19 Years Later, Article by Kagan Echoes at the Supreme Court

What is the best way for a scholar to influence the Supreme Court through a law review article? Join the court.

In 1996, a young professor named Elena Kagan published an article in The University of Chicago Law Review. It sketched a way to make sense of the Supreme Court’s approach to the First Amendment. Justice Kagan, in her 1996 article, identified the starting point for analyzing whether laws are constitutional. “The distinction between content-based and content-neutral regulations of speech,” she wrote, “serves as the keystone of First Amendment law.” But it is not always easy to tell whether a law is content-based. Since the government is seldom going to announce that it seeks to censor certain messages, the article says, courts must look at how the challenged law works “to flush out illicit motives and to invalidate actions infected with them.”