I’ve spent my entire career, first as a religious liberty litigator, then an author and public speaker, and now as a law professor, inside one question: Who counts as an American, and what do we owe each other once we’ve decided?

I didn’t choose the question. It chose me. As a young adult, I saw it in its ugliest question when a mosque in my hometown – designed by my late father – was vandalized. 51 bullets in its golden dome, sending the message: You do not belong. I interpreted the lesson differently: We ALL belong, but our rights won’t protect themselves. As a lawyer, I defended people of every faith, evangelical Christians, Sikhs, Native Americans, Jews, Muslims.

Even in the court room, though, I saw the hypocrisy, the hatred. I watched opposing counsel stand up in an American courtroom and argue that my client’s faith wasn’t really a religion at all. That it fell outside the First Amendment entirely. The argument sounded technical. It wasn’t. It was an argument about belonging, dressed up as a legal technicality.

That’s true of most of our biggest fights. Religion and speech. Equal protection and bodily autonomy. Who gets to teach what to whose kids. On the surface, they’re disputes about legal rules. Underneath, they’re disputes about who belongs here and on what terms.

Of course, the rules matter. They’re where the real decisions get made, quietly, in language designed to keep most people out of the conversation. But here’s what years of engaging public audiences across the nation have taught me: the human factor underneath these fights is almost always anxiety. People feel their place in this country slipping. Some respond by reaching for the law as a shield. Some reach for it as a sword. Most of us just feel the ground moving and don’t know what to trust.

The public conversation gives us two ways to cope. We can pick a team, absorb its talking points, and treat every Supreme Court term like a sporting event. Or we can tune out entirely, because the law feels like a private language spoken by people who don’t have us in mind. The first leaves us whipped up but uninformed. The second leaves the most important decisions about our lives to be made out of sight, by people counting on our inattention.

I think there’s a third way. It starts with seeing rights the way I do.

Rights are structures, not slogans. They have load-bearing parts and ornamental ones. Foundations that hold, and joints that give way under pressure. The shifts that matter usually happen out of sight: in a footnote, a standard of review, a quiet change in who bears the burden of proof. I called this publication The Architecture of Rights because I don’t think you should have to be a lawyer to see how the building stands up. Or where the cracks are forming.

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What This Is About

My goal is to give you the structural view. When a ruling drops or a controversy erupts, I want you to be able to look past the headline and see what changed, what didn’t, and why it matters for people like you. Not the version designed to scare you. Not the version designed to recruit you. The accurate one.

Maybe you read every Court decision the day it comes down. Maybe you only catch the news when a case goes viral. Maybe you’ve simply been talked down to, or whipped up, one too many times. Either way, you’re who I’m writing for.

What You’ll Find Here

• Essays on the constitutional questions shaping American life: religion, speech, equality, belonging. Plain language, with the nuance the headlines leave out.

• Current events analysis when the Court rules or a controversy breaks, so you understand what actually happened before the takes harden.

• Office Hours, where I walk you through the rules because, again, the rules matter.

• Audio versions of posts, for those who’d rather listen than read.

No jargon. No panic. No ideological cheerleading.

I hope you’ll join me.

With gratitude,

Asma

Americans argue about religion the way other countries argue about soccer. Constantly, loudly, and with a conviction that the other side is not just wrong but a threat to the republic. The arguing itself is seen as a threat to the republic. But in fact, it is not a sign the system is breaking. The arguing is the system.

A nation of two hundred faiths and no established church does not hold together because everyone agrees. It holds because we spent two and a half centuries building a durable machinery for disagreeing without splitting apart. Religious accommodation is a big part of that machinery, and it is the quiet success story almost nobody bothers to tell.

The American bargain has always run like this. We hold people to general laws, and we also leave room for conscience wherever we reasonably can. We carve the Amish out of compulsory schooling. We let the Quaker refuse the draft. We tell a baker, a pharmacist, an order of nuns that the law sometimes bends around a sincere belief, and just as often that it does not. The line moves. Courts widen it, then narrow it, then widen it again. People sue. People lose. People come back and try a better argument. The renegotiation looks like chaos from outside. It is how a country absorbs wave after wave of difference without tearing in half.

Take the kirpan, the small ceremonial blade that initiated Sikhs wear as an article of faith. In the 1990s, three Sikh children in Livingston, California were locked out of school for carrying one. It could have ended in a flat ban or a flat surrender. A federal court found the middle: a blade blunted and stitched into its sheath, and no classroom descended into knife fights. A decade later an IRS analyst in Houston, Kawal Tagore, was marched out and fired over a kirpan duller than the office butter knife, in a building that cheerfully let in scissors and cake knives. She sued. The government fought her at first, then backed down and changed its rules across the whole country so that Sikh employees could wear their kirpans at work. The two sides clashed, and then they reached a compromise both could live with. That back-and-forth, ending in a workable arrangement, is exactly what the American system is built to do.

And it is not, whatever the cynics insist, a special favor smuggled in for minorities. The loudest exemption-seekers in modern America are Christians. Think of the business owners and nuns who went to court rather than cover birth control in their employee health plans, the bakers and web designers who did not want to work on same-sex weddings, and the churches that insist on choosing their own ministers without the government looking over their shoulder. Agree or disagree with any one of those fights, the lesson is the same. Accommodation is not a special break for outsiders. It is a basic feature of a free society that takes conscience seriously, open to all and claimed by all in turn.

The loudest voices keep stepping over this basic fact: Law in a free society is not a machine that stamps an identical rule on every head. It rests on moral judgment, on the slow and constant work of weighing one good against another. That is why every functioning legal system is shot through with exceptions, defenses, conscientious objection. An exception does not prove the rule is rotten. It usually means someone did the moral arithmetic and decided that crushing a particular conscience was not worth what a perfectly uniform rule would buy.

Which is what makes the reaction across the Atlantic so instructive. A horrific murder in England, by a man who happened to be Sikh and lied that his weapon was religious, has set off a campaign to ban the kirpan outright, even though his blade was never a kirpan and the exemption never shielded him. Over at Fraser Nelson’s Substack, where I have been reading the comments, the mood is not negotiation but demolition. One law for everyone, no exceptions, and anyone who wants an exception can go live elsewhere. If there is a moral case for an exemption, one reader proclaimed, it should not be the law at all. Another reader declares that cohesion can only form around sameness. The all-purpose reply to any nuance is a one-word “Rubbish.”

None of this is just a bad day in a comment section. It is the local weather of a larger storm. Across Europe, populist and nationalist movements are gaining ground on a version of the same promise, that a nation holds together only by refusing to bend, and that every accommodation for a minority is a concession the majority cannot afford. The argument that began with one murder slots neatly into that wider mood, where the very idea of pluralism is cast as the threat.

Each of those moves sounds tough and clarifying. Each one is really a refusal to do the work. “No exceptions ever” is not the summit of principle. It is what you reach for when you would rather not weigh competing goods. “Cohesion only around sameness” does not describe any free society that has ever existed. It describes the ones that stopped being free. The one-word “Rubbish,” aimed at the idea that law rests on moral judgment at all, is the same move in shorter form. But that idea is not soft or naive. Every law already reflects a choice about what matters and whom to protect, and a free society is always weighing when to bend a general rule for a sincere belief that does not fit it. Brushing all of that aside as rubbish does not make you a hard-headed realist. It makes you blind to the thing holding your own country together.

The American experiment is the standing rebuttal. We are more religiously varied than Britain, we fight about it harder, and we have not come apart, precisely because at our best we treat accommodation as a negotiation toward coexistence rather than a surrender. None of this means we have it figured out. The line is contested every day, the compromises are imperfect, and plenty of our fights are ugly. We are a work in progress, which is the only honest thing a free and growing society can be.

But the progress is real, and the lesson is plain. You do not build a durable, pluralistic country by insisting that everyone be the same. You build it by getting good at the argument, and by remembering that the argument, carried on in good faith, is not the enemy of coexistence. It is the practice of it.

Fraser and I went a few rounds on all of this in person. Here is the full conversation.

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On the May 19, 2026, episode of 1A, produced in partnership with Religion News Service, the show took up the contested relationship between religion, democracy, and American identity at a moment when the phrase “one nation under God” has reentered the political spotlight. The conversation was framed by a recent national prayer gathering on the National Mall, backed by the White House and centered overwhelmingly on conservative Christian voices, including members of the Trump administration and congressional leadership. Against that backdrop, the episode explored what the founders intended by religious liberty, how church-state separation has evolved, and whether contemporary appeals to America’s religious heritage are expanding freedom of conscience or narrowing the meaning of full civic belonging.

I emphasized how appeals to religious liberty can function unevenly, protecting some faiths while relegating Islam and Muslims to second-class citizenship. Drawing on my work in When Islam Is Not a Religion, I discussed legal and political efforts to cast Islam as outside the bounds of protected religion, from mosque land-use disputes to contemporary claims about “Sharia cities.” My comments underscored the danger of defining American belonging through a narrow Christian framework, leaving Muslims and other non-Christians treated as guests rather than equal members of the polity.

Yesterday, I was on 1A talking about the country’s 250th birthday and a question the show put plainly. What does America’s relationship with faith look like now? As the conversation went on, I kept noticing how easily certain people get left out of the story we tell about religious freedom. Muslims, progressive believers, anyone whose faith doesn’t match a narrow picture of what religion is supposed to look like. They get treated as if they are not quite part of the American story, and not quite covered by the protections the rest of us take for granted.

I have spent years writing about one version of this. In my work on Islam, I showed how the most effective way to take away a community’s rights is not to attack those rights head on. It is to argue that the thing in question is not really a religion at all. Call Islam a political movement, a foreign legal code, a program of conquest, anything but a faith, and the whole framework of protection quietly disappears. If it is not religion, there is no religious freedom question to answer. The community is left exposed, and the people doing this can say with a straight face that they never touched anyone’s religious liberty.

What surprised me is how many people recognize the move once you name it. After I speak, they come up to tell me they have seen the same thing aimed at their own beliefs.

• A Jewish man tells me he has been informed by non-Jews that his support for Israel is not really part of Judaism, just politics in religious dress.

• A Mormon friend tells me he is used to hearing that his church is not really a religion at all but a cult, or that whatever it is, it does not count as the real thing.

• A woman tells me she has been told that her belief that her faith permits, and sometimes calls for, abortion in certain situations is not religion but ideology she has wrapped in sacred language.

The accusation always has the same shape. Your belief may be sincere, but it is not the kind of thing the law was built to protect.

