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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For most of human history, your mind was the one place no one could enter without your consent. That’s no longer guaranteed. In this episode, I explore the emerging world of neurotechnology, from neural data privacy laws in Colorado to Chile's recognition of mental privacy as a constitutional right. I ask the question that courts and citizens are only beginning to confront: if your thoughts can be read, predicted, and used against you, what does freedom actually mean?

Senior officials are urging Americans to pray for military victory in explicitly Christian terms, service members are filing complaints about commanders framing war as God’s divine plan, and Christian prayer services are being organized inside federal agencies. The Constitution permits faith in public life, but it draws a line between making room for religion and using government authority to promote it.

This piece traces where that line sits today, how the Supreme Court has moved it, and why it’s so hard to draw that line.

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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Last November, I argued that Chiles v. Salazar was not really about religion. The more consequential development was quieter. Challenges to conversion therapy bans had migrated from Free Exercise to free speech. That shift, I suggested, would change the constitutional terrain on which these cases are decided.

The Court’s decision, handed down today, confirms that analysis.

The Case Colorado Lost Before It Argued It

Colorado’s law prohibited licensed therapists from using talk therapy to help minors change their sexual orientation or gender identity. The state defended it as a health measure, grounded in professional consensus that conversion therapy is ineffective and harmful. Justice Jackson’s dissent catalogs that evidence at length.

None of it moved the majority.

Not because the Court doubted the evidence, but because the evidence was beside the point. Once the Court accepted that Kaley Chiles’s counseling sessions were speech, Colorado’s law faced a different constitutional test.

And under that test, the law could not stand.

Colorado argued that it was regulating professional conduct, not expression. The lower courts agreed. The Supreme Court did not. Chiles does not prescribe medication or perform procedures. She talks. That was enough. If speech is what she does, then speech is what the state is regulating, whatever label it prefers.

From there, the rest followed quickly. The law did not simply restrict what Chiles could say. It dictated which viewpoint she could express. A therapist may affirm a minor’s identity. She may not encourage change. One message is permitted. The other is forbidden. That, the Court said, is viewpoint discrimination, the most disfavored form of speech regulation the First Amendment recognizes.

Once the case was framed that way, the outcome was effectively decided.

The Shift Has Reached Professional Regulation

The point I made in November was not about how this case would be labeled. It was about where these cases are going.

That shift was already visible. In 303 Creative v. Elenis, a dispute rooted in religious motivation was resolved entirely through speech doctrine. Free Exercise receded. Expression did the work.

Chiles extends that trajectory into a new domain. It applies core speech principles to the regulation of licensed professionals in a clinical setting.

That matters because the doctrinal consequences are substantial. Under Employment Division v. Smith, a neutral and generally applicable law like Colorado’s would likely survive a Free Exercise challenge. Reframed as a speech claim, the same law triggers strict scrutiny. The focus shifts from the law’s purpose and effects to the character of the restriction itself. Colorado could not meet that standard.

Justice Kagan’s concurrence gestures toward a narrow path forward. A content-based but viewpoint-neutral law, she suggests, might be treated differently. It is a careful caveat, not a roadmap. What counts as viewpoint neutral in this setting remains unclear.

Justice Jackson’s dissent identifies the argument the majority rejects. She reads NIFLA v. Becerra to allow states to regulate professional conduct even when that conduct is delivered through speech, so long as the regulation targets treatment rather than ideas. Colorado’s law, in her view, fits that model. Whether or not one agrees, her opinion underscores the tension the majority resolves more than it explains.

The Consequences Extend Far Beyond This Case

The Court is careful to describe its holding as narrow. It addresses only the as-applied challenge before it. But the reasoning is not so limited.

Much of modern healthcare is delivered through conversation. Addiction counseling, eating disorder treatment, suicidality intervention, end-of-life support, and grief therapy often consist entirely of speech. If those interactions are treated as fully protected expression, the state’s ability to regulate them becomes more uncertain.

