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Supreme Court doctrine grants special protection against laws that “chill” protected speech, most prominently via the overbreadth doctrine. The overbreadth doctrine permits persons whose own speech is unprotected to challenge laws that infringe the protected speech of third parties. The Court has not generally applied overbreadth and the other speech-protective doctrines to other constitutional rights even though other rights could also be subject to a chilling effect. The case law simply assumes that the chilling effect only acts on the exercise of speech, and that this justifies treating speech differently from other rights.

We tested these assumptions with respect to abortion rights. By comparing abortion rates with state laws over a two-decade-plus period, we found a statistically significant correlation between laws forbidding late-term abortions and the reduction of not only late-term but also “near-late-term” abortions, i.e., abortions in the roughly one month before the period in which abortions are forbidden. That effect persists even after controlling for potentially confounding variables, such as the number of abortion providers and pro-life public opinion. Moreover, the effect is not limited to the year of enactment or associated with failed policy initiatives, suggesting that the impact is due to the law itself rather than associated publicity. These findings are consistent with, and strongly suggestive of, a chilling effect on abortion providers and/or women seeking abortions. This result undermines the implicit assumption that the chilling effect is unique to laws regulating speech and vindicates the general proposition that laws can chill the exercise of constitutional rights beyond their literal coverage.

Testing the Harm of Campaign Spending

In its landmark campaign finance decision Citizens United v. FEC, the Supreme Court found that favoritism or influence over elected officials gained by wealthy campaign contributors does not—in the absence of outright corruption—give rise to the sort of constitutional harm that would justify restrictions on campaign spending. The Court was also insistent that any perceptions of ingratiation would not undermine the electorate’s faith in democracy. This paper challenges the doc- trinal and empirical underpinnings of those assertions. We argue that a loss of faith by the electorate implicates a central constitutional value and is a sufficiently compelling interest to justify campaign finance regulation. We also demonstrate empirically that the Court should not have been so confident that the elecorate’s faith in democracy is unaffected either by the appearance of influence or access due to campaign spending or by independent expenditures.

The Supreme Court’s decision in Shaw v. Reno established an “analytically distinct” constitutional claim of racial gerrymandering for majority-minority districts drawn predominantly on the basis of race. The case was and continues to be controversial, because the precise nature of the injury caused by such districts has been a persistent source of debate. Shaw districts did not minimize a group’s representation, but rather they communicated an “expressive harm” due to signals they sent to the electorate and representatives that the jurisdiction relied too much on race in the construction of a district. Such districts, the Court argued, communicated racial stereotypes that individuals belonging to the same racial group were politically interchangeable, despite their many social and economic differences. This paper tests the “Shaw hypothesis” with recent survey data. We find no patterns in racial attitudes based on the shape and racial composition of a congressional district. We do, however, find substantial and expected gaps among racial groups concerning attitudes toward the practice of majority-minority districting, Section 5 of the Voting Rights Act, and job approval of the respondent’s representative.

“We must proceed with caution” remains a clarion call of marriage equality opponents. Courts have previously rejected this argument on two grounds: First, states cannot save an otherwise unconstitutional law by raising the specter of theoretical harms that may run rampant if the law were struck down. And second, such harms are inapplicable in the context of same-sex marriage bans because there is no harm caused by allowing same-sex couples to wed. A number of jurists, most notably Justices Alito and Thomas, nonetheless embrace the “proceed with caution” argument.

To that end, this Essay explains a third reason why the “proceed with caution” argument should fail when the Supreme Court takes up the issue of marriage equality this spring; specifically, a state should not be allowed to proceed with caution unless it explains how it plans on doing so. The states defending their same-sex marriage bans before the Court this spring—Kentucky, Michigan, Ohio, and Tennessee—have failed to identify how they plan to proceed with caution. They offer no plans, timetables, or rubrics by which they intend on analyzing the effects of same-sex marriage elsewhere, extrapolating those effects to their states, and taking action as warranted. As these states have presented no such evidence, the Court should reject the “proceed with caution” argument they advance.

Circuit court decisions in the cases of Qutb v. Strauss and Hutchins v. District of Columbia signal a change in judicial attitude towards associational challenges to teen curfews: If a curfew contains an exception for activities protected by the First Amendment, then it will not be struck down as unconstitutional for infringing on a teenager’s right to associate. At first blush, a First Amendment exception appears sufficiently protective of a teenager’s right to associate. But as Todd Kaminsky demonstrates in this Note, the exception may in fact not go far enough. Certain activities that fall outside the scope of the exception—most notably, public discussion-are necessary antecedents for activities within the scope of the exception, such as protest. By examining sociological accounts of Freedom Summer, the Velvet Revolution, and other similar movements, he establishes the link between public discussion and protest and brings into sharp relief the negative First Amendment consequences of curtailing public discussion. In addition, he explores how a curfew, even with an exception, may make it more difficult for expressive teen organizations to recruit new members, by reducing the time available for teens to socialize and develop informal social networks. As such, Kaminsky concludes, courts should give due regard to associational challenges and scrutinize carefully teen curfews, despite the inclusion of First Amendment exceptions. Otherwise, courts may inadvertently erode teenagers’ right to associate by choking off the conditions necessary for the vigorous exercise of that right.