the faculty, and student disciplinary policies, among other things. On May 5, the Secretary of Education sent a letter to Harvard informing the university that the federal government will award it no grants for scholarly research in the future. Reportedly, there is more than $2 billion dollars at stake.
On the podcast we talk through what the Trump administration is doing, what the consequences are for Harvard and other affected universities, and what constitutional issues are raised by the administration's actions in denying Harvard access to federal research funds. In the process, we get a short course on First Amendment doctrine relating to viewpoint discrimination and unconstitutional conditions.
This month, Washington State enacted a law requiring clergy to report suspected child abuse or neglect, even when the information is obtained through a confidential spiritual communication, like Confession in the Catholic Church. The new law seems clearly unconstitutional under current doctrine; that's the easy part. But the deeper issues are more interesting and more difficult, and they have been with us for a very long time.
The new law departs significantly from the approach in most other states, even those that mandate clergy reporting. Most of those states preserve the traditional clergy-penitent privilege while mandating that clergy report abuse they learn about in other contexts. What's more, Washington's law expressly preserves other professional privileges, like the attorney-client privilege, but explicitly eliminates the clergy-penitent privilege. That unequal treatment presents a serious problem under current free exercise law.
Under cases like Fulton v. City of Philadelphia and Tandon v. Newsom, which adopt what scholars have called the "most favored nation" approach, laws that provide exemptions for secular conduct but not analogous religious conduct must survive strict scrutiny. That means the government must show that the law advances a compelling state interest and that it uses the least restrictive means of doing so. Punishing child abuse is undoubtedly a compelling state interest, but if the law allows attorneys to withhold relevant information while requiring clergy to disclose it, the state will have difficulty justifying its choice.
The issues surrounding the clergy-penitent privilege have been with us a long time. In one of the earliest American cases on religious liberty, People v. Philips (1813), a Catholic priest refused to testify in a criminal trial about a penitent who had confessed to returning stolen goods. The state argued that public safety required all citizens to cooperate with the criminal process and that religion was no excuse. The court, however, sided with the priest, reasoning that public safety did not justify requiring him to violate a core "ordinance" of his faith. Confession might in fact encourage culprits to come clean, as had happened in Philips; the stolen goods had been returned. What's more, the court noted that the state already recognized an attorney-client privilege, and implied that religious privileges deserved equal respect.Read More
In Fall 1994, I wrote an article called "Cheap Speech and What It Will Do," which became my first publication as a law professor. It was for a Yale Law Journal symposium called "Emerging Media Technology and the First Amendment," which was about the then-emerging technology of the Internet. (Fun fact: Back then, we would hammer out our manuscripts with chisels on clay tablets.) Thirty years later, I thought I'd serialize the piece here, to see what I may have gotten right—and what I got wrong, from "infobahn" to people printing out daily newsletters to read them.
I've omitted most of the footnotes—you can see them here—but I've moved a few of the substantive ones into text, marking them (as I usually do for moved text) with { and }. This morning, I begin with the Introduction.
[* * *]
It's easier for the rich to speak than it is for the poor. It's also easier to speak if what you're saying, or singing or drawing, has mass appeal. Publishers will only invest in a product if the expected returns exceed the expected costs. If your work lacks a wide audience, publishers may be hard to find; and even if you can get a small publisher to back you, distributors may be unwilling to let you use their scarce shelf space. Getting access to nationwide radio and TV is harder still. People with unorthodox tastes lose out, and even those in the mainstream suffer when potentially interesting work isn't produced because of (rational) predictions that it won't be a hit.
Many have pointed to these problems—the bias in favor of speech of the rich, or of speech endorsed by the rich, and the relative blandness of much mass media. The perfect "marketplace of ideas" is one where all ideas, not just the popular or well-funded ones, are accessible to all. To the extent this ideal isn't achieved, the promise of the First Amendment is only imperfectly realized. And some suggest that because current First Amendment doctrine is premised on an open-market metaphor that isn't valid, the law should be adapted to this brutal reality.
My thesis is that (1) these two problems are directly linked to the fact that speaking today is expensive; (2) new information technologies, especially the "information superhighway" or "infobahn," will dramatically reduce the costs of distributing speech; and, therefore, (3) the new media order that these technologies will bring will be much more democratic and diverse than the environment we see now. Cheap speech will mean that far more speakers—rich and poor, popular and not, banal and avant garde—will be able to make their work available to all.
Sign up here to receive all of the new Volokh Conspiracy posts in a daily e-mail.
The All-Argentina Issue is Here
New from Reason: a look into what Javier Milei
has accomplished and what it will take to make the most of Argentina’s window for real change. Out now
for subscribers.