The Court does not say how far its logic extends. It does not need to.

What Comes Next

The debate over conversion therapy 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.

States that seek to regulate therapeutic practices will have to draft with care. Laws that turn on the viewpoint a therapist expresses will face serious constitutional obstacles. Justice Kagan suggests that more carefully framed regulations might survive, but the contours of that possibility remain unclear.

The Court’s recent cases had already pointed in this direction. Chiles carries that logic into the regulation of professional practice, where the stakes are high and the answers are unsettled.

What remains is a narrower and more uncertain space for regulation. What comes next will depend on how legislatures attempt to occupy it.

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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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Colorado’s ban on conversion therapy might seem, at first glance, like a classic religious liberty case. For decades, challenges to similar laws were brought by counselors or parents who claimed a religious obligation to guide a child away from same-sex attraction or toward a traditional understanding of gender. That religious framing shaped both the litigation strategy and the public imagination. But Chiles v. Salazar is different. The challenge now arrives at the Supreme Court not as a religious liberty claim, but as a free speech claim, and that shift is precisely what makes the case so significant.

Kaley Chiles is a licensed counselor who wants to talk with minors about what she calls unwanted same-sex attraction or gender dysphoria. Colorado’s statute prohibits licensed therapists from engaging in any practice “that attempts or purports to change a client’s sexual orientation or gender identity,” including efforts to change “behavior, gender expression, or attraction.” For the state, the law protects minors from harmful, discredited practices. For Chiles, it “prophylactically bans voluntary conversations” and censors a viewpoint the government disfavors.

The core of Chiles’s argument is that therapy is, at bottom, talk. If the government cannot compel professionals to say certain things (as held in NIFLA v. Becerra (2018)) it also cannot forbid them from expressing certain ideas, even ideas the medical community overwhelmingly condemns. In this framing, conversion therapy is not a clinical intervention but a message the state has decided is unacceptable.

This argument reflects a broader trend in the Court’s recent cases. In 303 Creative v. Elenis, a dispute rooted in religious motivation was resolved entirely through compelled speech doctrine. Free Exercise receded from the analysis. Expression did all the work.

Chiles follows the same pattern. Under Employment Division v. Smith, Colorado’s neutral ban would almost certainly withstand a Free Exercise challenge. But a free speech claim triggers strict scrutiny, a standard far more skeptical of government motives and far less attentive to third-party harms. When professional counseling is reframed as pure expression, the state’s ability to regulate practices affecting minors becomes constitutionally fragile.

This shift has consequences that extend well beyond conversion therapy. Suicidality counseling, eating disorder treatment, addiction treatment, gender affirming care, grief counseling, and end-of-life support are all delivered primarily through spoken conversation. If talk-based therapy is treated as protected speech rather than professional conduct, substantial areas of public health regulation become more legally vulnerable.

The oral argument underscored this tension, not as the center of the case, but as a lens into how the Court currently understands the uneasy boundary between professional regulation and expression.

Several justices pressed Colorado on whether it had ever enforced the law. The state pointed to six years of non-enforcement and told the Court it would not apply the statute to the kind of “consensual talk therapy” Chiles says she offers. Justice Sotomayor stated the issue directly:

“We have basically six years of no enforcement ... and we have the entity charged with administering the law saying we’re not going to apply it to your kind of therapy.”

Chiles’s attorney argued that Colorado had not truly disavowed enforcement. But the exchange revealed something deeper: Chiles insists the statute plainly covers what she does, while Colorado insists it does not. The result is an unusual dynamic in which the state aims to defeat the lawsuit by narrowing the very statute the legislature passed to protect minors.

That difficulty is not incidental. It reflects the precarious position states face when trying to regulate counseling practices under the Court’s current First Amendment approach. The more Colorado characterizes conversion therapy as professional conduct, the easier it is to defend the statute. But the more therapy is framed as speech, the harder it becomes to justify any limits on its content.