This same idea showed up, in a more careful form, in the fight over Indiana’s abortion ban. A group of plaintiffs, including a Jewish organization and several women of different faiths, argued that the ban violated their religious freedom under a state law, because their faith directs them to end a pregnancy in circumstances the ban makes a crime. The law professor Josh Blackman, writing with two colleagues, built the case against them. Soon after the Supreme Court overturned Roe v. Wade, he suggested in a post he called tentative thoughts that many non-Orthodox Jews could not really claim a religious obligation about abortion, because their branch of Judaism does not treat religious law as binding in the strict sense.

Blackman later said he did not mean that liberal Jews can hold no sincere beliefs, but the core idea survived. People who do not believe a higher power is commanding them, he argued, people for whom faith is more personal, hopeful, cultural, or traditional, do not fit the kind of case the law was meant to protect. That one line does a great deal of work. It splits faith into real religion, which orders you to do things, and a lesser thing that merely inspires or comforts. And it puts a lot of believers on the wrong side of the line.

Here is where it gets revealing, and where the trap snaps shut. The same logic that says Muslims and progressive believers are not doing real religion does not lead its users to leave those communities alone. It leads them to attack from both directions at once. They do not want religious freedom to cover a Muslim’s prayer or a progressive’s conscience. But when a public school teaches a unit about Islam, or runs a program meant to push back against anti-Muslim prejudice, suddenly those same voices discover a deep concern about the separation of church and state, and they sue to shut it down as an unlawful establishment of religion. So Islam is too political to count as a religion when a Muslim wants protection, and too religious to be allowed in a public school when a Muslim might benefit. The category bends whichever way leaves the community with less. That is the tell. This was never an honest question about what religion is. It is a tool, and the tool always cuts the same people.

I want to be fair to Blackman. He is making a real legal argument about a hard question, and lawyers can disagree in good faith about how the law should treat beliefs that recommend something rather than strictly command it. He is not running the crude project of calling a whole faith a fraud. But the logic he sharpens is the same logic I have chased for years in its uglier forms. It lets an outsider decide what counts as real faith, and it treats the ordinary variety inside any religious tradition as proof that the believer is faking. Critics warned early that this reasoning would not stay parked on abortion. The same groups using it for their own members would find it turning back on them.

The Indiana appeals court took a different path, deferring to the women’s own account of what their faith asked of them. I will not pretend this settles everything. If the believer decides what her faith requires, a court still has to ask how it can test that without becoming the very arbiter I have been warning against. Where the line sits, and who can police it, is a real problem, and one I mean to take up later.

But the difficulty of drawing that line is not a reason to hand the pen to whoever happens to distrust a given faith. The lesson I keep coming back to is that religious freedom cannot be sliced up. Once we let someone outside a faith decide whether a believer’s commitment is the real thing, we have given away the principle that protects all of us.

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On Sunday, organizers of “Rededicate 250” will gather on the National Mall for a day of prayer, worship, and what they describe as a “rededication” of the United States as “One Nation under God.” Timed just ahead of the nation’s 250th birthday, the event features Speaker of the House Mike Johnson, Secretary of War Pete Hegseth, and other senior officials, along with prominent evangelical leaders, two Catholic bishops, and a leading Orthodox rabbi. It is organized through a public-private partnership with the White House.

The event revives a constitutional question Americans have never fully resolved: When does public religious expression become governmental establishment of religion?

For some, the answer is straightforward. The National Mall is a traditional public forum where private groups regularly hold religious and ideological events. Religious Americans have the same right as anyone else to assemble, pray, and celebrate their vision of the nation’s history.

For others, the event feels different, not because it is religious but because of how it is framed. It is presented as a national act of religious recommitment, organized in partnership with the White House, with high-ranking officials appearing under their official titles. At some point, critics ask, does patriotic religiosity become government endorsement?

What the Constitution Actually Requires

The Constitution offers no simple answer, but it does provide a framework.

The First Amendment contains two religion clauses that exist in tension. The Free Exercise Clause protects Americans’ right to practice religion publicly and robustly. The Establishment Clause forbids the government from establishing religion or coercing religious observance. The challenge has always been defining where private expression ends and unconstitutional governmental action begins.

For much of the twentieth century, the Supreme Court approached this boundary with suspicion. School-sponsored prayer was struck down on the ground that schoolchildren are uniquely vulnerable to official religious pressure. By the 1980s, the Court had developed an “endorsement test,” which asked whether government action conveyed an impermissible endorsement of religion to a reasonable observer.

The Court’s modern jurisprudence has moved in a different direction, away from the endorsement test and toward history, tradition, and the absence of coercion.

The key case for events like Rededicate 250 is Town of Greece v. Galloway. Citizens there challenged a town’s practice of opening meetings with explicitly Christian prayers, many invoking Jesus Christ by name. They argued that the practice excluded non-Christians and effectively aligned the town with one faith.

The Supreme Court disagreed. Writing for the Court, Justice Anthony Kennedy emphasized the nation’s long tradition of legislative prayer dating back to the Founding. So long as the government does not coerce participation, discriminate among faiths, or use prayer as a tool of proselytization, ceremonial religious expression generally falls within the nation’s constitutional traditions.

That approach has strengthened in recent years. In Kennedy v. Bremerton School District, the Court rejected the endorsement test and held that a high school football coach’s visible postgame prayers were protected private religious expression. Establishment Clause analysis, the Court said, must be guided by “historical practices and understandings,” not by abstract concerns about perceived endorsement.

Under this framework, Rededicate 250 would likely be upheld. The National Mall is a paradigmatic public forum. Participation is voluntary. No one is compelled to attend, pray, or affirm any creed. The government is not imposing religious observance in the way the Establishment Clause most clearly forbids.

History points in the same direction. As Michael McConnell has shown, the establishments familiar to the Founding generation were defined not by religious rhetoric or public ceremony, but by legal control over religion itself: controlling doctrine and clergy, compelling attendance, providing public financial support, and limiting political participation to members of the established church. Rededicate 250 has none of these features.

What Legal Doctrine Cannot Settle

And yet doctrinal permissibility is not the same as constitutional reassurance.

What makes Rededicate 250 more fraught is the fusion of three elements: explicitly Christian worship, national symbolism, and the participation of high-ranking officials in their official capacities, in an event organized through a partnership with the White House. The event does not merely place religion alongside public life. It intertwines religious commitment with national identity.

That distinction matters, even if it does not map neatly onto modern doctrine. The Establishment Clause was not designed to purge religion from the public square, but to prevent the state from identifying itself too closely with a particular faith. The Framers worried not only about formal establishment, but about what happens when religious and civic identity become tightly linked.

The concern is not coercion in the narrow sense. No one at Rededicate 250 will be punished for refusing to participate, and no legal rights turn on attendance. The question is subtler: When senior officials participate in overtly sectarian national ceremonies, organized through the executive branch, does the government signal that some religious identities are more fully “American” than others?

Reasonable people will answer differently. Some will see these officials as exercising their own religious liberty in public view. Others will see the symbolic prestige of government, and the organizing power of the White House, being lent to a specifically Christian vision of the nation.

The Supreme Court today is likely to side with the former view. But the underlying debate reflects competing visions of American pluralism itself, and doctrine alone cannot resolve it. One vision treats public religious expression as an essential part of national identity. The other worries that when government and religious symbolism merge too closely, citizens outside the dominant faith are pushed to the margins of civic life.

Rededicate 250 places those competing instincts on full display. That is why the event matters, not just as a gathering on the National Mall but as a test of how Americans understand the relationship between faith, citizenship, and political belonging.

To celebrate America’s 250th, I will be speaking at a very different type of event:

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Religious freedom for American Muslims in 2026 has a quiet exception the Constitution never wrote. In Texas, a governor branded a planned Muslim housing and mosque community a “Sharia city” and moved to block its construction. The community already owned the land. Zoning was approved. Every document the First Amendment requires was in order, and the residents were American families, many of them second and third generation, who had built their lives exactly as any religious community in this country is supposed to. The project has become the latest flashpoint in a years-long legal war over Islam’s status as a religion under American law.

This pattern is not an accident. It is the precise legal and rhetorical strategy I have been mapping for over a decade. On WISE Women with Daisy Khan, I sit down with Khan to unpack how a coordinated effort has steadily tried to remove Muslims from the protections the First Amendment guarantees every other religious America, and how American Muslims are organizing to close that gap permanently.

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In November, a Catholic archdiocese asked the Supreme Court to throw out a thirty-six-year-old precedent that has shaped American religious liberty law for an entire generation. Several conservative justices have spent years signaling they wanted to do exactly that. The Court had a clean shot.

It said no.

When the justices agreed on April 20 to hear St. Mary Catholic Parish v. Roy, they took the case but quietly refused to touch the bigger question the parishes had teed up for them. They will decide the case using the very legal framework the parishes had asked them to abandon.

That is a tell. And it is the most interesting thing about the case nobody is talking about.

The case on the surface

St. Mary is, on the surface, the latest installment in a familiar story. Colorado created a universal preschool program in 2022, offering every family up to fifteen hours a week of free preschool, worth about six thousand dollars per child. Any licensed provider could participate. There was one condition. Providers had to agree not to discriminate against families based on sexual orientation or gender identity.

The Catholic parishes of the Archdiocese of Denver applied. They were turned away because they would not agree to enroll children of same-sex parents, a condition the parishes said they could not meet without compromising the religious identity that makes them what they are.

A federal trial court ruled for Colorado. A federal appeals court agreed. And now the Supreme Court will decide whether the state can keep its universal program universal by closing the door to providers like the parishes, or whether keeping that door closed is itself the kind of religious targeting the Constitution forbids.

That is the question on the surface. It is not the most interesting question in the case.

A decade of easy wins, and a decade of dodges

For the past decade, the Court has been quietly building one of the most consequential bodies of religious liberty law in modern memory. Case-by-case, it has ruled that states cannot create public benefit programs and then quietly carve religious institutions out of them. A Missouri church-run school excluded from a playground safety grant. Montana religious schools barred from a scholarship program. Maine faith-based schools refused tuition assistance. The Court ruled for the religious institutions every time.

These rulings came steadily, and they came easily. The competing interests were largely abstract. Concerns about public money flowing to religious education are serious, and the dissenting justices said so at length, but no actual third party was being turned away.

Then there is the other line of cases. The collision cases. The ones where a religious party wants to be excused from a law that exists to protect LGBTQ people from discrimination. The Christian baker who would not make a cake for a same-sex wedding. The Catholic foster care agency that would not place children with same-sex couples. The Christian web designer who would not build wedding sites for same-sex couples.

