First Amendment Pedagogy: Teaching New Challenges and Old Doctrine

Abstract

For most constitutional problems, legal doctrine presents several tracks for resolution. Perhaps the most compelling case for this proposition comes from First Amendment cases. First one discovers the splintered, filigree of concepts in free expression law itself. Is it content-based regulation? Secondary-effect regulation? Is a public forum involved? Fighting words? A true threat? The analytical possibilities seem to multiply. And then one must often consider a relationship between free expression and the religion clauses: the freedom of religion clause and the prohibition against government establishment of religion. Assistance for understanding this relationship comes from the concept of freedom of conscience—the notion of being able to embrace what one believes as true and moral. This notion links both freedom of expression and the two religion clauses. Yet understanding how to navigate the tangled legal doctrines pertaining to both the religion and freedom of expression silos of constitutional caselaw remains a more challenging story. What is this article about? It focuses on these two challenges: the challenge of choosing which thread of case law is best of analyzing freedom of expression issues and the challenge of navigating the relationship among freedom of expression, freedom of religion and the prohibition against government establishment of religion. The article is written for (1) law professors trying to figure out how to guide students; (2) students trying to orient themselves in the First Amendment maze; and (3) practitioners trying to choose the appropriate strategy for conquering a legal problem. The article is derived in large part from a monograph on the First Amendment, published by Wolters Kluwer, LAURA E. LITTLE, FIRST AMENDMENT: EXAMPLES AND EXPLANATIONS (2021).