Meanwhile, the medical consensus remains unequivocal. Every major national health organization — the APA, AMA, AAP, and American Psychiatric Association — condemns conversion therapy for minors as ineffective and harmful. The APA’s 2009 task force found heightened risks of depression, suicidality, and internalized shame. Yet contemporary First Amendment doctrine gives diminishing weight to professional consensus. Courts increasingly view scientific disagreement not as grounds for regulation but as evidence that the state is policing ideas.

This is why the shift from religion to speech matters so profoundly. Free Exercise doctrine, despite its disputes, at least acknowledged the reality of third-party harms. Free speech doctrine does not. Once a claim is recast as viewpoint discrimination, the effects on minors become secondary.

This is the larger story that Chiles v. Salazar brings into focus. The case is not simply about LGBTQ youth or parental authority. It is a bellwether for how the Court may redraw the line between professional regulation and expressive freedom.

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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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We’ve been studying Texas v. Johnson in my constitutional law class, a 1989 Supreme Court decision that struck down laws punishing people for burning the American flag. For most students, the case feels like a relic of another era, when flag-burning protests over Vietnam or Reagan-era policies made national news. But on August 25, President Trump issued a new executive order directing federal agencies to “prosecute the burning of the American flag to the fullest extent permissible.” Now, a case we would have read as history has become a live constitutional controversy.

The order opens with lofty, almost devotional language about the flag as “the most sacred and cherished symbol of the United States.” It frames flag burning as “a statement of contempt, hostility, and violence against our Nation,” and calls on the Justice Department to use every available legal tool—from criminal statutes on arson and disorderly conduct to immigration penalties for foreign nationals—to target acts of desecration. It promises to “restore respect and sanctity” to the flag, as if reverence could be legislated back into public life.

But the order also betrays an awareness of constitutional limits. It concedes that Johnson protects flag burning as symbolic speech, yet tries to carve out exceptions. It argues that the Supreme Court never held that flag desecration “likely to incite imminent lawless action” or that counts as “fighting words” is protected. On the surface, that sounds like a clever legal maneuver, a way to punish flag burning without directly contradicting Johnson. In reality, both exceptions are so narrow, and so rarely applied, that they offer almost no room for new prosecutions.

“Imminent lawless action” is the modern test for incitement, a category the Court defined during the Vietnam era to protect political speech from overbroad censorship. It applies only when words are intended and likely to spark immediate violence—like a speaker urging a crowd to attack right now. It’s hard to imagine a flag-burning protest meeting that threshold.

The “fighting words” doctrine is even more fragile. It comes from a 1942 case, Chaplinsky v. New Hampshire, which upheld the arrest of a man who hurled personal insults at a police officer in the street. The Court described “fighting words” as speech so directly abusive that it provokes an immediate punch. But the Court hasn’t used that doctrine to uphold a conviction in over eighty years. Since then, it has protected Vietnam draft protests, racist rallies, and even Westboro Baptist Church’s hateful funeral demonstrations, all on the ground that offensive ideas, however painful, are still ideas.

Why has “fighting words” fallen out of use? Because over time, the Court recognized that protecting only polite or agreeable speech empties the First Amendment of its purpose. The test of free expression isn’t how we treat speech we admire, but how we handle speech that enrages us. A democracy cannot function if every insult or symbol of dissent becomes a trigger for prosecution. Modern courts assume that adults in a free society have a duty to tolerate offensive words, rather than silence them through law enforcement.

That history matters now. When an executive order declares that it will prosecute flag burning to “restore respect and sanctity” to the flag, it’s invoking the same logic that Johnson explicitly rejected: that the government may punish expression because it feels offensive, divisive, or unpatriotic. Wrapping that motive in the language of “law and order” or “fighting words” doesn’t change what it is: a viewpoint-based effort to police dissent.