The Court has decided every one of them on the narrowest ground available.

The baker won because one Colorado official had said something dismissive about religion during the agency proceedings. That was enough to decide the case without saying anything about whether religious business owners can refuse to serve gay weddings.

The foster care agency won because Philadelphia’s nondiscrimination policy gave officials discretion to grant exemptions. If they could grant exemptions for any reason, the Court said, they had to consider granting one for religion. Another technical exit. Another case decided without resolving the underlying conflict.

The web designer won, but on free speech grounds, not religious freedom. The case turned on whether websites are a form of expression the government cannot compel, not on what religious freedom means when it bumps up against equality.

This is the pattern. Every time the Court has had a chance to say plainly what religious freedom requires when nondiscrimination law is on the other side, it has found a way out. A bad official. A loophole in the rules. A speech doctrine. The Court has been telling both sides that the Constitution is on their side, while never having to explain how that can possibly be true.

What the Court refused to touch

Now look at how the Court took up St. Mary.

When you ask the Supreme Court to hear your case, you frame the questions you want them to answer. The lawyers for the parishes framed three questions. Two were technical. The third asked the Court to throw out the 1990 precedent that, since it was decided, has been the rulebook for these collisions.

The Court agreed to hear the first two questions and silently dropped the third.

This is not routine docket management. The 1990 precedent in question, Employment Division v. Smith, has been openly inviting challenge for years. It says, basically, that if a law applies to everyone neutrally, religious people have to follow it like everyone else, even if it burdens their faith. Justice Alito wrote a fifty-page opinion in 2021 arguing the precedent should be overruled. Justices Thomas and Gorsuch agreed. Justice Barrett, in a separate opinion, said the precedent was vulnerable but she was not convinced about what should replace it.

That fourth vote is the whole story. Three justices want to overrule the precedent. A fourth has doubts about it. They need a fifth. And the fifth has not materialized.

So, St. Mary will be decided using the existing rulebook, not a new one. And that matters for two reasons.

The first is practical. If Colorado loses, the Court will have to explain why under the existing rules. The parishes’ argument is that Colorado’s program is not actually neutral. The state lets some preschools prioritize low-income families. It lets others reserve seats for children with disabilities. And according to the program’s own director, the rules allow preschools to serve only children of color, or only LGBTQ families, or only gender-nonconforming children. If you let those exemptions through and refuse a religious one, the parishes argue, you are not being neutral. You are picking favorites.

The second reason is more interesting. By keeping the case inside the existing framework, the Court is preserving its ability to keep doing exactly what it has been doing for a decade. The current rulebook, with its various carve-outs and exceptions, is a tool for case-by-case adjustment. A new rulebook would force the Court to actually say what religious freedom means when nondiscrimination law is on the other side.

The Court is not ready to say that. It has been signaling that it is not ready for ten years. The refusal to touch the bigger question in St. Mary is the latest signal.

Two families, two promises

What you are watching is not a Court that has decided what religious freedom means in the age of LGBTQ equality. You are watching a Court that is using narrow rulings as a substitute for an answer.

That has costs. The biggest is that real people, on both sides, keep being told that the Constitution is on their side, and they keep ordering their lives around that promise, and the Court keeps deferring the moment when one of those promises must give way to the other.

The Sheley family, the Catholic plaintiffs in St. Mary, hoped to use the universal preschool benefit to send their seven children to the parish school they already attend. They could not. While the case was making its way through the courts, one parish preschool that primarily served low-income Catholic families had to close its doors. Down the block, somewhere in Colorado, a same-sex couple read about the program, saw the nondiscrimination rule, and thought: this one is for us. It might not be. It depends on what the Court says next year.

Two families. Two promises. One Constitution.

The answer the Court cannot give us

The justices have kept the case narrow on purpose. Whatever they say about Colorado’s exemptions, they will not be saying, plainly, what religious freedom requires when honoring it costs LGBTQ families something real, and what nondiscrimination requires when enforcing it means closing religious communities out of public life.

There is a part of me that wishes they would just answer it. Pick. Tell us. The deferral is starting to feel like a kind of dishonesty, a way of giving wins to both sides on paper while letting the loss fall, every time, on whichever party drew the unlucky facts.

There is another part of me that is grateful for the deferral. Because the truth is that this conflict, the one between religious traditionalism and LGBTQ equality, is not really a legal conflict. It is a moral and cultural disagreement about what families are, what conscience demands, and how a pluralistic society lives with people whose deepest convictions clash. That kind of question is worked out, in functioning democracies, through legislation and negotiation and accommodation and the slow work of social adjustment. We have done some of that. But increasingly we have outsourced it to nine people in robes who speak in the language of doctrine and precedent.

A ruling in St. Mary that finally answers the underlying question, in either direction, will close some of that space. It will turn what is now a continuing conversation into a fixed legal answer, handed down by a body that one half of the country trusts and the other half does not. Whatever that ruling says, half the country will read it and learn that the Constitution they were taught to believe in does not actually believe in them.

The Court is not going to give us the answer next year. It has already told us so by what it refused to take up. It will give us a narrow ruling on Colorado’s exemption rules, and the larger question will roll forward to the next case, and the case after that, until eventually the off-ramps run out.

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There has always been a line in a free society. The government could punish what you did and sometimes regulate what you said, but it could not reach inside your mind. Your beliefs, your doubts, your private convictions were yours alone. No court order could compel them. No search warrant could retrieve them.

That line is beginning to move, and most people have not noticed.

The debate about artificial intelligence has mostly focused on surveillance and speech, and that alone should worry us. AI makes it cheap to monitor what people say, track who believes what and build detailed profiles of entire communities. You do not need to ban speech to silence it. A system that is always watching is enough.

In such an atmosphere, people start to censor themselves. Research consistently shows this. When people feel watched, they change what they say, often without realizing it.

But the technological advances are not stopping at speech.

Neurotechnology, long the stuff of science fiction, is becoming real. Deep brain stimulation treats Parkinson’s disease. Transcranial magnetic stimulation is FDA-cleared for depression, including in teenagers. Brain-computer interfaces are in human trials, with companies working toward devices that let people control technology with their thoughts.

For patients with paralysis or severe neurological disease, this is life-changing work. None of that should be dismissed.

But technologies built to heal have a long history of spreading beyond medicine. EEG was developed to diagnose epilepsy and is now the engine behind consumer focus headbands. Drugs built for depression and ADHD became productivity tools for healthy people. Deep brain stimulation, developed for Parkinson’s, is now being studied for addiction and memory enhancement.

The pattern is familiar: A technology earns trust by treating real suffering, and that trust then carries it into uses that were never part of the original deal. Consumer neurotechnology is already following that path. And like every other kind of personal data, once brain-related data becomes useful, it becomes valuable.

Once it becomes valuable, it gets collected, shared and used in ways people never agreed to. The incentives largely push in one direction.

Intrusive, expansive data collection is one thing. But now add AI’s ability to find patterns in all of it.

The First Amendment protects your right to speak. It does not guarantee that you will feel safe doing so. In a world where everything you say can be recorded, analyzed and tied back to you, people get more careful.

Speech narrows. Opinions soften. Dissent fades or goes quiet. This is not speculation. It is how people behave when they feel watched.

Neurotechnology opens a new, more intensive front in that problem.

Recent research has shown that aspects of language can be reconstructed from patterns of brain activity. Other work has demonstrated real-time decoding of “inner speech,” with the researchers themselves warning about the potential for misuse.

None of this is at the level of consumer-grade mind reading. The gap between the lab and everyday life is still significant. But the direction is clear enough that it makes sense to ask the legal and constitutional questions now, before the technology gets ahead of the rules meant to govern it.

In my view, the law is not ready.

The danger is not a sudden loss of freedom. It is something slower and harder to reverse. Speech becomes more guarded. Belief becomes more exposed. The private self becomes easier to read.

The Fourth Amendment protects against unreasonable searches, but it was not built for a world where beliefs and intentions can be inferred from biological signals without entering a home or touching a device.

More broadly, courts are still working through what to do with digital data. And neural data is not yet part of that conversation. Even where privacy laws exist, they tend to focus on what data can be collected, not what can be figured out from data already obtained.

That gap matters when the most sensitive information is not what someone said but what a highly intelligent AI system concluded from everything else it can access.

Religious liberty raises a concern that tends to get overlooked in this debate.

Freedom of religion depends on freedom of conscience. The First Amendment protects not just what people say publicly but also what they believe, question and work through in private.

For many traditions, that inner life is not a side note to religious practice. It is the center of it. Prayer, intention, doubt — these happen inside a person, not on a public platform.

What happens to that precious liberty when the inner life no longer feels fully private?

The threat is not necessarily someone forcing you to reveal your beliefs. It is something quieter and harder to guard against: the possibility that what you believe becomes visible to employers, governments, insurers or companies simply as a side effect of tools you use every day. No one has to ask.

The system figures it out. It’s like a much bigger equivalent of having a private conversation at home, then finding an advertisement showing up on your devices the next day targeting that very topic.

That kind of exposure creates a pressure that is hard to see and hard to fight, precisely because there is no single moment where something obviously goes wrong.

Think about what that looks like in practice. A Muslim employee uses a company wellness app that tracks heart rate and stress during the workday. She steps away to pray. The app logs a recurring pattern: stillness, slowed breathing and reduced screen activity five times a day. She never told anyone her religion. She never had to. The pattern did it for her. Whether her employer ever acts on that information is almost beside the point. The exposure happened without her knowledge and without her consent.

Or consider this: A homeschooling parent relies on an online curriculum that logs lesson selections, reading lists and how long students spend on different topics. Over time, those choices form a clear pattern: certain periods of history emphasized, others passed over, particular authors returning again and again.

From that, a profile emerges: not just how the child learns, but what the household likely believes. No survey was filled out. No declaration was made. The conclusions come from accumulation, not disclosure. And once they exist, they can travel beyond the platform, beyond the family, into systems the parent never intended to inform.

That is the kind of quiet exposure the law was never designed to prevent but may now have to. Some governments are starting to respond. Colorado now treats neural data as sensitive information with stronger legal protections. Chile has recognized mental privacyas a constitutional right. UNESCO adopted a global framework on neurotechnology ethics in 2023.

These are early steps, but they are real ones. In the United States, the conversation has barely begun.

The danger is not a sudden loss of freedom. It is something slower and harder to reverse. Speech becomes more guarded. Belief becomes more exposed. The private self becomes easier to read.

