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

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

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

Today’s post is your road map.

Think of the Clauses as Two Traffic Signs

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

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

Same terrain. Opposite concerns.

A simple rule of thumb:

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

And yet … real life is messy.

The Free Exercise Clause: Cases About Government Burdening Religion

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

The Key Questions

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

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

If yes → you’re in Free Exercise land.

Classic Examples

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

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

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

Hypothetical:

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

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

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

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

The Key Questions

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

• Is government money funding religious activity?

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

If yes → this is an Establishment Clause case.

Classic Examples

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

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

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

Hypothetical:

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

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

The Really Hard Cases: When Both Clauses Seem to Apply

This is where most modern conflict happens.

Scenario A: Excluding Religion

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

Is this:

• Establishment (avoiding religious funding),
  or

• Free Exercise (discriminating based on religious status)?

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

Scenario B: Including Religion

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

Is this Free Exercise?
No.

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

Why the Tension Exists

Because in many cases:

• including religion looks like establishment, and

• excluding religion looks like discrimination.

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

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

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

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

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

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

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

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

The glow didn’t last.

The Long Retreat: A Slow Erosion Behind Bright Words

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

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

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

Which brings us to the earthquake.

Smith: When the Court Stopped Whispering

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

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

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

When Doctrine Meets the Culture Wars

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

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

COVID and the Rise of Equal-Treatment Exemptions

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

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

Religious Foster Care & LGBTQ Rights

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

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

The Ministerial Exception: Religion’s Constitutional Safe Room

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

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

Standing at the Crossroads

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

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

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

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

What Each Era Fears

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

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

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

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

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

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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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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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Herbert Marcuse, a mid-20th-century philosopher, looked at free speech through the wider lens of politics, economics, and media power. He argued that modern societies often look tolerant but, in reality, control opinion through structure rather than censorship. You can say almost anything, but hardly anyone will hear you if your words challenge those in power.

Marcuse called this repressive tolerance. It’s “tolerance” because no one is burning books or jailing dissenters. But it’s “repressive” because the system quietly decides what ideas get traction. The problem isn’t that speech is banned but that the conditions of communication are rigged. The result: a society that appears free while keeping the status quo firmly in place.

Repressive Tolerance: Everything Is Allowed, But Little Is Heard

Marcuse’s key question is: Who owns the microphone?
Sure, all speech is technically allowed. But who owns the TV networks, the news sites, the social platforms, the ad money? If a handful of corporations control what billions of people see and hear, then the “marketplace of ideas” isn’t really open. It’s fenced off by profit and power.

Think about media today: a few companies own most television channels, newspapers, and streaming apps. They depend on advertising and clicks, so they play it safe. News that challenges corporate or political interests, like stories about labor rights, poverty, or systemic racism, often gets little airtime. On social media, the same thing happens through algorithms: outrage and celebrity gossip rise to the top; complex discussions about equality sink to the bottom.

For Marcuse, this is the new face of control. We no longer need censors when the system itself ensures that dissent barely registers. People feel free, but their speech has no effect. That, he says, is the trick of repressive tolerance.

Liberating Tolerance: A Short-Term Tilt Toward Justice

Marcuse’s answer is something he calls liberating tolerance. He argues that when the field is deeply unequal, simply saying “everyone can speak” is not neutral; it’s a way of protecting domination. So, for a time, society should tilt the playing field toward speech that expands freedom and equality and give less automatic reach to speech that props up oppression.

That doesn’t mean installing thought police. Marcuse imagines practical, structural reforms:

• Break up concentrated media ownership so no single group controls the public conversation.

• Fund public-interest journalism that serves citizens rather than advertisers.

• Guarantee access for underrepresented communities through local and independent outlets.

• In education, teach critical literacy, i.e., how to question sources, spot manipulation, and understand power in communication.

• On social media, redesign algorithms to reward civic content and slow the viral spread of outrage and disinformation.

This temporary imbalance—what he calls liberating tolerance—isn’t meant to last forever. Once voices are genuinely equal in reach and opportunity, the rules can become neutral again. But until power is rebalanced, “neutrality” is a myth that benefits those already on top.

Why It Matters Now

Marcuse wrote these ideas in the 1960s, long before Facebook or YouTube. But his warnings sound almost tailor-made for the digital age. We live in a world where “free speech” often means “free to shout in a rigged arena.” Algorithms amplify anger, media conglomerates shape the news, and marginalized voices still fight for visibility.

Marcuse’s question remains urgent: If everyone can speak but only a few are heard, is that freedom, or just the illusion of it? His challenge to us is to think beyond formal rights and ask what real, equal communication would require. Sometimes, he says, the path to genuine freedom starts with changing the structure of the conversation itself.

Professor Catharine MacKinnon entered a world of First Amendment debate built on faith in the “marketplace of ideas.” The classic belief was that truth emerges when everyone can speak freely—the cure for bad speech is simply more speech. But MacKinnon turned that idea inside out. What if some people can’t speak back? What if speech itself becomes a tool of power, shutting some people out of the conversation altogether?

She begins with a simple observation: speech doesn’t happen in a vacuum. It happens in workplaces, classrooms, and media systems already shaped by inequality. When courts or institutions treat all speech as equal, they overlook how some forms of speech—harassment, threats, or slurs—work to silence others. The harm isn’t just hurt feelings; it’s the loss of participation. The real question, she says, isn’t “Did someone say something offensive?” but “Who can still speak after the words are said?”

Imagine a Black student who posts about racial bias on campus. Within hours, she faces hundreds of angry replies filled with racial slurs. Some users post her personal information. The platform’s algorithm then flags her own posts as “controversial,” limiting how many people see them. She stops posting. She avoids public events. She starts to disappear from view. No one has officially censored her, but she has been silenced all the same. Other people’s “free speech” has erased her ability to speak freely.

MacKinnon calls this dynamic subordination through speech. Her goal was to help the law see speech in its social context: Is it repeated? Is it targeted? Does it make certain people afraid to participate? When speech functions that way, she argues, it’s not just “expression” but a form of inequality that law should take seriously.

