William & Mary Bill of Rights Journal
Abstract
There is a lot to be said about the Supreme Court’s decision in 303 Creative LLC. In the wake of the decision there will be a range of commentaries like those presented in this Issue. I want to draw attention to a particular aspect of the opinion, part of a broader trend in the Court’s First Amendment jurisprudence, towards blunt, sweeping rules. By a blunt rule, I mean a simple, coarse one that lacks nuance or distinctions. Blunt rules, by their nature, tend to be sweeping: nuance, that is, distinguishing cases based on various factors, limits the scope of a decision. Jamal Greene argues that blunt rulings are part and parcel with the general approach to constitutional jurisprudence of treating rights as trumps. But I think there is more to it in this area of law than that. Sometimes a blunt, sweeping rule can be a good thing— simplicity has its virtues. A simple, categorical rule can be easier to understand and apply, clearer, and better engage with the public. At the end of the day, though, 303 Creative LLC does not fully deliver on those virtues.
This abstract has been taken from the author's introduction.
Repository Citation
Nicholas Almendares, Blunt Speech Rights, 32 Wm. & Mary Bill Rts. J. 919 (2024), https://scholarship.law.wm.edu/wmborj/vol32/iss4/3Included in
First Amendment Commons, Jurisprudence Commons, Supreme Court of the United States Commons
Comments
Part of a collection of essays stemming from the 2024 AALS Hot Topic Program on Judicial Rights and Legislative Equality: The Future of Public Accommodation and the Polycentric Constitution After 303 Creative v. Elenis.