The law will still say you are free. But freedom that exists only on paper, in a world where your own thoughts feel like someone else’s data, is a much thinner thing than what this country was built on.

Free societies have always had to draw a line between what can be known and what must stay personal. For most of our history, that line has been the human mind.

It is worth deciding now whether we mean to keep it there.

This post was previously published on Deseret News.

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In recent weeks, senior officials have urged Americans to pray for military victory “on bended knee” and to do so “in the name of Jesus Christ,” tying the nation’s wars to a sense of divine purpose.

At the same time, service members have filed 110 complaints about their commanders describing war itself as part of “God’s divine plan” and invoking biblical end-times language as they prepare troops for combat.

Separately, inside the Pentagon, leaders have also organized recurring Christian prayer services, held in government spaces and promoted within federal agencies. A watchdog group has now gone to court to find out how those events were planned, who approved them, and whether taxpayer resources were used to support them.

What exactly is happening here?

Is this simply religion in public life, something the Constitution clearly allows? Or is it something else, something closer to the government itself taking a religious stance?

The Constitution does not push faith out of public life. It protects it. Americans can pray. Leaders can speak about their beliefs. The military even employs chaplains so service members of many faiths can worship.

But there is a line. The government cannot use its authority in ways that effectively favor one faith or pressure people to participate in particular religious practices — especially in settings where hierarchy and context can make participation feel expected rather than freely chosen. General appeals to prayer are one thing; directing or embedding religious activity within official duties is another.

Where that line sits, however, has become harder to locate.

The Supreme Court has spent decades trying to define it, and its answers have shifted. For a long time, courts asked whether a reasonable observer would see a specific government action as an endorsement of religion.

But over the past decade, the Court has moved away from that framework. In Town of Greece v. Galloway (2014), it upheld explicitly Christian legislative prayer based on historical tradition. In American Legion v. American Humanist Association (2019), it criticized the old tests courts had relied on for decades.

Most recently, in 2022, in Kennedy v. Bremerton School District, the Court went further. It ruled in favor of a high school football coach who prayed on the field after games, emphasizing his individual right to religious expression and directing courts to look instead to history and tradition.

Together, these decisions make clear that government employees do not lose their right to pray simply because they are acting in a public role — and they narrow the situations in which courts will treat religious expression as unconstitutional, even when it happens in public view.

That matters here. When senior officials call publicly for prayer in explicitly Christian terms, the line between personal expression and official speech becomes contested. Are they speaking as individuals, or as the government itself? After Bremerton, courts are less quick to answer that question in favor of an Establishment Clause violation.

So, what can courts still look at?

They can ask what the government itself is organizing. Making space for religion is allowed. That is why chaplains exist. But organizing recurring Christian prayer services inside federal agencies raises a different question: Is the government making room for religion, or is it building a platform for it?

That is where the lawsuit now pending becomes important. The group behind it is not just objecting in the abstract. It is asking for the details: Who planned these events? How much staff time went into them? Were outside speakers invited to promote a specific message? Were complaints raised by employees who felt uncomfortable or excluded?

Those details matter because an Establishment Clause case today is not simply about whether someone prayed. It is about whether the government itself organized, funded, or directed religious activity in ways that cross from accommodation into promotion.

Even so, one principle has survived all of this. Coercion matters.

In Lee v. Weisman, the Court held that government-sponsored prayer violates the Constitution when the setting makes it difficult to opt out, even when no explicit requirement to participate is issued. That holding has not been overruled.

The coercion reasoning has particular force in the military. In an ordinary workplace, you can skip an event. You can stay silent. You can opt out without much thought.

Can you do that in the military?

When a superior speaks, it carries weight. When a superior frames a mission in religious terms, it can sound like strong guidance. When a superior invites participation in a prayer, even a voluntary one, it can feel like clear expectation.

When service members report being told that a war is part of God’s plan, what does that mean for the soldier who does not share that belief? What does it mean for the one who does, but understands faith differently? What does it mean for the one who simply wants to do the job without taking a religious position at all?

Are they free to stand apart? Or are they being asked, quietly but unmistakably, to fall in line?

For a legal challenge to succeed, those questions would have to be answered with evidence. A court would look for signs that officials were acting in institutional rather than purely personal capacities. It would look for patterns, not isolated moments. It would look for pressure, even if no one ever said the word “mandatory.” And under the current Court’s framework, it would also have to grapple with whether the challenged practice has historical precedent — a question that tends to favor the government.

The law here is genuinely uncertain. Recent decisions have moved the Court away from aggressive Establishment Clause enforcement and toward stronger protection for religious expression by government actors.

Yet that shift does not make the underlying concerns disappear. It makes them harder to litigate.

So, what is taking place, exactly?

Is it faith accompanying power? Or is it power speaking in the language of faith?

And for the soldiers standing in formation, listening to a prayer before a mission briefing, the question is even more immediate: When the voice comes over the loudspeaker, is it a superior speaking as an individual — or the institution speaking through him?

In that moment, do you really have a choice?

This piece was previously published at Deseret News.

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The Supreme Court’s decision this week in Chiles v. Salazar is about far more than conversion therapy. It redraws the line between what the government can regulate and what it must leave alone, and it does so in a way that will reshape how law treats speech in medicine, counseling and other professional settings.

The case also reflects a broader shift in how these disputes reach the court. For years, conflicts involving sexuality and conscience were framed as questions of religious freedom. That is no longer how they arrive. Chiles came as a free speech case.

But even then, the more important development is not simply how the case was argued; it is how the court chose to understand what was being regulated.

Kaley Chiles, a licensed counselor in Colorado, challenged a state law that prohibits therapists from engaging in “conversion therapy” with minors, reflected in professional efforts to change a client’s sexual orientation or gender identity.

The law drew a line. It prohibited counseling that seeks to change sexual orientation, while allowing counseling that affirms identity and supports exploration. Colorado defended that line as a matter of public health, pointing to a broad medical consensus that conversion therapy is ineffective and associated with depression, anxiety and increased risk of suicide.

Justice Ketanji Brown Jackson’s dissent takes that evidence seriously and treats it as the heart of the case. In her view, Colorado was doing what states have long done. It was regulating a form of treatment that the medical profession has concluded is harmful, just as states regulate drugs, procedures and standards of care more generally. The fact that this particular treatment is delivered through words, she argued, should not change the analysis.

Her core claim is a careful doctrinal one: There is a meaningful difference between a state that targets speech because of the ideas it expresses and a state that restricts speech only incidentally because it is regulating a medical treatment. Prior Supreme Court decisions, she argued, recognized exactly that distinction and called for less demanding constitutional scrutiny when a state is doing the latter — that is, when the speech restriction is a byproduct of regulating care, not an attempt to silence a point of view.

Eight other justices saw the case differently. And that difference determined everything that followed.

The Supreme Court did not deny that Colorado had evidence or that it was acting with protective aims. It said those should not be relevant considerations once the law was understood as regulating speech.

Chiles provides only talk therapy. She does not prescribe medication or perform procedures. She speaks. From that premise, the court drew a categorical conclusion: If what she does is speech, then what the state is effectively regulating is speech, whatever label the state uses.

That move is not just descriptive. It is decisive.

Once the case is placed in the domain of speech, the governing rules change. The court is then able to ask not whether Colorado was regulating a harmful practice but whether it was taking sides in a debate.

And on that question, the answer was straightforward: The law permits a therapist to affirm a minor’s identity, but forbids a therapist from encouraging change. It allows one perspective and prohibits the other. The court treated that as textbook viewpoint discrimination, the most disfavored form of speech regulation under the First Amendment.

At that point, the case was effectively over. Once a law is classified as viewpoint discriminatory, the government’s evidence, however substantial, carries far less weight. The question is no longer whether the state has good reasons; it is whether the state has chosen a side.

Colorado argued that it was regulating professional conduct. The lower courts agreed. The Supreme Court majority rejected that framing outright. From this view, calling something a treatment or a therapeutic method does not change what it is.

The First Amendment, the court said, cannot be avoided by labeling speech as conduct. Nor does the fact that the speaker is a licensed professional diminish constitutional protection. The court reiterated that there is no separate category of “professional speech” that receives lesser protection.

Thus, at the same time litigants have increasingly brought these cases as speech claims rather than religious ones, the court has become more willing to accept that framing and to go further by treating professional interactions themselves as speech. The first shift is strategic. The second is doctrinal. Together, they are reshaping the law.

The immediate case is about conversion therapy. The broader shift is about something larger.

The consequences are significant. A neutral and generally applicable law like Colorado’s would likely survive a religious freedom challenge under existing doctrine. Treated as a speech restriction, the same law triggers the most demanding form of constitutional review. And when that review is driven by a finding of viewpoint discrimination, the outcome is rarely in doubt.

The implications extend well beyond this case. Much of modern health care is delivered through conversation. Addiction counseling, eating disorder treatment, suicide prevention and end-of-life care all depend on words rather than instruments or prescriptions. States have long regulated these practices based on evidence about what helps and what harms.

After Chiles, those regulations rest on less certain ground. Any rule that permits some therapeutic messages while forbidding others risks being characterized as taking sides. And laws that take sides face a constitutional standard that most cannot satisfy.

The majority acknowledges some limits but does not define them. Justice Elena Kagan, joined by Justice Sonia Sotomayor, points to a possible path forward. A law that restricts clinical speech without favoring one viewpoint over another might survive constitutional challenge. But that distinction is easier to state than to apply. In a therapeutic setting where treatment often consists of conversation directed toward particular ends, separating content from viewpoint is not straightforward.

Jackson warns of the consequences. Rules requiring providers to act in patients’ best interests, to avoid cruel care and to meet basic standards of competence all shape what professionals say, and all could now face challenge. The majority does not provide a clear answer.

The First Amendment now reaches into spaces it has not occupied before.

The immediate case is about conversion therapy. The broader shift is about something larger. The debate is no longer being fought on the terrain of religion or public health. It is being fought on the terrain of speech. And on that terrain, the balance of power shifts.

Chiles follows a line of recent decisions in which the court has used the First Amendment to reach outcomes that might once have required a harder constitutional fight. This includes a 2023 case in which the court resolved a business owner’s religious objection to serving gay customers entirely through speech doctrine rather than religious freedom principles.

What is new in Chiles is that this logic has now moved inside the clinic. It applies not to a business owner speaking to the public but to a licensed professional speaking to a patient in a therapeutic relationship. That extension matters.