Her ideas reshaped civil rights law. Because of her work, U.S. law now recognizes that harassment (verbal or physical) can be a form of discrimination when it creates conditions that drive people out of workplaces or schools. This was a major shift: before MacKinnon, such behavior was often dismissed as personal or trivial. She helped make clear that equality means more than formal access; it means the real ability to participate fully without being demeaned or silenced. Today, workplace and campus policies against harassment, bias training, and complaint systems all reflect that insight. They are built not to police ideas, but to ensure everyone can belong and contribute on equal terms.

The same logic applies online. MacKinnon would say the goal isn’t to silence the attackers but to protect the target’s ability to stay in the conversation. That means creating systems that interrupt harassment before it drives people away: tools that limit mass attacks, fair reporting processes that don’t penalize victims, and designs that amplify underrepresented voices. In short, the solution is to build environments where everyone can speak safely and be heard.

Pornography and the Structure of Silence

MacKinnon’s most controversial example of this argument was her work on pornography. She didn’t see pornography as a matter of private fantasy or mere “expression,” but as a system of social messaging that teaches inequality. Pornography, she argued, doesn’t just say things about women—it does things to them. It constructs women as objects to be dominated and used. In a world saturated with these images, women’s speech about equality and dignity becomes unintelligible. Their real experiences are measured against a distorted script in which they exist for someone else’s pleasure.

MacKinnon called this a form of “sexual politics” built into speech itself. In her view, pornography works like a social institution, shaping how people imagine gender, sex, and power. It’s not neutral expression but instruction in subordination. That’s why she and Andrea Dworkin proposed laws framing pornography as a civil rights violation, giving women harmed by it the right to sue. The goal was not censorship for morality’s sake; it was empowerment. She wanted women to have a legal remedy for being represented as things rather than persons.

Though these proposals were struck down by courts as unconstitutional viewpoint discrimination, their ideas left a lasting mark. They pushed feminist theory and law to confront the question of whose speech counts in a supposedly free society. MacKinnon’s point was that the “marketplace of ideas” can’t be fair when some voices are systemically drowned out or defined by others. Protecting pornography as speech, she argued, doesn’t create freedom. Instead, it entrenches a speech hierarchy where some speak and others are spoken for.

For MacKinnon, freedom of speech and equality aren’t opposites. They depend on each other. A world that tolerates speech that silences others isn’t truly free. Real freedom of expression, she insists, requires more than the right to speak; it requires the power to be heard.

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One of the enduring mysteries of constitutional law is why the Supreme Court treats speech like sacred ground while letting almost everything else be paved over.

The government can tell you how to run your business, when to close your shop, and how tall your hedges can grow. But if it tells you what you can or can’t say about those hedges, suddenly we’re in constitutional crisis territory.

Since the New Deal, the Court has drawn a sharp line between economic regulation—which it defers to—and speech regulation, which it treats with suspicion bordering on paranoia. The result is that your right to speak about your business may be safer than your right to actually run it.

Holmes and the Split Between Markets and Ideas

No one dramatized this divide better than Justice Oliver Wendell Holmes.

In Lochner v. New York (1905), he mocked the idea that bakers had a constitutional right to set their own working hours. The Constitution, he said, doesn’t enact Herbert Spencer’s Social Statics. Translation: there’s no free-market clause.

But fourteen years later, in Abrams v. United States, Holmes had a revelation. When it came to speech, he insisted on a “free trade in ideas.” Truth, he said, emerges from competition in the marketplace of ideas.

So Holmes rejected laissez-faire for bread but embraced it for thought. The government could regulate your bakery—but not your beliefs. That contradiction still defines the Court’s double standard today.

Why Speech Gets the Golden Shield

Why does speech get special treatment? Three reasons usually surface:

1. The Text. The First Amendment specifically names speech and press. Economic liberty, by contrast, is inferred from vague concepts like “liberty” and “property.” Judges like specificity—it gives them firmer ground to stand on.

2. The Political Process. If the government controls speech, it can control elections, too. Silence the critics, shape the narrative, and democracy becomes self-government in name only. Free speech keeps power honest, or at least audible.

3. The Function. Justice Felix Frankfurter offered the most poetic rationale: civilization advances by replacing old errors with new truths. You can regulate commerce all you want; bad tax policy won’t end human progress. But if you regulate thought, “the process of thought itself becomes checked and atrophied.” Speech is how we adapt and evolve.

That’s why the Court protects not just political expression but also art, music, and even advertising—forms of communication that feed the same process of collective reasoning and imagination.

The Absolutists vs. The Balancers

Once you accept that speech deserves special treatment, the next question is: how special?

Justice Hugo Black took the phrase “no law” at face value. For him, it meant exactly that—no law. If Congress tried to restrict expression, the case was already over. The framers had balanced freedom and order back in 1791; the Court’s only job was to enforce that bargain. Anything else, he warned, was the beginning of the end for the First Amendment.

Justice Felix Frankfurter found this romantic but unworkable. Rights, he said, don’t live alone—they collide. Speech collides with security, liberty with equality, protest with order. Pretending those tensions don’t exist only hides the real judicial work of balancing. Better to admit it, weigh interests openly, and own the trade-offs.

Ironically, their decisions sometimes overlapped. Black, the absolutist, didn’t think symbolic protest—like flag burning—was “speech” at all. Frankfurter, the balancer, sometimes sided with dissenters. Their divide was less about results than about philosophy: whether to treat the First Amendment as a fixed rule or a principle that must be reinterpreted with every conflict.

Categorization vs. Balancing

Even after rejecting pure absolutism, the Court had to decide how to protect speech in practice. Two methods emerged: categorization and balancing.

Categorization draws bright lines. Certain speech types—like obscenity, incitement, or fighting words—fall outside First Amendment protection altogether. Once speech lands in one of these “unprotected” categories, the government wins automatically.

The advantage is clarity. Everyone knows where they stand. Police, teachers, and citizens get predictable rules. And, paradoxically, by excluding “low-value” speech, the Court can focus its strongest protection on political expression, protest, and dissent.

Balancing, on the other hand, keeps every case alive. Instead of pre-labeling speech, courts weigh the competing interests each time: How strong is the government’s reason? How serious is the harm? Could it be prevented another way?

