Which First Amendment Decision Would You Overturn?

In his Brown v. Allen concurrence, Justice Robert Jackson famously said of the Supreme Court “We are not final because we are infallible, but we are infallible only because we are final.”  The Supreme Court inevitably makes mistakes and reaches the wrong result in some non-trivial number of cases.  Accordingly, for the past two years I have included the following question on the exam in my First Amendment constitutional law course:

As Justice Jackson observed, the Supreme Court does not necessarily arrive at the correct conclusion in every case, and even when the Supreme Court does reach the proper result, it may not always do so on the best grounds. Accordingly, please identify a Supreme Court decision covered in this course that you believe was in error, explain your reasons for believing it was wrongly decided, and either a) explain what you believe the Court should have done instead and the rule or interpretation it should have adopted or b) propose a constitutional amendment to correct the Court’s error.  Be sure to identify possible objections to your recommended outcome or proposed amendment and explain how you would address such concerns.  So, for example, it is important to consider how overturning one decision would or would not affect other cases and other parts of First Amendment doctrine.

As one might expect, many students write on highly controversial decisions, such as Citizens United, Lee v. Weisman, Locke v. Davey, or Holder v. Humanitarian Law Project. Interestingly enough, however, in each of the last two years more students have chosen to address Marsh v. Chambers than any other decision. The numbers aren’t large — 4 of 26 chose Marsh last year, 7 of 35 this year — but it’s interesting nonetheless.  One question I have is whether students write about Marsh because they find it particularly objectionable, or because it is easier to “fix” than other decisions.

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