States that seek to regulate what licensed professionals say to patients will now have to navigate a constitutional landscape that has shifted beneath them. Laws that favor one therapeutic message over another will face serious obstacles. Kagan’s concurrence suggests a narrower path may exist, but no one yet knows how far it runs or whether legislatures can successfully walk it.

What is clear is that the First Amendment now reaches into spaces it has not occupied before. The cost of that expansion will be measured, case by case, in the states’ diminished capacity to directly regulate the care of their citizens.

This piece was previously published at Deseret News.

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In Texas this month, a proposed Muslim housing development near Dallas has been cast as evidence of the “Islamization of Texas,” described not as a real estate project, but as a civilizational threat.

At a Fort Worth church just days after the primaries, panelists debated banning Islam, deporting Muslims, or reclassifying their faith as a political ideology. In Austin, after a deadly downtown shooting, Muslim families quietly increased mosque security and wondered whether their children would be targeted, not because of anything they had done, but because of what they believed.

I have seen this pattern before. In 2019, I wrote “When Islam Is Not a Religion,” warning that the effort to define Islam out of constitutional protection was already underway. What we are witnessing now is not new.

The argument is deceptively simple. Islam, a surprising number of critics say, is not truly a religion. It is a political system, a totalitarian ideology wearing a religious veneer. And if it is merely political, then it does not qualify for protection under the First Amendment.

I documented these kinds of assertions in a 2018 New York Times article. Since then, the argument has not faded; it has grown more explicit and more mainstream. In 2025, Sen. Tommy Tuberville from Alabama wrote in response to a violent incident abroad, “Islam is not a religion. It’s a cult.” That same year, a local Florida official, Robert Langevin, argued on social media that Islam is “as much a political ideology as it is a practice of faith,” and claimed Muslims were advancing that ideology in Western societies.

This language in the U.S. echoes that of Dutch politician Geert Wilders, who for years has described Islam not as a religion but as a totalitarian political ideology comparable to fascism or communism.

The pattern is familiar: redefine a faith as an ideology, recast believers as political actors, and constitutional protections begin to look optional rather than fundamental.

This claim does not live on the fringe. It has appeared in courtrooms, legislative proposals, and official statements by elected leaders. Lawmakers have introduced anti-Sharia bills premised on the idea that Islamic law poses a unique threat to American values, even though existing law already prevents the abuses they claimed to fear.

Lawyers have also argued that mosques were not entitled to the same protections as churches because Islam was inherently political. The debate was never really about foreign law. It was about who counts.

The controversy surrounding the EPIC community near Dallas fits squarely within this framework. A group of Muslim Texans sought to build a residential developmentanchored by a mosque and community amenities.

Critics responded with warnings of demographic takeover and creeping Sharia. Their concern was not traffic patterns or zoning density, but visibility. Muslims choosing to live together in intentional community became, in this telling, proof of an imagined transformation of Texas itself.

As of March 2026, the development’s legal status remains locked in a complex gridlock of local permit delays and state-level litigation. Additionally, in February 2026, the U.S. Department of Housing and Urban Development opened a federal civil rights investigation at the urging of Texas Gov. Greg Abbott who has called residential development “discriminatory” and invoked fears of “Sharia” while insisting that religion was being used as a “form of segregation.”

The phrase “Islamization of Texas” does powerful rhetorical work. It reframes Muslim religious life not as an exercise of faith, but as an ideological campaign. This casts ordinary civic participation as stealth conquest. Once that frame takes hold, extraordinary legal measures begin to sound reasonable.

Consider what follows if it does. Could the state deny mosque construction outright? Could Muslim charities be regulated as political organizations rather than houses of worship? Could Muslim religious arbitration be singled out for restriction while Jewish and Christian arbitration remains respected? Could Muslim inmates be denied religious accommodations because their faith has been labeled an ideology?

These are not abstract possibilities. They could be the practical consequences of redefining religion.

Religious liberty in America rests on a foundational principle: Government does not sit as theologian. It does not decide which doctrines are sufficiently spiritual or sufficiently American. The First Amendment protects religious exercise because we do not have to prove that our beliefs are popular or comfortable in order to deserve constitutional protection.

To declare that Islam is not a religion is to make Muslim rights conditional on political approval.

History should make us wary of this move. Catholics were once portrayed as loyal to Rome rather than the Republic. Jews were depicted as operating hidden networks of influence. Latter-day Saints were treated as an inherently political movement undeserving of constitutional standing.

In each case, the pattern was the same. Redefine the unfamiliar faith as political, then deny it full protection. The faces changed; the logic did not.

Texas prides itself on limited government and robust religious liberty, and many of the same leaders now warning about Islamization champion strong protections for Christian religious exercise. That instinct for protection is sound.

But it cannot be principled if it is selective. Evangelical Christianity shapes views on marriage, abortion, and public policy. Catholic social teaching animates debates about poverty and immigration. Orthodox Judaism structures daily life in ways that touch commerce and community. Nearly every faith tradition carries moral commitments into public life, and none of that strips it of its religious character.

The test of religious freedom is not how we treat the familiar. It is how we treat the faith that unsettles us.

Muslim Texans describe a lived reality in their own families and communities that looks nothing like an ideological campaign. They celebrate Ramadan under American and Texas flags, run businesses, serve in public office, and raise families in the same suburbs now accused of harboring civilizational threats. Their lives resemble ordinary American pluralism. The question is whether American pluralism will extend to them.

When I wrote “When Islam Is Not a Religion,” I argued that the struggle over Muslim religious liberty was a test of the coherence of religious freedom itself. That test is before Texas again. A government that labels a faith political in order to place it outside constitutional protection has already abandoned neutrality. And a religious liberty that applies only to the comfortable is no liberty at all.

This piece was previously published at Deseret News.

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Imagine a case that reaches the Supreme Court involving a student disciplined by his school. Everyone agrees the student spoke. The disagreement is about something subtler. Was he punished for his words, or for the way he behaved while speaking. That single distinction determines whether free speech protections apply at all.

The justices do not debate the value of free expression in the abstract. They focus on context. Where was the student standing. Who could hear him. What else was happening at the time. The outcome turns on how to describe what occurred.

This hypothetical captures something essential about constitutional law. Rights do not activate on their own. They are triggered by facts. Before the Constitution can protect speech, religion, or protest, someone has to decide what kind of event actually took place.

We often miss this because we talk about rights as if they are automatic. Either you have them or you do not. Either the Constitution applies or it does not. In practice, constitutional protection depends on whether facts are understood in a way that lines up with the boundaries the law has drawn. Facts are the gateway.

Speech is protected only if it is recognized as speech rather than disruption. Religious practice is protected only if it is understood as religious practice rather than ordinary behavior. Protest is protected only if it is distinguished from threat or violence. The Constitution does not answer these questions for us. It waits for them to be answered.

For much of American history, that work happened slowly and deliberately. Courts gathered evidence, listened to competing accounts, and explained why one version of events mattered more than another. The process was imperfect, but it was designed to stabilize facts long enough for law to do its work.

The religion context makes this especially clear. Whether religious freedom applies often turns on how a burden is described. A government rule can be seen as a minor inconvenience or as a serious pressure that forces someone to choose between faith and participation in public life. Exposure to ideas can be framed as harmless or as deeply disruptive to a way of life. The legal standards may remain the same, but constitutional protection rises or falls with how the facts are understood.

The same is true for speech. A demonstration can be described as peaceful expression or as dangerous obstruction. Filming officials can be understood as accountability or as interference. The Constitution draws lines between these categories, but it does not tell us which side of the line a particular event falls on. That judgment comes first.

This is where this piece by my friend John Inazu is especially helpful. He explains that many of our disagreements collapse three different kinds of claims into one. We confuse claims about what happened with claims about what the law says, and we confuse both with claims about what we think is right. When those categories blur, factual disputes turn into moral standoffs, legal questions flatten into slogans, and people stop trusting the processes meant to resolve disagreement.

Inazu’s insight is that these distinctions matter. A factual claim asks what occurred. A legal claim asks how the law classifies that occurrence. A moral claim asks how we should evaluate it. Each plays a different role, and each requires a different kind of reasoning. Treating them as interchangeable makes it almost impossible to reason together.

This essay begins one step earlier.

Before we can separate facts from law, or law from morality, facts themselves must be understood in a way that fits the structure of constitutional law. If the law protects speech but not threats, everything depends on how the event is described. If the law protects religious exercise but not every personal preference, everything depends on how the practice is characterized.

When facts are unstable, constitutional law cannot do its job. Rights do not disappear because the Constitution has changed. They fail to attach because the event never makes it through the gateway.

Outside the courtroom, this problem becomes even more visible. In public life, events are interpreted almost instantly. Short video clips circulate before investigations are complete. Narratives form quickly and confidently. Moral conclusions often arrive before factual ones have settled.

Here too, facts determine whether rights are thought to exist at all. A protest is either dissent or danger. Filming authorities is either accountability or interference. A religious objection is either conscience or discrimination. These judgments come first, and once they harden, it becomes difficult even to ask what the Constitution requires.

The killing of Renée Good revealed this dynamic with painful clarity. From the outset, there was no shared understanding of what had happened. Competing accounts emerged immediately, each carrying not just a description of events but a conclusion about their meaning. Without agreement on the facts, the question of constitutional limits never fully came into view.

Then came the killing of Alex Pretti.

The Pretti shooting feels different not because it is simple, but because the violence resists easy reframing. A man filming federal agents, later pinned to the ground, shot multiple times. Whether filming counts as protected activity or as interference is not a moral question. It is a factual one that determines whether constitutional limits apply at all. When that judgment is made too quickly or too loosely, the space for rights collapses.

In both cases, the Constitution did not vanish. What faltered was the gateway. Before courts could meaningfully weigh in, before doctrine could do its work, the most consequential factual judgments had already been made. Once an encounter is understood as a threat, the law’s protective categories recede. Once it is understood as interference, constitutional safeguards narrow. The boundaries remain, but the event never reaches them in protected form.

This is why the question of whether the Constitution still matters feels so urgent. The text remains. The doctrines remain. But constitutional law can matter only if facts are understood in a way that aligns with the lines the law has drawn.

The Constitution does not enforce itself. It relies on shared habits of care in describing events. It relies on our willingness to pause long enough to ask what happened before deciding what it means or how we feel about it. When that step is skipped, the Constitution does not disappear. It simply never turns on.

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Renee Good did not set out to test the outer limits of free speech. She was a poet, a mother, and a school board member who, on a cold January morning in Minneapolis, encountered something many Americans now recognize immediately: unmarked federal vehicles, neighbors blowing whistles, phones raised to record, and the sudden arrival of ICE in a residential neighborhood.