Balancing allows nuance and context—it treats a campus protest differently from a bar fight—but at the cost of certainty. Judges get flexibility; citizens get guesswork.

In reality, the two often converge. Strict scrutiny sounds like balancing (“compelling interest,” “least restrictive means”) but almost always results in the same answer: speech wins. Meanwhile, when the Court declares something like “true threats” or “defamation” categorically unprotected, it’s just old balancing turned into a rule. As one scholar quipped, “categories are balancing in disguise.”

Parallels to Justice Stevens’ Equal Protection Approach

This debate (rules versus flexibility) doesn’t just shape the First Amendment. It echoes across constitutional law.

Justice John Paul Stevens made a similar argument in equal protection cases. He disliked the Court’s rigid tiered system—rational basis, intermediate scrutiny, strict scrutiny—and thought it oversimplified how equality actually works.

Like critics of First Amendment categorization, Stevens believed rigid boxes can hide more than they reveal. Forcing every case into a tier, like forcing every speech claim into a category, risks mechanical judging that misses nuance.

He proposed a contextual fairness inquiry instead: look at the government’s goal, the classification used, and the real-world impact on the affected group. That’s basically balancing under another name; an effort to make constitutional judging more honest and responsive.

Defenders of categorization in both areas push back for the same reason: predictability. Without clear rules, they argue, judges have too much discretion, and no one knows what’s constitutional until the opinion comes out. Balancing sounds fair, but it can turn the law into a moving target.

Stevens had a reply. The tiers of scrutiny, he said, aren’t really neutral either. They embed old value judgments, just like First Amendment categories do. What counts as a “suspect class” or a “low-value” speech type reflects the moral priorities of a given era. Instead of pretending otherwise, courts should admit they’re making normative choices and do it transparently.

In both contexts, the risk is the same: when rules harden into ritual, they start reflecting the blind spots of the past. Balancing—if done carefully—keeps the law alive to new understandings of fairness and freedom.

When we study the First Amendment, it’s easy to ask what kinds of speech are protected. But the deeper question is why speech is protected in the first place.

Over time, scholars and judges have offered four main answers. Each one captures something important about what free speech does for individuals and for democracy—and each one leaves something out.

1. Truth: The Marketplace of Ideas

The oldest theory is that free speech helps us find truth. The idea goes back to thinkers like John Milton and John Stuart Mill, who believed that when ideas clash openly, truth eventually wins out. Mill said that silencing an opinion doesn’t just harm the speaker—it robs everyone of a chance to test their own beliefs and correct mistakes.

American courts adopted this logic in what Justice Holmes famously called the “marketplace of ideas.” Just as competition in markets helps us discover fair prices, open debate helps us discover truth. Justice Brandeis built on this idea, calling free thought and discussion “indispensable to the discovery of political truth.”

Imagine a classroom discussion about affirmative action or gender discrimination. Students argue about what equality really means: some defend colorblindness, others argue for context-sensitive remedies, some raise questions about stigma, and others emphasize structural bias. The professor doesn’t announce a winner. The point is the process: students test each other’s reasoning, see where assumptions clash, and refine their understanding through debate. Truth, in this sense, isn’t a fixed answer; it’s something we approach by engaging all the arguments, even uncomfortable ones.

Of course, the “marketplace” doesn’t always work perfectly. Algorithms, ad money, and misinformation can distort what people see and hear. A modern version of this theory focuses on building better conditions for truth-seeking: diverse media sources, transparency about funding and authorship, education in critical thinking, and tools to verify information. The idea is to make sure truth has a fair shot.

2. Self-Government: Speech as the Engine of Democracy

The second theory sees free speech as essential to democracy itself. We protect expression because citizens can’t make informed decisions without hearing, debating, and criticizing ideas. As Justice Brandeis put it, public debate must be “uninhibited, robust, and wide-open.”

Scholar Alexander Meiklejohn used a town meeting to explain the idea. In a democratic town, every citizen gets to speak before a vote. Free speech is part of the process of collective self-rule.

Think about a student government election on campus. Two candidates have large followings and lots of money; they buy social media ads, print glossy posters, and dominate everyone’s feeds. A third candidate, running on a platform for low-income or international students, can barely afford flyers. Technically, everyone is “free” to speak, but in practice, the conversation is one-sided.

Modern scholars Cass Sunstein and Owen Fiss would say that democracy facing this problem needs structural fixes to make discussion fairer. Disclosure rules could show who’s funding the campaigns, so voters know whose interests are behind the messages. Public-interest media—like a campus newspaper offering equal space to all candidates—could ensure everyone gets heard. Spending limits or matching funds could stop wealthy candidates from drowning out smaller voices. None of these reforms tell anyone what to think; they simply make sure everyone has a meaningful chance to participate.

(Importantly, Sunstein and Fiss stay within a viewpoint-neutral, procedural frame: they want to improve the infrastructure of democracy, not pick sides in ideological debates. That distinguishes them from the power-critical theorists you’ll read next—think MacKinnon or Marcuse—who go further by questioning whether neutrality itself can ever be fair when power is uneven.)

Robert Post pushes back—not because he disagrees that democracy needs open discussion, but because he thinks Sunstein and Fiss’s solutions risk undermining the very independence they hope to protect. If the government starts deciding what counts as “good,” “balanced,” or “responsible” discourse, it begins to act as a referee in public debate. A rule meant to “improve” democratic conversation can quietly turn into a rule that shapes it.

Post’s concern is subtle but important: the same state that creates fairer conditions for speech also gains the power to define them. What one era calls “responsible regulation” might be seen by the next as bias or censorship. Once officials start engineering the conversation (even with neutral intentions), they inevitably influence what counts as credible or worthy of attention.

In his view, democracy’s legitimacy depends on citizens themselves, not institutions, sorting truth from error. The process must remain messy, loud, and sometimes irrational because the right to self-government includes the right to get it wrong. Post’s warning to Sunstein and Fiss is that if we overdesign the forum, we risk trading the people’s rough, authentic judgment for a managed, curated version of democracy.