The order doesn’t create a new crime, but it encourages prosecutors to stretch old ones and to see how far they can go in blurring the line between speech and sacrilege. That might win political points, but it risks something far greater: eroding the very freedom the flag is supposed to represent.

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Among constitutional rights, free speech wears the golden shield. It is the right we imagine as absolute: untouchable, radiant, a mark of a free society. Yet the real story of the First Amendment is not purity but tension: a constant struggle between the urge to protect speech at all costs and the need to manage its collision with other values.

Once you accept that speech deserves special protection, the next question becomes: how special? Justice Hugo Black answered by taking the text literally. “Congress shall make no law…” meant exactly that—no exceptions, no balancing acts, no judicial trimming. For him, the framers already weighed freedom and order in 1791; the Court’s only duty was to enforce their decision. Absolutism, to Black, was a moral commitment. Every “reasonable” exception, he warned, chipped away at freedom until it disappeared entirely.

Justice Felix Frankfurter admired that purity but found it impossible. Rights, he believed, don’t exist in isolation. Speech collides with security, protest with order, liberty with equality. Ignoring those conflicts, he argued, doesn’t make them go away. The judge’s task was to acknowledge them honestly, to balance competing interests in light of real-world context. Where Black saw the Constitution as a fixed rulebook, Frankfurter saw it as a living framework for managing tension in a pluralistic democracy.

The absolutist vision was powerful but brittle. The Court soon faced cases that shattered its simplicity. During World War I, anti-draft activists were convicted under the Espionage Act for distributing leaflets opposing military service. In Schenck v. United States (1919), Justice Holmes introduced the “clear and present danger” test, allowing punishment for speech that posed an imminent threat to lawful order. Later cases extended that logic. Even Holmes and Brandeis, the era’s great free speech champions, accepted that words could be regulated when they crossed into incitement. Absolutism gave way to pragmatism.

To navigate this new complexity, the Court developed two methods: categorization and balancing. Categorization gives us rules that define which types of speech fall outside constitutional protection. These “unprotected” zones include obscenity, fighting words, incitement, true threats, and defamation. Categorical rules are simple and predictable. They tell us, in theory, where the line lies. But the categories themselves are products of history; moral judgments frozen in time. What counts as “obscene” or “dangerous” says as much about the fears of one era as it does about any universal truth.

Balancing, by contrast, rejects rigid boxes. It treats each case as unique, weighing the value of speech against the government’s justification for limiting it. In United States v. O’Brien (1968), the Court upheld a law against burning draft cards, balancing the protestor’s expressive intent against the state’s need to maintain its draft system. In Pickering v. Board of Education (1968), it balanced a teacher’s right to criticize the school board against the school’s interest in efficiency. And in New York Times v. United States (1971)—the Pentagon Papers case—it sided with the press after balancing secrecy against democratic accountability. Balancing makes doctrine more flexible, but also more unpredictable. It depends on judicial judgment rather than bright lines, and that discretion can shift with culture or politics.

In practice, the two methods coexist. Even strict scrutiny, which seems like balancing, often operates as a categorical rule because speech almost always wins. And most “unprotected” categories began as balancing tests that hardened into rules. As scholars put it, “categories are balancing in disguise.”

Justice John Paul Stevens once observed a similar pattern in Equal Protection law. He criticized the Court’s rigid tiers of scrutiny as relics of their moral moment—hierarchies that reflected which struggles felt urgent at the time. The same is true of free speech. The lines we draw around “low-value” speech—obscenity, commercial advertising, fighting words—encode the moral vocabulary of the past. Each category is a snapshot of what an earlier generation feared most: indecency, disorder, manipulation. Those judgments linger long after the culture that birthed them has moved on.

Both absolutism and balancing seek to defend the golden shield, but in different ways. Categorization offers stability; balancing offers adaptability. Yet neither escapes history. The First Amendment, like the society it protects, is a living record of shifting values. It is proof that even our most cherished freedoms evolve with time, testing again and again what it truly means to speak freely.