Minutes later, Good was dead. An ICE agent fired three shots into her car during a confrontation on a public street. Within days, federal officials labeled the incident “domestic terrorism,” defended the shooting, and deployed tear gas and pepper spray against protesters and students who returned to the streets, including near a public high school. Classes were canceled. Prosecutors resigned. And a chilling message settled over communities watching closely: protest near immigration enforcement had become dangerous.

Public discussion since has focused almost entirely on use of force—whether the agent reasonably feared for his life, whether a car can constitute a deadly weapon, whether the shooting was justified under the Fourth Amendment. Those questions matter. But they obscure a deeper and largely unexplored constitutional issue:

What happens to the First Amendment when protest collides with immigration enforcement?

For decades, the Supreme Court has treated verbal opposition to law enforcement as core protected speech. In City of Houston v. Hill, the Court put it plainly:

“The Constitution does not allow such speech to be made a crime. The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.”

That principle is not rhetorical flourish. It reflects a judgment about democratic identity. Free societies tolerate dissent directed at the state itself, even when that dissent is angry, disruptive, or deeply uncomfortable.

Immigration protests test that commitment because they unfold in volatile settings. They take place on streets and sidewalks during active enforcement, where civilians watch and record as the government exercises one of its most coercive powers. The speech is confrontational by design. The discomfort is the point.

Shouting at agents, criticizing their actions, demanding that they leave a neighborhood—none of this loses constitutional protection simply because officers find it hostile or distracting. Nor does the protection evaporate because the subject is immigration rather than some less politically charged issue.

The Line Between Order and Suppression

The First Amendment does not protect everything that happens at a protest. The law draws a line between speech and conduct, and that line becomes critical when emotions run high. Chanting, filming, and verbal confrontation are protected. Physical obstruction that creates genuine safety risks may be regulated, even in public forums.

The hard question is not whether limits exist. It is how they are enforced.

In the Good incident, her car was positioned in the street, partially obstructing traffic. That fact matters. But regulation is not escalation. The Constitution does not treat every act of civil disobedience as a lethal threat. Video shows other vehicles maneuvering around her car, verbal exchanges that were plainly protected, and an agent approaching while recording on his phone. Seconds later, he fired.

Even if one accepts that obstruction can be regulated, the use of deadly force during expressive activity carries constitutional consequences beyond the immediate encounter. When enforcement escalates in protest settings, the chilling effect extends far beyond the individual involved. It signals to observers that participation itself—watching, filming, speaking—may carry extreme risk.

That chilling effect deepened in the days that followed. Federal agents deployed chemical agents to disperse crowds, treating entire gatherings as threats rather than distinguishing between unlawful conduct and protected dissent. The Supreme Court has repeatedly warned against this kind of collective suppression. Unlawful acts by some do not erase the First Amendment rights of others.

There is also the unresolved problem of retaliation. When protest activity aimed at immigration enforcement draws harsher responses than comparable conduct elsewhere, constitutional suspicion is unavoidable. The First Amendment forbids the state from using its enforcement power to punish disfavored viewpoints. Labeling civilian monitoring and protest as “domestic terrorism” risks collapsing that distinction altogether.

None of this denies the real dangers immigration officers face. Vehicles can be weapons. Officers make split-second decisions under stress. The Constitution does not require agents to absorb genuine threats without response. But it does require restraint, especially when enforcement unfolds amid constitutionally protected dissent. Authority does not include a right to silence critics.

What makes Renee Good’s death so unsettling is not only the loss of life, but the precedent it threatens to set. If protest near immigration enforcement is treated as inherently dangerous, then the First Amendment shrinks at precisely the moment when its protections are most needed.

The Constitution does not guarantee order or efficiency. It guarantees space for speech, for protest, for communities to bear witness when the state exercises its most formidable powers. Immigration enforcement may require authority. It does not require a protest-free zone.

The unresolved question after Minneapolis is not only whether one shooting was justified. It is whether dissent remains a protected constitutional act, or whether it is only tolerated when it is quiet, distant, and safely removed from the officials it challenges.

That question has received far less attention than it deserves. And it may ultimately matter more than any single verdict.

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Imagine you’re a judge. It’s Monday morning, coffee still cooling on the bench, and a parade of religion cases marches through your courtroom door. A Jewish student wants to miss school on Yom Kippur. A public school displays a giant Ten Commandments plaque in homeroom. A city denies playground funding to a church preschool. A Muslim group asks to rent the public library auditorium for Eid prayers. A Buddhist prisoner asks for a meditation mat. A teacher tells students they’re “blessed by Jesus” before a math quiz.

Which clause applies?
Free Exercise?
Establishment?
Both?
Neither?

The First Amendment has two religion clauses; they’re like siblings with opposite personalities who somehow share a bedroom. One protects religious practice. The other blocks government from promoting or pressuring religion. And the hardest problem in Religion Clause law is figuring out which one you’re dealing with before you even begin the legal analysis.

Today’s post is your road map.

Think of the Clauses as Two Traffic Signs

Free Exercise = No Religious Penalties.
The government can’t punish you, exclude you, or make life harder because you are practicing your faith.

Establishment = No Government Promotion of Religion.
The government can’t preach, coerce, endorse, or funnel public resources into religious activity.

Same terrain. Opposite concerns.

A simple rule of thumb:

If the government is burdening religion → Free Exercise.
If the government is promoting religion → Establishment.

And yet … real life is messy.

The Free Exercise Clause: Cases About Government Burdening Religion

Think of Free Exercise as the Constitution’s “don’t step on anyone’s rituals” clause.

The Key Questions

• Is the government’s rule creating a real-world conflict with someone’s sincere religious practice?

• Is the person being punished, excluded, fired, denied benefits, or forced to choose between obeying their faith and obeying the state?

If yes → you’re in Free Exercise land.

Classic Examples

1. The Sabbath Conflict
A Seventh-day Adventist is denied unemployment benefits because she won’t work on Saturdays. She isn’t asking the government to fund her religion—just not to penalize her for practicing it.
→ Free Exercise.

2. The Amish Education Dispute
Amish parents object to compulsory high school on religious grounds.
→ Free Exercise. The state can’t force a conflict without strong justification.

3. The Peyote Firing Case
Native American Church members are fired for using peyote in a religious ceremony; the state denies benefits.
→ Free Exercise, but the Court shifts doctrine: neutral, generally applicable laws usually apply even when they burden religion.

Hypothetical:

Your city bans incense because of a new anti-smog ordinance. A Hindu family argues that incense is part of puja.
→ Free Exercise. The law burdens their religious practice.

Whether they win depends on the details, but identifying the clause comes first.

The Establishment Clause: Cases About Government Promoting, Endorsing, or Pressuring Religion

The Establishment Clause is the “don’t make anyone feel like an outsider” clause.

The Key Questions

• Is government speaking, teaching, or promoting religious messages?

• Is government money funding religious activity?

• Are students or citizens pressured to participate in religion because the state is involved?

If yes → this is an Establishment Clause case.

Classic Examples

1. Classroom Ten Commandments
Mandatory Ten Commandments posters in public school classrooms.
→ Establishment. The state is promoting a religious code.

2. Graduation Prayer
A middle school graduation includes clergy-led prayer.
→ Establishment. Even gentle social pressure matters in school settings.

3. Aid to Religious Schools
The Court struggles with buses, textbooks, vouchers, and public employees working inside parochial schools.
→ The core question: Does public money support religious activity?

Hypothetical:

A school principal starts the day with:
“Let’s thank our Lord Jesus for another blessed morning.”

→ Establishment Clause, no question.
The issue isn’t student religion—it’s government religion.

The Really Hard Cases: When Both Clauses Seem to Apply

This is where most modern conflict happens.

Scenario A: Excluding Religion

A state creates a financial-aid program for playground safety upgrades but excludes religious preschools because they are religious.

Is this:

• Establishment (avoiding religious funding),
  or

• Free Exercise (discriminating based on religious status)?

Today’s Court says it’s Free Exercise:
Excluding religious groups from a neutral public benefit is discrimination.
→ The Free Exercise Clause wins.

Scenario B: Including Religion

A public school teacher leads daily prayer.
The school insists: “We’re including all faiths equally!”

Is this Free Exercise?
No.

This is Establishment:
Government is promoting religious practice in a coercive setting.

Why the Tension Exists

Because in many cases:

• including religion looks like establishment, and

• excluding religion looks like discrimination.

The modern Supreme Court has shifted steadily toward the Free Exercise side, especially in school-funding and public-benefits cases. But the basic distinction still matters:

The government can’t punish religion, and it also can’t preach it.

Understanding which danger you’re dealing with is the key to sorting every religion case that walks through the courthouse door.

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Teaching the Free Exercise Clause always feels a little like guiding people through a museum where the lighting keeps shifting. Bright, generous sunlight in one gallery. Harsh fluorescent glare in the next. A few rooms lit by a single flickering bulb. And hanging on the walls? A sequence of cases that reflect the country’s recurring anxiety about how to protect religious liberty in a pluralistic nation.

This week, we took that walk together, from Sherbert’s soft, warm glow to Smith’s sharp, cold rigidity, and into the complicated, often contradictory present. The Court seems torn between broad protection and firm categorical rules, but the deeper story isn’t just doctrinal. It’s cultural. It’s about what each era fears, and how those fears quietly reshape constitutional law.

The Era of Generosity: Sherbert and the Invention of Mandatory Exemptions

Our tour begins with Adele Sherbert, a Seventh-day Adventist who refused Saturday work and became the unlikely heroine of modern Free Exercise jurisprudence. When South Carolina denied her unemployment benefits, the Court stepped in and said the state couldn’t force her to choose between her faith and her livelihood.

Sherbert does something profound: it suggests that sometimes the government must bend, carving out space for religious practice even when a law wasn’t written with religion in mind. For a moment, that felt like a constitutional principle the Court would nurture.

The glow didn’t last.

The Long Retreat: A Slow Erosion Behind Bright Words

What followed Sherbert was a parade of cases that, one by one, quietly narrowed the promise of religious exemptions, even while pretending to apply strict scrutiny.

In United States v. Lee, the Amish employer still had to pay Social Security taxes despite deep religious objections. The tax system, the Court said, couldn’t survive exemptions. In Goldman, the Air Force could forbid an Orthodox Jewish officer from wearing his yarmulke indoors because military uniformity demanded deference. In Lyng, Native tribes lost access to sacred land because the government’s use of its own property (even if spiritually devastating) wasn’t “coercion.”