In short, Sunstein and Fiss want to strengthen the conditions for democratic speech so everyone can participate meaningfully; Post wants to preserve the freedom of that speech, even when it’s chaotic. All three agree that self-government depends on public debate—they just differ on how much structure democracy can bear before it stops being truly free.

3. Autonomy: Speech as Self-Expression

The third theory focuses on the speaker rather than the system. It says speech is protected because it’s part of what it means to be a free person. Speaking, writing, creating, and even joking are ways we express identity and make sense of who we are in the world.

For scholars like C. Edwin Baker and Martin Redish, expression is about self-realization. They argue that when the government tells you what you can or can’t say, it’s not just regulating communication—it’s regulating you. To censor someone’s voice is to narrow the space in which they can think, imagine, or grow.

Think of a law student starting a podcast about life in law school. Some episodes tackle serious issues like student debt, access to justice, or diversity in the profession. Others are funny or deeply personal, talking about burnout, doubt, or identity. None of this is “political” in the traditional sense, but all of it is expressive. It’s how someone makes meaning out of experience and claims ownership of their own story.

Autonomy theory helps explain why the First Amendment protects art, literature, music, comedy, and satire—forms of speech that shape how people see themselves and one another, even when they don’t touch policy. It also helps explain why dissenting and creative voices are so valuable. Someone who writes a provocative novel, creates political art, or challenges social norms is exercising the freedom to define their own values and vision of life. That act of self-definition strengthens society, because it keeps culture plural and open.

Critics like Robert Bork argue that “self-fulfillment” is too vague to guide courts because many things fulfill us that the Constitution doesn’t protect. But defenders respond that speech is unique because it’s how humans reason, imagine, and connect. Protecting speech protects the process of becoming fully human, i.e., the ability to think freely, speak honestly, and be known on one’s own terms.

4. Distrust of Government: The Negative Theory

The last theory is built on skepticism. It protects speech not because all speech is noble, but because government cannot be trusted to decide which speech is too dangerous. History shows that officials often use censorship to protect themselves, punish critics, or enforce conformity.

Imagine a group of students protesting a new state law. They criticize the governor on social media and hold signs on campus. The state calls it “disruptive” or “unpatriotic.” The First Amendment protects them, not because they’re necessarily right, but because the government shouldn’t decide what loyalty or truth looks like.

This “negative theory” finds its moral core in West Virginia v. Barnette, which declared that “no official, high or petty, can prescribe what shall be orthodox.” Free speech, on this view, is a safeguard against the state’s tendency to demand agreement.

Its strength is clarity: if power can’t be trusted, limit it. But it leaves open the question of private power, or the ways corporations and platforms now shape what people see or say. A modern update adds non-coercive checks: transparency about moderation, appeal rights for users, competition laws that prevent any single company from controlling the conversation. These reforms try to reduce distortion without handing more control to the state.

Why These Theories Still Matter

Each theory captures one side of what the First Amendment is trying to do:

• Truth: Protect the process of testing ideas.

• Self-government: Keep debate open so citizens can rule themselves.

• Autonomy: Honor the role of speech in shaping identity and conscience.

• Distrust: Limit power, especially the power to decide who gets to speak.

Together, they show that free speech isn’t just about words but about how a society learns, governs, and grows. The challenge for modern lawyers and citizens is to carry these ideas into a world of digital platforms, polarized media, and attention economies without losing the humility that the First Amendment was built on: the belief that truth and freedom must be discovered through open, sometimes uncomfortable, conversation.

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When we talk about gender discrimination, we usually think about schools, jobs, or public benefits. But in 1994, the Supreme Court confronted a different question:

Can the government pick a jury based on whether you're a man or a woman?

The case was called J.E.B. v. Alabama, and on the surface, it looked like a routine child support dispute. The state of Alabama was pursuing a paternity claim on behalf of a woman against a man. But during jury selection, something unusual happened: the state used almost all its peremptory strikes to remove male jurors.

The result? An all-female jury.
The defense objected: this wasn’t random—it was discrimination.

The legal question: Does striking jurors based solely on gender violate the Equal Protection Clause?

The Court said yes. And in doing so, it extended a powerful principle: gender, like race, cannot be used as a shortcut for judging competence or bias.

Jury Selection and the Equal Protection Clause

Until this case, the Supreme Court had already ruled in Batson v. Kentucky (1986) that you can’t strike jurors based on race. That would violate the Equal Protection rights of both the defendant and the excluded juror.

J.E.B. asked whether the same logic applied to sex.

Justice Blackmun, writing for the majority, said it did:

“Gender, like race, is an unconstitutional proxy for juror competence and impartiality.”

In other words, it doesn’t matter if you think men will be less sympathetic in a child support case. You can’t treat them differently because of that assumption. Stereotypes aren’t a valid basis for exclusion.

The Real Stakes: Trust in the System

This wasn’t just about one man’s right to a mixed-gender jury. It was about public trust in the judicial process.

Blackmun put it bluntly: Letting lawyers strike jurors based on gender “undermines public confidence” and “the integrity of our judicial system is jeopardized.” Jury service is a core civic duty, a sign of full citizenship. Excluding people because of their sex sends the message that they can’t be trusted to think fairly, reason clearly, or judge impartially.

And if courts are places where bias is baked in from the very start through how juries are selected, then how can we ask the public to trust their decisions?

The Dissent: What About Discretion?

Justice Scalia dissented, joined by Chief Justice Rehnquist and Justice Kennedy. His argument was practical: peremptory strikes are supposed to be subjective. That’s the whole point. They let lawyers use instinct and strategy—not rigid rules—to shape a jury.

If we start policing those decisions too closely, Scalia warned, we might as well eliminate peremptory strikes altogether. And besides, he added, there’s no constitutional right to serve on a jury. The defendant deserves a fair trial, but that doesn’t mean juries have to reflect every demographic perfectly.

It was a sharp disagreement—between a vision of equality that protects against even subtle bias, and one that prioritizes efficiency and tradition.

Why This Case Mattered

J.E.B. was the first time the Court applied heightened scrutiny inside the courtroom. It showed that even traditionally “discretionary” spaces weren’t exempt from equal protection principles.

