Document Type

Article

Publication Date

2024

Publication Citation

32 William & Mary Bill of Rights Journal 919 (2024)

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.

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