A strange pattern emerges: the Court speaks the language of Sherbert while hollowing out the substance. By the late 1980s, Sherbert’s test survives mostly in unemployment-benefit cases. Everywhere else, the Court is already retreating, quietly abandoning the balancing it once embraced.

Which brings us to the earthquake.

Smith: When the Court Stopped Whispering

In 1990, the Court stops pretending. In Employment Division v. Smith, Scalia declares that neutral, generally applicable laws do not violate the Free Exercise Clause, even if they hit religious practice head-on.

Two Native American Church members use peyote in worship. They’re fired. They lose unemployment benefits. And the Constitution, the Court says, has nothing to say about it.

Sherbert is confined to unemployment cases. Yoder becomes a “hybrid rights” anomaly. And free exercise becomes a shield against discrimination, not against burdens. The constitutional world shifts beneath everyone’s feet.

When Doctrine Meets the Culture Wars

Here’s where the story snaps into focus and where free exercise questions stop being theoretical and start appearing on the front page. School board fights. Foster-care contracts. Vaccine mandates. Zoning battles. Wedding-services cases.

What makes this moment so volatile is that both, those seeking exemptions and those resisting them, point to the old cases and claim continuity. But the real drivers are contemporary anxieties, and the Court is responding with a patchwork of new tools.

COVID and the Rise of Equal-Treatment Exemptions

In Tandon and the emergency-docket COVID cases, the Court holds that religious gatherings must be treated at least as well as any secular activity posing similar risks. If one secular comparator gets better treatment, strict scrutiny kicks in.

This isn’t Sherbert-style balancing. It’s an equality rule dressed up as neutrality.

Religious Foster Care & LGBTQ Rights

In Fulton, Catholic Social Services wins because Philadelphia’s rule contains an “individualized exemption.” But the deeper tension sits just beneath the surface: What happens when accommodating religious doctrine excludes LGBTQ families?

The Court sides with CSS but dances around the elephant in the room: Should Smith be overruled? Alito says yes. Barrett hesitates. Kavanaugh hovers. The majority stays silent. The question hangs in the air like smoke.

The Ministerial Exception: Religion’s Constitutional Safe Room

Meanwhile, in Hosanna-Tabor and Our Lady of Guadalupe, the Court builds a doctrinal fortress. When hiring or firing someone who performs religious functions, the Free Exercise and Establishment Clauses together create a constitutional immunity zone.

Here, Smith doesn’t even apply. This is the strongest form of religious autonomy the Court has recognized in decades. It’s a structural carve-out that protects religious organizations from government interference in their most intimate decisions.

Standing at the Crossroads

So where does this leave us? Right now, Free Exercise doctrine feels like standing at an intersection in shifting light. Smith is technically still the law, but it’s breathing shallowly. Everyone knows it’s fading even as no one wants to sign the paperwork.

Around it, the Court has quietly built an entirely different ecosystem: generous exemptions through equality principles in the COVID cases, structural autonomy walls in the ministerial exception cases, and a growing willingness to police secular comparators in ways the Sherbert Court never imagined.

And yet, despite all these maneuvers, the justices keep circling the same unresolved question: If Smith falls, what comes next? No one can quite agree. Some want the return of strict scrutiny. Some want a more nuanced standard. Some want to scrap the entire exemption model and start fresh. The result is a doctrine that feels simultaneously bold and hesitant, expanding at the edges while hollowing out at the center.

The arc from Sherbert to Lyng to Smith to Tandon isn’t just doctrinal evolution. It’s the story of a country whose religious landscape has transformed faster than its jurisprudence can keep up with. Each case marks a place where the Court responds not only to legal arguments but to the cultural currents swirling just outside the courthouse doors.

What Each Era Fears

If there’s one thread running through the last sixty years, it’s this: every era of Free Exercise doctrine reflects its anxieties.

The 1960s feared bureaucratic coldness and insisted on compassion. The 1980s feared an unworkable flood of exemptions. Smith feared judicial subjectivity and longed for crisp, bright lines. The COVID cases fear inconsistent treatment and fractured trust. The ministerial exception cases fear government intrusion into spiritual life.

And now? The Court fears itself—and the gravity of choosing the next standard.

We’re watching the doctrine stretch, strain, and occasionally snap under the weight of a country that has grown more diverse, more divided, more sensitive to inequality, and more suspicious of state power. Some days it bends with grace. Other days it stiffens and cracks. But always, the movement tells us something about the moment we’re in.

Free Exercise isn’t just an area of constitutional law. It’s America’s ongoing attempt to figure out how to live together when our deepest commitments collide with the machinery of government and with the commitments of our neighbors.

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On January 6, 2021, thousands of people gathered near the White House to protest the certification of the presidential election. The rally began as political expression: fiery, defiant, but within the long American tradition of dissent. Then it became something else. As the crowd marched to the Capitol, broke through barriers, and stormed the chambers of Congress, the question changed from politics to law: when does speech stop being protected by the First Amendment and become part of the crime itself?

The Legal Tests

The First Amendment protects a wide range of political speech, even speech that is angry, false, or deeply offensive. But, over the years, the Supreme Court has developed a few key limits:

• Incitement: Speech that is intended and likely to produce imminent lawless action. This standard comes from Brandenburg v. Ohio (1969).

• True threats: Statements that seriously express an intent to commit violence against a specific person or group.

• Facilitation: Speech that doesn’t just urge others to act but actually helps them do it by giving instructions, plans, or operational details.

If speech doesn’t fit into one of these narrow exceptions, it remains protected, even when it is harsh or irresponsible. The question for January 6 is which, if any, of these exceptions applies.

Applying the Standards

The rally speech that morning contained unmistakably strong language. The crowd was told to “fight like hell” or “you’re not going to have a country anymore.” They were urged to march to the Capitol and “stop the steal.” Supporters saw it as political theater, a metaphor for standing up and protesting. Critics saw it as a direct call to attack.

Under the Brandenburg test for incitement, the key questions are intent and imminence. Was the speech directed toward producing lawless action? And was that action likely to happen right away? Here, both seem plausible. The speech targeted a live event—the certification of the election—happening only minutes away. The crowd was fired up and ready to move. When violence erupted almost immediately, it showed how tightly connected the words and actions were.

It’s harder to call the speech facilitation, since it didn’t provide detailed instructions or tactical plans. Still, other organizers and extremist groups in the crowd had shared online posts and encrypted messages about what to bring, where to go, and how to breach the Capitol. All of this behavior fits the idea of facilitation more closely.

Nor does the rally speech easily qualify as a true threat, because it wasn’t directed at one particular person with a specific threat of violence. The danger was collective, not individual.

So the best fit is incitement: speech aimed at provoking immediate unlawful action, in a situation where that action was clearly likely to occur.

Protected or Not?

Under that reasoning, the January 6 speech falls outside the protection of the First Amendment. It wasn’t abstract debate or symbolic protest; it was a direct call to act at a specific time and place, in defiance of the law. The crowd’s rapid response shows that the words both expressed and mobilized anger.

That doesn’t mean every participant’s speech was unprotected, or that political protest should be chilled. The First Amendment continues to guard robust political expression. But the law also recognizes a line between persuasion and performance, between speaking and doing. On January 6, that line was crossed.

The Courts’ View So Far

Courts have been wrestling with these questions ever since. In Thompson v. Trump (2022), a federal district court in Washington, D.C. refused to dismiss civil suits filed by Capitol Police officers and members of Congress who said they were injured in the attack. The judge held that a jury could find that the rally speech “implicitly encouraged the use of violence or lawless action.”

And just this year, in January 2025, a federal appeals court agreed that the lawsuits could go forward. It ruled that former President Trump is not immune from civil liability for allegedly inciting the riot. The decision doesn’t resolve whether his speech was ultimately protected, but it means the question is serious enough to reach a jury.

The Broader Question

The First Amendment protects political speech because democracy depends on it. But it was never meant to protect violence disguised as speech. The hard question now is how to keep that line bright in an era when words can mobilize thousands in real time.

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Rice v. Paladin once seemed to answer a straightforward question: when speech is “purely functional”—when it gives step-by-step instructions for committing a crime—it can be treated as conduct, not advocacy. The Court suggested that words can sometimes behave like actions. But that line was drawn in 1997, in a world where “instruction” meant a printed book and “audience” meant whoever happened to find it.

The problem now is scale and medium. The internet has turned what Rice imagined as a narrow category into a sprawling ecosystem.

After the Oklahoma City bombing—the deadliest act of homegrown terrorism in U.S. history—researchers discovered that details about the device Timothy McVeigh used didn’t fade into obscurity. They spread. Online forums dissected the chemistry, archived the diagrams, and in some corners even refined them. The digital world became an inadvertent workshop: Usenet posts, archived “recipes,” entire libraries of tactical manuals explaining how to make explosives or avoid detection.

This wasn’t just fringe curiosity. It was a shift in the architecture of risk. A single instruction could now replicate itself endlessly across servers, continents, decades.

Transnational extremist groups understood that early. Jihadi magazines like Inspire didn’t merely preach ideology; they published operational instructions—the kind of “make a bomb in your kitchen” guides that were designed to turn a sympathizer into an actor. These were not abstract appeals. They were practical schematics wrapped in propaganda, a fusion of narrative and know-how intended to lower the threshold for violence. Once released, these materials scattered across encrypted channels, screenshot by screenshot, repost by repost.

The Christchurch mosque massacre in 2019 showed what this convergence can produce. The gunman wrote a manifesto, posted it online, and livestreamed his own attack. It wasn’t just an act of violence but a broadcast strategy. The internet became stage, amplifier, and archive. The shooter used platform dynamics to recruit, instruct, and perform, collapsing the distance between participation and observation. The event revealed how easily modern attackers can weave together ideology, instruction, and spectacle, leaving behind digital blueprints that others might follow.

Today, counterterrorism reports across Europe and elsewhere echo the same concern: increasingly, the materials fueling home-grown plots are not fiery sermons or ideological tracts but things that look very much like user manuals. Operational guides. DIY bomb instructions. “How-to” posts passed through encrypted chats. The digital environment makes facilitation cheaper, faster, and profoundly decentralized. One document, written once, can circulate indefinitely, giving technical capacity to thousands who would never have acquired it on their own.

This is where Rice feels both prescient and outdated. It drew a line between persuading and performing, between expressing a belief and teaching someone how to carry it out. But the internet blurs that line. Digital platforms collapse speech and action into a single moment: a manifesto with embedded instructions, a livestream that gives tactical cues, a chat room that walks a stranger through weapon modifications in real time.