It also reinforced a key message from earlier gender cases: you can’t justify discrimination with generalizations. Not about who’s nurturing. Not about who’s sympathetic. Not even in the name of courtroom strategy.

And it pushed the Court’s gender equality jurisprudence one step further. The standard used here—“exceedingly persuasive justification”—wasn’t limited to school admissions or military programs. It now applied in real-time decisions, with real consequences, in the justice system itself.

Why It Still Resonates

We live in a moment where questions about bias—implicit, structural, institutional—are front and center. J.E.B. reminds us that the small, behind-the-scenes decisions can reflect and reinforce big, harmful assumptions.

If we’re serious about equality under the law, it can’t stop at written rules. It has to reach the places where discretion is exercised. Because discretion without scrutiny is often where bias hides.

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In the mid-1990s, one of the most elite public colleges in the country didn’t admit women.

The Virginia Military Institute (VMI) was a prestigious, state-funded school that prided itself on rigorous military-style education, discipline, and tradition. Its students—known as cadets—endured grueling physical training and a strict code of honor. And for over 150 years, all of them had been men.

When a woman applied, the state didn’t let her in. Instead, Virginia created a separate program for women at a private liberal arts school nearby. It offered leadership training, but none of the rigor, resources, or reputation that VMI had.

The question before the Court in United States v. Virginia (1996) was this:
Can a public institution offer men one kind of education and send women somewhere else entirely—and call it “equal”?

Justice Ruth Bader Ginsburg, writing for the majority, said no.

But she didn’t just say it.
She redefined how the Court would talk about sex equality going forward.

The Standard: Sharpened and Elevated

Technically, the Court still used intermediate scrutiny, the same standard from Craig v. Boren. But Ginsburg gave it teeth.

She declared that:

“Parties who seek to defend gender-based government action must demonstrate an ‘exceedingly persuasive justification’ for that action.”

That’s not just rhetorical flair. It’s a signal.

Ginsburg insisted that states must offer real reasons, not outdated assumptions, for excluding people based on sex. The idea that women might not want the VMI experience—or that it was too tough for them—wasn’t persuasive. Even if most women weren’t interested, that didn’t justify excluding all women. The Constitution protects individuals, not averages.

The alternative program—VWIL—was a pale substitute. It lacked VMI’s resources, its alumni network, its status. Ginsburg made clear: separate is not equal, especially when the separation is built on generalizations about what women are like, or what they’re supposedly not suited for.

Why This Case Was Different

Unlike earlier gender cases, VMI wasn’t about a quirky beer law or nursing school admissions. It was about institutional legitimacy: who gets access to the full benefits of citizenship, education, and leadership.

Ginsburg reframed the issue:
This wasn’t about whether women belonged in a military academy. It was about whether the state could close the door before they even tried.

She wrote:

“Generalizations about ‘the way women are’ ... no longer justify denying opportunity to women whose talent and capacity place them outside the average description.”

That line captures the heart of her vision: Equality means letting people define themselves, not be defined by cultural defaults.

Reactions from the Court

Chief Justice Rehnquist agreed with the result but tried to keep things grounded. He said the real issue was that VWIL just wasn’t equal to VMI—no need to amplify the scrutiny test. He treated Ginsburg’s “exceedingly persuasive” language as just another way of describing intermediate scrutiny.

Justice Scalia, alone in dissent, saw the decision differently. He accused the majority of rewriting the Constitution. To him, nothing in the Constitution prohibited single-sex education. He warned that the ruling threatened tradition and would undermine legitimate differences between the sexes.

“This is not the interpretation of a Constitution, but the creation of one.”

Scalia’s dissent is memorable—and revealing. He viewed the Court’s ruling as an ideological move, not a legal one. Ginsburg, by contrast, saw it as the inevitable result of constitutional principles catching up with reality.

Why It Mattered

Virginia is the high-water mark of the Court’s gender equality jurisprudence. It didn’t quite adopt strict scrutiny, the standard used for race. But it moved intermediate scrutiny into a new phase, a type of “intermediate-plus.”

Ginsburg’s opinion forced governments to do more than gesture at tradition or point to averages. They had to prove, with evidence, that sex-based policies were actually necessary and not just convenient.

And they couldn’t rely on “separate but equal” logic anymore. The Constitution demands more than equal access in theory. It requires equal opportunity in practice.

Why It Still Resonates

This case wasn’t just about VMI. It was about opening doors that had been closed for generations: military careers, leadership pipelines, elite education.

Today, as debates rage over gender roles, trans inclusion, and single-sex spaces, the principles from VMI still matter. Ginsburg didn’t argue that everyone is the same. She argued that people shouldn’t be locked out based on who others assume they are.

That’s equality not just as a legal doctrine but as a design for a fairer society.

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In 1979, a man named Joe Hogan applied to nursing school.

He was already a licensed nurse in Mississippi. He wanted to earn a bachelor’s degree in nursing from the state’s top public program—Mississippi University for Women. There was just one problem.

Despite being fully qualified, he was rejected.
Because he was a man.

The school’s policy was clear: it only admitted women to its undergraduate nursing program. That rule had been in place for decades. The state said it was trying to advance women’s opportunities in fields where they’d historically been excluded.

But Hogan wasn’t trying to take something away from women. He just wanted the same education they had access to.

So, he sued. And Mississippi University for Women v. Hogan (1982) became a major milestone in the Court’s evolving understanding of gender equality.

The Court Steps In

In a 5–4 decision, the Supreme Court ruled in Hogan’s favor. The nursing school’s policy violated the Equal Protection Clause of the Fourteenth Amendment.

What’s especially striking is who wrote the majority opinion: Justice Sandra Day O’Connor, the first woman ever appointed to the U.S. Supreme Court. A woman who had fought her own battles against gender bias, including being passed over for jobs despite graduating near the top of her Stanford Law School class.

O’Connor didn’t pull punches.

She reminded the Court that sex-based classifications must meet intermediate scrutiny, the test created in Craig v. Boren just six years earlier. That means the state must show:

1. An important government objective, and

2. That the sex-based policy is substantially related to achieving that objective.

Mississippi said the nursing school’s women-only rule helped correct historical discrimination against women. But O’Connor saw through that.

