This article explores the complex interplay between race and free speech in American history, highlighting how speech serves both as a catalyst for racial justice and a vehicle for racial harm. It traces the use of free speech in the abolitionist movement, where activists face Southern suppression and federal inaction but ultimately shift national discourse. The article examines how the civil rights movement of the 1950s and 1960s uses speech, protest, and litigation to challenge racial segregation, culminating in landmark Supreme Court cases affirming expressive rights. It also discusses Latinx advocacy, focusing on language rights and anti-immigrant ordinances, and how courts address these challenges. Finally, the article assesses hate speech jurisprudence, underscoring that despite efforts to restrict racist expression, courts consistently protect such speech under the First Amendment unless it constitutes a true threat.

A review of The Constitution of the War on Drugs. By David Pozen.

Abstract The premise of the Court’s decision in Dobbs v. Jackson Women’s Health Organization is that Roe v. Wade was “egregiously wrong” and “exceedingly weak.” This essay says that Justice Harry Blackmun got it exactly right in addressing the three key questions: Are rights of privacy and autonomy protected even if not enumerated in the Constitution? Do laws prohibiting abortion infringe on privacy and autonomy? Does the state have a compelling interest in prohibiting abortions? A close reading of the Court’s opinion in Dobbs reveals that the Court agrees with Justice Blackmun on the first two issues, and it is only its judgment that states can regard the fetus as “potential life” that explains the overruling of Roe. But this decision is based on a religious judgment inappropriate for the Court to make.

Professor Colb addressed issues of privacy and the Fourth Amendment in many of her articles. A key aspect of her scholarship focused on the appropriate test for determining what is a search under the Fourth Amendment. Her article-A World Without Privacy: Why Property Does Not Define the Limits of the Right Against Unreasonable Searches and Seizures-is particularly important now because of a possible shift in the Court away from a focus on privacy in determining what is a search. In Carpenter v. United States, the Court, in a 5-4 decision, found that the police acquiring large amount of cellular location information is a search within the meaning of the Fourth Amendment. The Court applied the test from Katz v. United States and found an infringement of the reasonable expectation of privacy. Justice Thomas, in a dissenting opinion, wrote a scathing attack on Katz and called for it to be replaced by a focus solely on whether there is an invasion of property rights. Justice Gorsuch, too, called for use of a property-based approach. The change in the composition of the Court since then, notably the replacement of Justice Ginsburg (who was in the majority) with Justice Barrett, raises the real possibility that Carpenter would come out differently today. That, in itself, is troubling in terms of protection of privacy from new technology. Even more disturbing is the likelihood that Justice Barrett, like the other originalist Justices, Thomas and Gorsuch, would adopt an approach to the Fourth Amendment that focuses just on whether there is an infringement of property rights. Building on Professor Colb's analysis from several of her articles, I argue that the Court's approach in Katz is desirable and is the proper framework for Fourth Amendment analysis. The criticism of Katz, and the advocacy of a property approach, is based on an originalist and formalist approach to the Fourth Amendment that would be highly undesirable. A focus on the reasonable expectation of privacy, as Professor Colb argued in What is a Search: Two Conceptual Flaws in Fourth Amendment Doctrine and Some Hints of a Remedy, would lead to a more robust Fourth Amendment and provide a desirable resolution of many issues that continue to arise.

The Supreme Court has created an elaborate framework for free speech analysis involving distinctions between content-based and content -neutral government regulations, as well as the application of the levels of scrutiny. But the Court also has created some free speech "dead zones " where First Amendment principles don't apply at all and the government always wins. This Article identifies some of these free speech dead zones- for speech of government employees on the job in the scope of their duties, for government speech, and for speech related to the military. The Article argues that free speech dead zones are undesirable and unnecessary.

Two of the most important issues defining the Trump Administration were the President’s response to the COVID-19 pandemic and the Administration’s dealing with immigration issues. These have been regarded, in the popular press and in the scholarly literature, as unrelated. But there is a key common feature in the Trump Administration’s response: racism and xenophobia has shaped both the handling of the public health crisis and immigration issues. Understanding the underlying basis for the Trump Administration’s reaction to both issues helps to clarify the fallacies, indeed the tragedies in its actions, and the legal errors that have been made.

Throughout American history, whenever there has been a crisis the response has been a deprivation of rights. Today, the United States is in the midst of the worst health crisis in over a century. As of this writing, over 500,000 people have died. The pandemic reveals underlying institutional and infrastructural problems in society. We argue, based on history, there is every reason to fear that the pandemic could be used as justification for a massive deprivation of rights and abuses. Part I of this Article sets the context: Throughout American history, whenever there has been a crisis the response has been an unnecessary loss of liberty. Part II describes how courts have widely used the test from Jacobson v. Massachusetts in analyzing the government's restrictions that have been imposed in dealing with COVID-19 and explains why this is undesirable. Part III argues that the usual tests for constitutional rights should be applied in analyzing particular government restrictions and applies this in considering the restrictions that have been imposed in four areas: speech, religion, abortion, and business closure.

