Enough Is as Good as a Feast

Ipse Dixit, the podcast on legal scholarship, provides a valuable service to the legal community and particularly to the legal academy. The podcast’s hosts skillfully interview guests about their legal and law-related scholarship, helping those guests communicate their ideas clearly and concisely. In this review essay, I argue that Ipse Dixit has made a major contribution to legal scholarship by demonstrating in its interview episodes that law review articles are neither the only nor the best way of communicating scholarly ideas. This contribution should be considered “scholarship,” because one of the primary goals of scholarship is to communicate new ideas

Replacing Tinker

In this Article, I wish to question whether reaffirming the animating spirit of Tinker is the best way to protect student speech rights. In allowing schools to punish student speech that school officials reasonably believe could be substantially disruptive, Tinker founds students’ free expression rights on unstable ground. This is true for two reasons. First, the Tinker standard allows school officials to regulate student speech based on their own perceptions of what its impacts will be. While these perceptions must be reasonable, courts have shown extraordinary deference to educators’ claims that student speech could be substantially disruptive. Second, the substantial disruption standard allows speech to be restricted not because it is in some way unlawful, but rather because of what others’ reactions might be to it. As I discuss below, government regulations with either one of these defects would generally be found unconstitutional in a nonschool context, because they give government officials too much discretion to burden or proscribe unpopular speech—the very harm the First Amendment’s free speech guarantee is designed to guard against. For these reasons, I argue that Tinker’s substantial disruption standard ought to be replaced by something like the public forum doctrine, which tailors governments’ power to restrict speech in a given forum based on the forum’s traditional use and the government’s role in creating it and is highly skeptical of government discretion in determining what expression will be allowed in the forum. In my view, schools should be allowed to regulate student speech only when they create or control the forum in which it is expressed. Otherwise, they should be without the power to regulate student speech. Even within the forums that they control, I argue that schools’ ability to regulate student speech should be circumscribed

Enough Is as Good as a Feast

Ipse Dixit, the podcast on legal scholarship, provides a valuable service to the legal community and particularly to the legal academy. The podcast’s hosts skillfully interview guests about their legal and law-related scholarship, helping those guests communicate their ideas clearly and concisely. In this review essay, I argue that Ipse Dixit has made a major contribution to legal scholarship by demonstrating in its interview episodes that law review articles are neither the only nor the best way of communicating scholarly ideas. This contribution should be considered “scholarship,” because one of the primary goals of scholarship is to communicate new ideas

Governments “Erasing History” and the Importance of Free Speech

Nationwide protests against police brutality and structural racism have led to a renewed push for governments to take down or alter Confederate monuments and symbols. Advocates for these changes argue that they will make our public spaces more just and welcoming to all people. Not everyone agrees. Some defenders of the monuments and symbols accuse pro-removal protestors and the governments who acquiesce to their demands as conspiring to “erase history.” In this essay, I argue that those who oppose removing the monuments should come away from the controversy with an appreciation for the importance of free speech. On the other hand, supporters of removal should come away from the controversy with an appreciation for the importance of free speech