“MUW’s policy of excluding males from admission to the School of Nursing tends to perpetuate the stereotyped view of nursing as an exclusively woman’s job.”

In other words, Mississippi wasn’t correcting discrimination. It was reinforcing the very gender roles the Constitution is supposed to challenge.

Why the Case Mattered

This was one of the first times the Court said, clearly and unequivocally: laws that “help” women can still be discriminatory. Especially when they’re built on outdated assumptions about who should do what kind of work.

The state argued that it was promoting women’s opportunities in a historically female field. But the Court responded: gender-based exclusion—even if well-intentioned—isn’t justified if it closes doors based on assumptions about roles and abilities.

Joe Hogan wasn’t trying to take over the nursing field. He just wanted to go to school. But the law told him that, as a man, he didn’t belong in a caregiving profession. That message was harmful not just to Hogan, but to any person whose path didn’t line up with society’s gendered expectations.

The Bigger Picture

Hogan built on Craig in two important ways:

1. It confirmed that intermediate scrutiny was here to stay. The Court didn’t just use it—it clarified how seriously it needed to be applied. A vague nod to tradition or public policy wasn’t enough.

2. It showed that gender discrimination affects everyone. Not just women. Not just in obviously unequal scenarios. But in any context where laws rest on assumptions about how men and women “should” behave.

And perhaps most powerfully, it was the first woman Justice on the Court striking down a sex-based rule that discriminated against a man. O’Connor’s opinion sent a clear message: gender equality means no one gets boxed in by stereotype.

Why It Still Resonates

Think about how often we hear phrases like “women are natural caregivers” or “men aren’t nurturing.” Those ideas still shape laws, workplace policies, and cultural expectations today.

But Hogan reminds us: just because something sounds pro-woman doesn’t mean it’s promoting equality. If a rule denies people opportunities based on assumptions about gender roles, it’s not empowering—it’s limiting.

And that’s what the Constitution protects against.

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In 1972, a teenage boy in Oklahoma wanted to buy a beer—and ended up changing constitutional law.

The beer in question wasn’t even strong. Oklahoma allowed 18-year-old women to buy “near beer”—3.2% alcohol by volume. But young men had to wait until they turned 21. Curtis Craig was 18 and thought that was unfair. So he sued the state, arguing that the law violated the Equal Protection Clause of the Fourteenth Amendment.

At the time, that was a long shot.

For decades, the Supreme Court had treated laws that distinguished between men and women as no big deal. If a law seemed “reasonable,” that was usually enough. States could say women were too delicate to work long hours, or that men didn’t belong in caregiving professions. Courts mostly shrugged. That deferential standard (rational basis review) meant lawmakers didn’t need much justification at all.

But by the 1970s, things were changing.

The feminist movement was gaining strength. Title IX had just been passed, banning sex discrimination in education. More women were entering the workforce. And the Equal Rights Amendment had passed Congress, even though it hadn’t yet been ratified by the states. The country was rethinking old assumptions about gender, and so was the Court.

Craig v. Boren (1976) became the case that captured that shift.

What the Court Decided

In a 7–2 decision, the Supreme Court struck down Oklahoma’s beer law. But the big news wasn’t just the result—it was how the Court got there.

Justice Brennan, writing for the plurality, announced a brand-new standard of review for laws that classify based on sex: intermediate scrutiny.

Here’s what that means in plain English:

“Classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.”

Not just some reason. Not just convenience. The government had to show a solid reason for treating men and women differently, and the law had to actually fit that goal.

Oklahoma had argued that the law helped promote traffic safety because young men were more likely to drink and drive. But Brennan looked closely at the evidence. The statistics showed only slight differences in alcohol-related arrests between men and women. That wasn’t enough. The Court said the law relied too heavily on crude generalizations, like the idea that all young men are reckless and all young women are responsible.

The Equal Protection Clause, Brennan wrote, doesn’t let states use gender as a blunt instrument. Individual rights require more precision.

The Other Opinions

Justice Powell agreed with the outcome but thought the Court had gone too far in announcing a formal new test. He preferred a slower, case-by-case evolution. His worry: if courts create rigid rules too quickly, they risk boxing in legislatures and missing the nuances of future cases.

Justice Stevens had a different take altogether. He didn’t focus much on the gender issue. For him, the Constitution is about treating people fairly, regardless of whether the law draws lines based on race, gender, age, or anything else. Labels matter less than fairness.

Justice Rehnquist, in dissent, didn’t buy any of it. He said the state had a rational basis—public safety—and that should have been enough. He criticized the majority for creating a new legal test out of thin air, warning that it gave courts too much power to override democratic choices.

Why It Mattered

Craig was the first time the Supreme Court struck down a law for discriminating against men. That itself was significant. It showed that gender stereotypes cut both ways, and that equal protection wasn’t just about helping women.

But more importantly, it marked a turning point in constitutional law. The Court didn’t just say this law was bad. It changed the standard going forward. From this case on, laws that treat people differently based on gender would face a harder test. Not the hardest (strict scrutiny, used for race), but still serious. The government couldn’t just wave at tradition or trot out a few stats. It had to show that the distinction really mattered and that the law was doing what it claimed to do.

Intermediate scrutiny became the new normal for sex discrimination cases. It gave courts a tool to demand more from lawmakers without striking down every gender-based law on sight.

Why a Teenager with a Beer Mattered

Craig didn’t come out of nowhere. It was the product of years of movement lawyering, culture shifts, and evolving judicial attitudes. But it was also, at its heart, a reminder that constitutional change often begins in small, specific moments. A beer law. A high school student. A question of fairness.

It also shows something profound: that gender equality isn’t just about women’s rights—it’s about everyone’s right to be treated as an individual, not a stereotype.

In the early 1970s, gender equality was suddenly in the air. Betty Friedan had cracked open the conversation with The Feminine Mystique. Congress had banned employment discrimination based on sex in Title VII of the Civil Rights Act (a late-night joke amendment that stuck), and President Nixon had signed an order extending affirmative action to women in federal contracting. The Equal Rights Amendment was flying through state legislatures.