Two of the most important issues defining the Trump Administration were the President's response to the COVID-19 pandemic and the Administration's dealing with immigration issues. These have been regarded, in the popular press and in the scholarly literature, as unrelated. But there is a key common feature in the Trump Administration's response: racism and xenophobia has shaped both the handling of the public health crisis and immigration issues. Understanding the underlying basis for the Trump Administration's reaction to both issues helps to clarify the fallacies, indeed the tragedies in its actions, and the legal errors that have been made.

The relationship between the government and religion is deeply divisive. With the recent changes in the composition of the Supreme Court, the First Amendment law concerning religion is likely to change dramatically in the years ahead. The Court can be expected to reject the idea of a wall separating church and state and permit much more religious involvement in government and government support for religion. The Court is also likely to expand the rights of religious people to ignore legal obligations that others have to follow, such laws that require the provision of health care benefits to employees and prohibit businesses from discriminating against people because of their sexual orientation. This book argues for the opposite and the need for separating church and state. After carefully explaining all the major approaches to the meaning of the Constitution’s Religion Clauses, the book argues that the best approaches are for the government to be strictly secular and for there to be no special exemptions for religious people from neutral and general laws that others must obey. The book argues that this separationist approach is most consistent with the concerns of the Founders who drafted the Constitution and with the needs of a religiously pluralistic society in the 21st century.

In National Institute of Family Life Advocates v. Becerra, the Supreme Court said that a preliminary injunction should have been issued against a California law that required that reproductive healthcare facilities post notices containing truthful factual information. All that was required by the law was posting a notice that the state of California makes available free and low-cost contraception and abortion for women who economically qualify. Also, unlicensed facilities were required to post a notice that they are not licensed by the state to provide healthcare. In concluding that the California law is unconstitutional, the Court's decision has enormously important implications. It puts all laws requiring disclosures in jeopardy because all, like the California law, prescribe the required content of speech. All disclosure laws now will need to meet strict scrutiny and thus are constitutionally vulnerable. Moreover, the ruling is inconsistent with prior Supreme Court decisions that allowed the government to require speech of physicians intended to discourage abortions. The Court ignored legal precedent, failed to weigh the interests at stake in its decision, and applied a more demanding standard based on content of speech. But NIFLA v. Becerra is only secondarily about speech. It is impossible to understand the Court's decision in NIFLA v. Becerra except as a reflection of the conservative Justices' hostility to abortion rights and their indifference to the rights and interests of women, especially poor women. In this way, it is likely a harbinger of what is to come from a Court with a majority that is very hostile to abortion.

In this Article, we scrutinize the Trump administration’s ban on transgender individuals serving in the military and critique the Supreme Court’s unusual move in intervening in the matter by lifting the injunctions in place by lower courts. The Supreme Court’s actions signal a worrying time ahead. As we articulate in this Article, the Supreme Court’s decision to lift the injunctions now allows unjustified discrimination against transgender individuals and likely signals a significant shift in the Supreme Court on LGBTQ issues. For many LGBTQ advocates, the Supreme Court’s decision was a stunning defeat, particularly in light of a line of Court decisions advancing same sex equality. Yet, the constitutional gains related to sex and LGBTQ equality, particularly as evidenced through Supreme Court victories, may obscure the retrenchment of discrimination yet to come with a divided Court that splits along ideological lines. We predict that rather than building upon Justice Anthony Kennedy’s legacy in articulating and advancing rights for LGBTQ persons, the Court’s decision may signal a new era marked by the preservation of discrimination. Our thesis is that the Trump Administration’s ban on transgender individuals serving in the military is based on prejudice and bias, lacking any justification. Unfortunately, the Supreme Court’s intervention to lift the preliminary injunctions bodes poorly for how the Court will deal with this issue and other LGBTQ issues to come. In Part I, the Article situates the transgender military ban as continuing the history of military discrimination against LGBTQ individuals. In Part II, we argue that the transgender military ban is unjustified by any legitimate purpose as compellingly articulated by the district court and as demonstrated by empirical evidence. In Part III, the Article turns to the Supreme Court and its abuse of the discretion of review. We articulate why the Court’s unusual lifting of the district courts’ injunctions was unjustified, particularly as the Court acted before Court of Appeals decisions. Finally, in Part IV, we forecast the Court’s lifting the injunctions as likely reflecting a major shift on the Court as to LGBTQ issues. Without Justice Kennedy, we warn, the progress made toward LGBTQ equality may be vulnerable.

In June of 2017, the U.S. Supreme Court issued one of its first major church-state rulings in some time. In Trinity Lutheran Church of Columbia, Inc. v. Comer, it held that the federal Free Exercise Clause required the State of Missouri to provide direct funding to an arm of a church despite an anti-establishment clause in the Missouri Constitution which barred it. This article argues that the decision was contrary to American constitutional history at both the federal and state level, was not faithful to Court precedent in this area, and was contrary to sound constitutional policy in the area of church-state relations. Most importantly, it argues that the Court’s reasoning will open the door to increased governmental funding of churches and other devotional communities, all to the detriment of a healthy separation of church and state that is vital for religion to thrive and the state to properly perform its functions.