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Abstract

Governments often seek to restrict speech on the basis of its content, navigating the ever-complex terrain between constitutional freedoms and regulatory interests. While the United States judiciary has historically endeavored to balance competing constitutional questions and government interests when scrutinizing content-based speech regulations, recent trends signify a troubling shift. The judiciary has recently embraced what this Article refers to as free speech absolutism, whereby it sidesteps the longstanding, intricate process of balancing constitutional values and public interests, in favor of an unequivocal endorsement of speech rights. This simplified judicial strategy proceeds first with an acknowledgment of the paramount importance of free speech, then shuns any form of judicial scrutiny or balancing test, instead ruling categorically in favor of speechclaimants. Such a shift represents a departure from traditional First Amendment jurisprudence, effectively ignoring tests that weigh the right to free expression against other critical constitutional values, including equality, equal protection, and nondiscrimination.

This Article critically examines the choices by the judiciary, specifically the United States Supreme Court in 303 Creative v. Elenis, to adopt this free speech absolutist position. It documents the evolution of this trend, critiques its underpinnings, and proposes refinements that, if implemented, would help ensure the Court’s approach to content-based speech regulation is principled, sighted for valid government interests, and attuned to a necessary consideration of the broader spectrum of constitutional values. By doing so, it seeks to reinvigorate a more balanced and comprehensive judicial methodology that recognizes the multifaceted nature of constitutional rights and the importance of their equitable application.

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