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July 2024

Vidal v. Elster, or, What Happens When the Supreme Court Lacks a Fundamental Theory of the First Amendment

By Jeff Hermes
The Court’s struggle to find a deciding principle stems directly from the siloing of First Amendment law into discrete doctrines – public forums, government benefits, and so on. The fact that this case did not neatly fit into these categories is what led Justice Thomas to abandon logic for history, Justice Kavanaugh to give up altogether, and Justices Barrett and Sotomayor to hunt for analogies.