But there was a gap. For nearly two hundred years, courts had waved gender discrimination through with the lightest touch: rational basis review. As long as lawmakers could point to any reason—“protecting women,” “promoting family stability”—the law stood. Women could be barred from certain jobs, excused from jury service “for their own good,” and treated as dependents while men were breadwinners. Judges nodded and said, “seems reasonable.”

Ruth Bader Ginsburg wanted to change that. But she knew that charging into the Supreme Court waving a feminist banner could backfire. She needed the right case and the right moment.

Reed v. Reed (1971): A Case Even the Court Couldn’t Ignore

She found it in Idaho, where Sally Reed, a grieving mother, just wanted to handle her late son’s estate. But the law denied her the chance. It didn’t matter who was better qualified; it simply gave preference to men.

This was strategic gold. No culture-war baggage. No abortion. No workplace quotas. Just an obviously arbitrary rule that insulted common sense and basic fairness. Ginsburg, then at the ACLU, crafted a brief that avoided ideological fireworks. She didn’t demand the Court treat women like racial minorities. She didn’t even mention strict scrutiny. Instead, she argued in familiar constitutional terms: fairness, equal protection, and the danger of arbitrary state action.

The Court went for it—unanimously. Chief Justice Warren Burger wrote:

“To give a mandatory preference to members of either sex over members of the other … is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause.”

On paper, the Court said it was still applying rational basis review. But in practice, it poked holes in the state’s justification (“administrative convenience”) instead of rubber-stamping it. This was something new: a willingness to look harder at gender classifications, even without officially changing the standard of review.

Reed didn’t just win Sally Reed her son’s estate. It marked the first time the Court struck down a law for sex discrimination. And it showed how powerful careful strategy could be: start with sympathetic facts, avoid polarizing arguments, and win over even an all-male Court.

Frontiero v. Richardson (1973): Swinging for the Fences

Two years later, the next big gender case arrived: Frontiero v. Richardson. Sharron Frontiero, a U.S. Air Force lieutenant, challenged a policy that automatically gave male service members housing and medical benefits for their wives but forced female service members to prove their husbands were financially dependent.

This time, the argument was bold: treat sex, like race, as a “suspect classification” requiring strict scrutiny. Justice Brennan’s plurality opinion embraced the logic of Footnote Four in Carolene Products, which says courts should be especially vigilant when laws burden politically powerless groups. Women, Brennan argued, had been historically excluded from political and economic power, even though they technically made up half the population.

But the Court fractured. Justice Powell (joined by Chief Justice Burger and Justice Blackmun) balked, saying, essentially: why leap ahead while the Equal Rights Amendment is still being debated in the states? Powell’s concurrence sent a clear signal: the Court was willing to strike down this particular policy, but not ready to revolutionize the constitutional standard.

The result: Frontiero struck the policy but left the big doctrinal question unresolved.

Why the Split?

Part of it was timing. In 1971, Reed’s facts were so stark and the ask so modest that the justices could say “yes” without reshaping constitutional law. By 1973, women’s equality was already on the national political stage, complete with the ERA passing state legislatures and Phyllis Schlafly mobilizing opposition. There was a sense that gender equality was working its way through the political process, so some justices hesitated to let courts jump ahead.

It was also about strategy. Ginsburg’s Reed brief stayed in safe, incremental territory. Frontiero’s argument reached for the doctrinal brass ring: strict scrutiny for all gender cases. That move exposed the Court’s limits: it wasn’t ready to say “sex = race” under the Constitution, at least not yet.

The Middle Ground: Craig v. Boren

A few years later, the Court landed in the middle with Craig v. Boren (1976), adopting intermediate scrutiny: gender classifications must serve “important governmental objectives” and be “substantially related” to achieving them. That standard reflected Reed’s skepticism of arbitrary rules without fully embracing Frontiero’s strict scrutiny.

Why It Still Matters

These cases are a master class in litigation strategy. Reed shows the value of choosing your first case carefully: picking a fight no one can defend and framing it in a way the Court is already primed to accept. Frontiero shows the limits of pushing too far, too fast—even with sympathetic facts.

And it’s a lesson that still resonates. Whether it’s gender equality, LGBTQ rights, or something else, movements often face the same question: Do you go incremental and build step by step, or swing for the fences and risk a fractured Court?

Ginsburg’s genius was knowing how to open the door without slamming it shut in the Court’s face.

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On a recent episode of The Daily, a New York Times reporter asked a provocative question: “Could one phone call make the Equal Rights Amendment the 28th Amendment?” Imagine it: a single phone call from the President to the National Archivist, certifying that—after nearly a century of struggle—gender equality is finally written into the Constitution.

But the real story begins not with a phone call, but with silence.

A Constitution Without Women

The original U.S. Constitution didn’t mention women—not once. The only proposed use of “she” was in a rejected clause about fugitive slaves. Even after the Civil War, when the 14th Amendment promised “equal protection of the laws,” the Supreme Court insisted that those guarantees didn’t prevent states from excluding women from professions, juries, or even the voting booth.

Other countries—France, Germany, South Africa, Canada, India—explicitly guarantee gender equality in their constitutions. We don’t. That silence shaped the early Supreme Court’s approach: gender roles weren’t something the law challenged; they were something it reinforced.

The Separate Spheres Era

Take Myra Bradwell, who in 1873 argued she had a constitutional right to practice law. The Court rejected her, and Justice Joseph Bradley famously wrote that a woman’s “paramount destiny and mission” was to be a wife and mother. Or Virginia Minor, who in 1875 argued that women had a constitutional right to vote. The Court said no—women could be citizens without being voters.

These decisions didn’t just reflect the social norms of their time; they cemented them in constitutional law.

The 19th Amendment: A Key, But Not a Remodel

It wasn’t until 1920, with the 19th Amendment, that women won the right to vote. But the 19th was narrow. It opened one door but left the rest of the house unchanged: women could still be barred from juries, from professions, and from equal treatment in law.

The ERA That Wasn’t—And Might Still Be

That’s why suffragist Alice Paul proposed the Equal Rights Amendment (ERA) in 1923:

“Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”

Congress finally approved the ERA in 1972, and within a year, 22 states ratified it. Eventually, the number reached 35—but three short of the 38 needed by the 1982 deadline. Opposition led by activist Phyllis Schlafly warned the ERA would destroy traditional gender roles, eliminate protections like alimony, and force women into the draft.