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This essay continues our look at power-critical theories of speech, i.e., the frameworks that ask what it means to protect “free expression” in a world where power shapes who is heard and who is silenced.

The challenge for these theories is never just about drawing lines. It’s about who holds the pen.

Even if we could agree on what counts as subordinating speech (speech that silences instead of liberates), there remains the harder question: who decides? Because the moment law or policy begins to act on these theories, the power to define emancipation itself becomes a kind of authority. And that authority, as history keeps reminding us, rarely stays in the hands of those it was meant to protect.

Who Gets to Judge?

Power-critical theories ask government to do something ambitious: not just to prevent censorship, but to counteract inequality in the realm of speech itself. Yet any institution we empower to do that carries its own risks. Legislatures are democratic, but also majoritarian. Courts promise neutrality, but judges are products of the same hierarchies these theories expose. Agencies might have expertise, but they are easily politicized.

Imagine giving a legislature the power to decide which speech “subordinates.” Would it have protected abolitionist pamphlets in the 1830s, feminist protests in the 1910s, or civil-rights marches in the 1960s? Each of those movements was once described by those in power as dangerous to “public order.” Even today, many governments use the language of equality to suppress dissent. They argue that protest movements “divide society” or “offend traditional values.” The danger is not theoretical; it is cyclical. Power-critical tools can be turned against their own logic the moment political winds shift.

Courts fare no better. Asking a judge to decide which speech is emancipatory means asking her to take sides in the moral and political conflicts of the day. That sits uneasily with the rule-of-law ideal that judges apply neutral principles rather than moral hierarchies. Yet refusing to make such judgments leaves the deeper inequalities untouched. The dilemma is built in: the same system that promises protection from domination is also structured by it.

Even within the groups these theories aim to protect, there is no single consensus. MacKinnon’s claim that pornography silences women was—and remains—contested by feminists who see sexual expression as a form of agency. Many minority advocates resist hate-speech bans, arguing that they could be used to stifle the very voices they intend to shield. The “subordinated” are not a single, unified subject; they disagree about what liberation looks like. Any law that claims to speak for them risks speaking over them.

The Fear of Orthodoxy

That is why the legitimacy problem runs deeper than institutional design. It is a problem of trusting any authority to enforce a vision of justice without ossifying it into orthodoxy. Once the state acquires the power to declare which speech uplifts and which oppresses, the meaning of liberation becomes fixed by law. And when power changes hands, the same machinery can be redeployed in the opposite direction.

The First Amendment’s traditional insistence on viewpoint neutrality was built to prevent exactly that: to stop government from picking winners in moral debate. Power-critical theorists reply that neutrality itself is a myth because it quietly sides with those already on top. Both are right. Neutrality can protect the strong; partiality can be abused by the powerful. Between them lies the tension that defines modern free-speech theory.

Some scholars try to make the project legitimate by layering procedural safeguards: focus on context, not content; limit rules to documented patterns of silencing; add due process, clear definitions, and periodic review. These are valuable guardrails, but they don’t solve the core dilemma. Even the most carefully crafted rule still requires someone to decide what counts as “silencing,” what counts as “subordination,” and when the remedy has gone far enough. The danger is permanence. A temporary corrective can harden into a standing orthodoxy, freezing one generation’s moral vision into law.

The better answer, perhaps, is humility: treat such interventions as tools for transitional justice in speech, not instruments of permanent truth. Power-critical theories remind us that freedom without equality is an illusion. But equality without freedom becomes its own kind of cage. The goal is to balance on that edge and use power to open speech spaces, not to define them forever.