The doctrinal question that once seemed narrow now feels uncomfortably expansive: When instruction is instantaneous, anonymous, and infinitely replicable, is it still speech in the constitutional sense? Or has it crossed into something the law should be permitted to treat as action?

The challenge for courts and lawmakers is no longer hypothetical. Treating this material as protected speech risks allowing instructional blueprints for violence to proliferate unchecked. Treating it as conduct risks sweeping in commentary, analysis, art, journalism, or political debate that brushes up against technical detail.

Rice asked whether a book could be conduct. The digital age asks something harder: when words can instruct, accelerate, and operationalize harm at scale, how do we draw lines that preserve constitutional freedoms without pretending that platforms and pamphlets have the same power?

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The First Amendment protects words, not weapons. But what happens when speech is so purely functional, so precisely designed to cause harm, that its value as expression disappears? That question lay at the heart of Rice v. Paladin Enterprises, a chilling case that tested how far the “marketplace of ideas” can stretch before it becomes a manual for murder.

The story began with a paperback titled Hit Man: A Technical Manual for Independent Contractors, published by Paladin Press. The book was not satire or fiction. It offered step-by-step instructions for contract killing: how to stalk victims, modify weapons, avoid detection, and destroy evidence. When a Maryland man followed those instructions to commit a triple murder, the victims’ families sued the publisher for aiding and abetting the crime.

Paladin’s defense rested on the First Amendment. The company argued that its book was speech, not conduct, and therefore shielded by Brandenburg v. Ohio (1969), which protects even inflammatory advocacy unless it is intended and likely to produce imminent lawless action. The Fourth Circuit disagreed. It held that when speech is “purely functional,” it falls outside Brandenburg’s protection.

This was the crucial shift: when expression operates as a mechanism for crime rather than an argument about it, courts bypass the Brandenburg test. Brandenburg asks whether a speaker advocates violence; Rice asked whether the speech performs it. A how-to manual, the court reasoned, does not invite debate or persuasion—it provides operational support for harm. Its value is utilitarian, not expressive, and its danger is entirely foreseeable.

In criminal law, intent is non-negotiable. Foreseeability alone (knowing that someone might misuse your words) isn’t enough for criminal conviction.

A journalist writing an article about how guns operate isn’t criminally liable if someone later uses that information unlawfully.

But a person who gives those same instructions to help a specific attacker crosses into aiding-and-abetting territory.

That’s why Rice was a civil case. The publisher could be sued because it foreseeably caused harm, but criminal punishment would have required proof that Paladin acted with the intent to assist murder. (Paladin’s stipulation that it intended its manual to help killers would, in theory, satisfy that element.)

The difference between incitement and facilitation drives this logic. Incitement involves urging others to act, and its danger lies in persuasion and immediacy. Facilitation involves enabling the act; its danger lies in instruction and assistance. The former concerns motivation; the latter concerns means. When speech operates as a weapon of function rather than a vehicle of belief, courts treat it not as expression but as conduct.

Rice doesn’t undermine Brandenburg; it defines its edge. Brandenburg protects even hateful advocacy so long as it stays in the realm of persuasion. Rice denies protection to speech that transforms persuasion into performance.

That’s the border between liberty and liability. The First Amendment’s promise ends when words cease to argue and begin to do.

Doctrinal sum-up:

Facilitation occurs when speech provides the means or tools for committing a crime (instructions, blueprints, or operational guidance) rather than merely encouraging it.

Unlike incitement, which aims to persuade, facilitation enables; its danger lies in function, not advocacy, because the speech itself helps make the unlawful act possible.

In 1969, the Supreme Court drew a sharp new line in the sand. In Brandenburg v. Ohio, the Court held that even inflammatory advocacy of violence is protected unless it is intended to incite and likely to produce imminent lawless action. That two-part test (intent + imminence) finally gave precision to what Holmes had only hinted at in his Abrams dissent fifty years earlier. The decision transformed free speech law by turning fear of radical speech into a constitutional virtue: danger had to be real, immediate, and deliberate before government could silence it.

The facts were as jarring as the principle. Clarence Brandenburg, a Ku Klux Klan leader, invited a television crew to film a rally where men in robes carried guns and talked about “revengeance” on the government. Ohio convicted him under a criminal-syndicalism statute forbidding advocacy of violence. But the Court reversed, explaining that speech advocating the use of force or lawbreaking cannot be punished unless it is directed to inciting imminent illegal action and likely to produce it. In other words, abstract calls for revolution are protected; only explicit instructions to act, likely to succeed in the moment, are not.

That narrow window where speech crosses from idea to action has guided every incitement case since. It recognizes that democracy needs breathing space for rhetoric that is heated, provocative, even reckless. The First Amendment protects not only calm deliberation but the passions that fuel political movements. Still, the line is fragile. The Court would spend the next decade clarifying how close to the edge a speaker may go before protection ends.

Three years after Brandenburg, the Court faced Hess v. Indiana (1973), a protest case born out of the Vietnam era. A college demonstrator shouted during a tense confrontation with police, “We’ll take the f***ing street later!” He was convicted of disorderly conduct for inciting a riot. The Supreme Court reversed, holding that Hess’s words were vague, future-oriented, and shouted in frustration, and therefore did not meet the Brandenburg threshold. The Court reasoned that “later” was not “imminent”; the statement expressed defiance, not direction. It was precisely the kind of political hyperbole that the First Amendment shelters, even when it offends or alarms.

Hess reaffirmed the constitutional distinction between advocacy and incitement, but it also captured something subtler: the recognition that political language often operates in the register of emotion rather than instruction. Democracies must tolerate the anger that accompanies protest, or risk flattening civic life into silence. To punish a speaker for saying “we’ll take the street later” would be to punish a mood, not a threat.

That insight deepened a decade later in NAACP v. Claiborne Hardware Co. (1982), one of the most important free-speech and civil-rights decisions of the twentieth century. In the 1960s, civil rights activists in Mississippi organized a boycott of white-owned stores. At mass meetings, local NAACP leader Charles Evers gave fiery speeches warning that those who broke the boycott would be “disciplined.” When some boycotters later engaged in violence and intimidation, white merchants sued the NAACP for damages, arguing that Evers’s words had incited the attacks. The Court disagreed. It held that Evers’s passionate, even menacing rhetoric was still protected political expression. Unless a speaker directly incites imminent violence, the First Amendment does not permit liability for the independent acts of listeners.

Together, Brandenburg, Hess, and Claiborne form a moral arc of restraint. They teach that democracy depends on tolerating speech that tests our patience and our nerves. The Constitution does not demand civility; it demands the willingness to allow fierce words in the hope that they will yield peaceful change.

The enduring lesson is that incitement law is less about danger than about trust. The state must trust citizens to hear ugly ideas without collapsing into violence, and citizens must trust that their government will not mistake dissent for disloyalty. From the Klan rally to the campus protest to the civil rights boycott, the Court’s message is the same: free societies draw their strength not from suppressing passion, but from enduring it.

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Every modern free-speech case traces its lineage to a single moment in 1919, when Justice Holmes introduced the phrase “clear and present danger.” It was meant to replace vague fears of sedition with a rule that could distinguish protected ideas from punishable acts. But as the ink dried on Schenck v. United States, it was clear that Holmes’s new formula would raise as many questions as it answered.

The First Amendment had never before been tested in wartime. When Charles Schenck mailed thousands of leaflets urging men to resist the draft, the government charged him under the Espionage Act of 1917, a statute criminalizing interference with military recruitment. Formally, the Court was interpreting the Act, asking what “obstructing” the draft meant. But the question could not be answered without deciding how far Congress could constitutionally go in punishing speech. Holmes’s “clear and present danger” test tried to reconcile those two levels of analysis: the statute’s reach and the Constitution’s limits. Speech could be punished, he wrote, only when it created a clear and immediate danger of bringing about a substantive evil that Congress had the power to prevent. His image of “falsely shouting fire in a theatre” captured the intuition that words could cause harm as real as action.

Yet in practice, Schenck looked much like the old law of sedition it sought to replace. The Court upheld Schenck’s conviction even though his pamphlets urged only peaceful protest. Within months, Holmes repeated the pattern in Frohwerk and Debs, affirming convictions of antiwar writers and speakers whose words had merely a “natural tendency” to cause disloyalty. Despite its new name, “clear and present danger” operated as “bad tendency” by another label, allowing punishment of speech that might, someday, encourage illegal acts. Wartime fear made the danger feel perpetually clear and always present.

The older “bad tendency” rule came from English common law on sedition: speech could be punished if it merely tended to undermine authority or provoke unrest, even if no harm occurred. Holmes wanted to move beyond that tradition, to require something more immediate and concrete. But his early opinions blurred the line between advocacy and incitement. As Judge Learned Hand warned, once the test becomes “a matter of degree,” judges and juries will always find the danger grave enough. “The jig is up,” Hand wrote, meaning, discretion had swallowed principle.

Hand had already tried to solve the problem two years earlier in Masses Publishing Co. v. Patten (1917), a case involving a socialist magazine denied postal access for criticizing the war. He proposed a simpler rule: only direct incitement to illegal acts —(explicit words urging others to break the law) could be punished. Everything short of that was protected. “If one stops short of urging upon others that it is their duty or their interest to resist the law,” Hand wrote, “it seems to me one should not be held to have attempted to cause its violation.” His approach focused on what the speaker said, not what listeners might do. It offered a bright line rooted in language rather than fear.

Hand’s decision was swiftly overturned, and The Masses was silenced. But his insight endured: that deference to speculation about danger gives government—and juries—too much power over dissent. Holmes would come to see the truth of that warning later that same year, in his dissent in Abrams v. United States. There, he reinterpreted his own test, insisting that only “a present danger of immediate evil” could justify punishment, and introducing the “marketplace of ideas” metaphor that became the heartbeat of modern free-speech theory.

The evolution from Schenck to Abrams marked a profound shift: from fear of disorder to faith in discourse. The “clear and present danger” test, tightened by Holmes and expanded by Brandeis, eventually gave way to the Brandenburg v. Ohio standard in 1969, requiring both intent to incite and likelihood of imminent lawless action. Hand’s formalism and Holmes’s consequentialism finally converged: speech could be punished only when words became weapons, not merely when ideas became unpopular.

The enduring lesson of 1919 was that democracy cannot survive by silencing what it fears. It survives by trusting that truth, in open competition, is the stronger force.

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