For decades, that seemed like the end of the story. Then, in a twist, Nevada (2017), Illinois (2018), and Virginia (2020)ratified the ERA, bringing the total to 38. Supporters argue the deadline doesn’t matter because the Constitution doesn’t explicitly authorize Congress to impose one.

Which brings us back to that podcast question: Could one phone call from the President to the Archivist certify the ERA as the 28th Amendment?

What Happens to the ERA Under President Trump?

The debate over the ERA was already politically charged when President Biden hesitated to certify it. Now, with President Trump back in power, the stakes have shifted again.

Trump has not publicly championed the ERA, and his administration’s prior legal stance leaned heavily on deadlines and originalist arguments. The Department of Justice under Trump previously issued an opinion saying late ratifications—like those from Nevada, Illinois, and Virginia—don’t count because Congress’s 1982 deadline expired decades ago. That opinion still stands and could easily be reaffirmed or strengthened under his administration.

A Trump-appointed archivist is also unlikely to certify the ERA unilaterally. Even if the White House reversed course, opponents could challenge the move immediately in court, arguing that constitutional amendments must follow clear, timely procedures.

Politically, Trump has embraced themes of traditional gender roles and skepticism toward federal gender equity mandates, making it unlikely he would spend political capital to revive a century-old amendment.

Why It Still Matters

The ERA’s uncertain status underscores how unfinished America’s constitutional conversation about gender equality really is. Without an explicit guarantee, courts rely on intermediate scrutiny—a mid-level constitutional test developed in the 1970s—to evaluate gender discrimination. A fully certified ERA could reset the landscape, possibly requiring strict scrutiny for all gender-based laws and fundamentally altering how courts approach gender equality.

But for now, the Constitution still doesn’t say, in so many words, that men and women must be treated equally. Whether one phone call—or one election—will change that remains an open question.

On a warm June morning in 2023, college-bound seniors were scrolling through their phones when the push notifications started lighting up:

“Supreme Court ends affirmative action in college admissions.”

For some, it was validation, proof that admissions would now be “fair.” For others, it felt like a door slamming shut, a sudden shift in the ground they’d been walking on their entire lives.

It wasn’t always this way. Just seven years earlier, in Fisher v. University of Texas (2016), Justice Anthony Kennedy had written an opinion upholding a limited use of race in admissions. It was careful, qualified, even reluctant, but it still allowed schools to consider race as one factor among many. The message was clear: diversity mattered, but schools had to prove it mattered enough, and they had to use race sparingly.

The Writing on the Wall

That careful approval turned out to be temporary. The Court had changed in both its membership and its philosophy. By the time Students for Fair Admissions (SFFA) reached the Court, the question wasn’t whether Harvard and UNC’s programs were too broad or too deferential. The question was whether race-conscious admissions were constitutional at all.

Harvard and UNC defended their policies the same way schools had for decades: they didn’t award points for race, didn’t use quotas, and treated race as one factor in a holistic review. Admissions officers could consider how a student’s racial background shaped their perspective or experiences.

But SFFA told a different story, one focused on Asian American applicants. The group argued Harvard’s policies penalized them. UNC was accused of similar practices. What had once been a debate about fairness to white applicants had shifted into a claim about discrimination against another minority group.

The Court’s Ruling

Chief Justice John Roberts’s majority opinion was sweeping. He said these programs failed strict scrutiny.

• No Compelling Government Interest

  • The goal was too vague: “educational benefits of diversity” lacked clear metrics or an endpoint.

• Not Narrowly Tailored

  • The process stereotyped: considering race, even as one factor, risked treating people as representatives of racial groups instead of as individuals.

  • There was no sunset: two decades after Grutter, there was no plan to phase out race-conscious admissions.

Then came the signature line:

“Eliminating racial discrimination means eliminating all of it.”

The Constitution, he argued, protects individuals, not groups, so even well-intentioned racial classifications are impermissible.

With that, the Court effectively closed the constitutional door on race-conscious admissions.

The Voices in Dissent

Justice Sonia Sotomayor accused the majority of ignoring reality:

“The Court cements a superficial rule of colorblindness... that closes the door of opportunity.”

Justice Ketanji Brown Jackson went further, writing about two students in North Carolina with identical test scores—one from a wealthy, white suburb, one from a Black family who had faced generations of economic exclusion. Treating them as if they started from the same place, she said, was not equality but blindness to inequality itself.

What It Means Going Forward

The decision ended more than just Harvard’s and UNC’s programs. It ended a 45-year experiment that began in 1978 with Bakke, which allowed race-conscious admissions for the sake of diversity. From then until SFFA, the Court had balanced two visions of fairness: treating individuals equally versus addressing inequality rooted in history.

Now, that balance is gone. Universities are rewriting admissions policies, leaning heavily on essays about adversity or personal background, and recruiting more aggressively in underrepresented communities. But the legal landscape is transformed: any policy explicitly using race—even for inclusion—is under deep suspicion.

For students, the change is not abstract. It’s the difference between seeing their identity as part of what they bring to the table, and being told it cannot be considered at all.

Closing Reflection: What This Series Has Shown

Over these posts, we’ve traced affirmative action’s constitutional journey, from Bakke’s fractured compromise, to Grutter’s embrace of diversity as an educational good, to Fisher’s tightening scrutiny, and now to SFFA’s sweeping rejection of race-conscious admissions.

What emerges is a story about shifting visions of equality:

• One that sees fairness as treating everyone the same, regardless of history or circumstance.

• Another that sees fairness as sometimes requiring race-conscious action to correct systemic disadvantage.

These posts weren’t just about doctrine; they were about values: what we believe education is for, who it should serve, and how law mediates between competing ideas of justice.

That conversation isn’t over. Universities are already experimenting with new ways to build diverse classes. Lawmakers, students, and courts will continue to debate whether those efforts go too far—or not far enough.

Affirmative action as we knew it may be gone, but the deeper questions about opportunity, merit, and equality are very much alive.

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