The same logic appears in another part of constitutional law: affirmative action. Both projects begin from the recognition that neutrality can entrench inequality when the playing field is tilted. Just as MacKinnon and Marcuse proposed temporary rebalancing to ensure all voices could be heard, affirmative action relied on time-limited preferences to ensure all people could compete. Justice O’Connor famously suggested in Grutter v. Bollinger that such measures should not be necessary in 25 years, a horizon meant to mark them as transitional, not permanent. But Students for Fair Admissions closed that window early, declaring the time for race-conscious remedies already past. The same uneasy questions remain: When does a remedy become its own form of hierarchy? How do we know when to stop? And can any society committed to equality ever truly return to “neutral” once it has seen how uneven the field has been all along?

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Power-critical theories like those of Catharine MacKinnon and Herbert Marcuse start from a powerful intuition: speech is not neutral. Words, images, and media systems can reproduce inequality by shaping who gets heard and who disappears. Their shared project is to make equality and not just liberty a core part of how we think about free expression.

But once we accept that premise, a thorny question follows: who decides what counts as emancipatory and what counts as oppressive? The moment theory meets law or policy, we enter the world of definitions, criteria, and judgment calls. This is what scholars call the line-drawing problem, and it’s one of the hardest challenges for any power-critical approach to speech.

What Counts as Subordination?

Take MacKinnon’s claim that pornography silences women. She defines it as “the graphic sexually explicit subordination of women through pictures and words.” But who decides what counts as “subordination”? Does that include artistic nudity? What about romance novels that reinforce traditional gender roles, or sex work created by women who see it as empowering? A rule designed to protect women’s equality might end up silencing women’s own voices about sex and desire.

The same problem appears in hate speech debates. Almost everyone agrees that racial slurs shouted at an individual are harmful. But what about satire that uses slurs to mock racism? Or religious speech that some find demeaning to LGBTQ people but others view as a statement of faith? Or political criticism of Israel that some hear as antisemitic? The challenge isn’t only in identifying clear cases of harm but in drawing principled boundaries between expression that wounds and expression that argues.

And context shifts everything. Protesters denouncing police violence might be condemned as hateful by some and celebrated as truth-tellers by others. Even on campus, a controversial speaker might be seen as either challenging orthodoxy or making marginalized students feel unsafe. The same words can silence or liberate depending on who speaks, who listens, and what history lies behind them.

The Moving Target of Meaning

The line-drawing problem also evolves with time. Speech that once seemed progressive may later be viewed as oppressive, and vice versa. Feminist writing once attacked for obscenity is now taught in law schools; activist slogans once condemned as divisive are now quoted in public ceremonies.

That temporal instability poses a deeper challenge: if the meaning of subordination changes, who gets to decide when and how the list of forbidden or restricted speech updates? Power-critical theorists worry about entrenched hierarchies, but any regulatory system risks creating an official class of interpreters who decide which voices count as liberating and which as dangerous.

Why the Line Still Matters

None of this means power-critical theories are wrong to see harm in speech. They reveal something traditional doctrine often ignores: that “free speech” can operate in profoundly unequal conditions. But they also face a built-in dilemma. The more they try to define and police subordinating speech, the more they risk reproducing the same domination they want to dismantle—this time through regulation instead of silence.

That’s why the most thoughtful versions of these theories move toward contextual criteria rather than fixed categories. They look not for “bad ideas,” but for patterns of silencing: repeated, targeted behavior that drives certain people out of participation. They recognize the importance of due process, narrow tailoring, and sunset clauses—ways to ensure that remedial measures don’t harden into permanent orthodoxy.

But even with these safeguards, the problem of judgment remains. Line-drawing isn’t a technical glitch but the moral and political core of the entire debate. It forces us to confront the reality that equality and freedom often point in different directions, and that deciding between them will always require contestation, not consensus.

In the next post, I’ll turn to “The Legitimacy Problem”—the question of who gets to decide when speech crosses the line, and how to prevent power-critical frameworks from becoming new instruments of control. The post will also connect these tensions to the logic of affirmative action, where law tried to favor the disadvantaged without freezing its own sense of justice in time.

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