I am happy to announce the publication of my latest law review article, The Unfinished Masterpiece: Compulsion and the Evolving Jurisprudence Over Free Speech, 83 Md. L. Rev. 145 (2023) The work not only discusses the recent 303 Creative ruling of the Supreme Court, but an important case now pending before the Court for possible review, Porter v. Board of Trustees of North Carolina State University. The Porter decision was decided by the United States Court of Appeals for the Fourth Circuit and, in my view, represents a major threat to both free speech and academic freedom. Both cases are also discussed in my forthcoming book, The Indispensable Right.
The article is the outgrowth of remarks that I gave at Maryland Law School at a Supreme Court symposium. The Law Review asked me if I would be willing to convert my remarks into a law review article.
I would like to thank Editor in Chief Rosemary Ardman and the entire staff of the Maryland Law Review for organizing the symposium as well as providing such excellent insights throughout the editing process. The issuance of the 303 Creative opinion shortly before publication required a major rewrite and a new round of edits from the law review members, who took on the task with enthusiasm.
Here is the summary:
“This Article explores how free expression conflicts have been addressed under religious, associational, and free speech rationales. A proponent of a natural rights or autonomous view of free speech, the Article lays out how a new and promising approach coalesced in the recent decision of the Supreme Court in 303 Creative LLC v. Elenis. Indeed, the Article explains how the decision completed the work left undone in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission in 2018. However, it argues that this rationale remains an “unfinished masterpiece” due to the lack of a clear natural right or autonomous foundation for free speech. That vulnerability was vividly illustrated just a week after 303 Creative, when the Fourth Circuit rejected the free speech claims of a professor in Porter v. Board of Trustees of North Carolina State University. The Fourth Circuit not only continued a past rationale of speech-as-conduct, but adopted a narrow view of the function of the speech by the dissenting faculty member. The case shows that the Supreme Court must complete the work in 303 Creative by increasing the scope and depth of free speech protection. To that end, the Article argues that religious speech should be protected first and foremost as speech as opposed to a violation of the Religion Clauses. Moreover, it must be grounded in either a natural right or autonomous rationale rather than past functionalist rationales. Only then will the Court truly achieve a long-sought masterpiece of free speech.”
The article is now available on the website here.