Keith E. Whittington
@kewhittington.bsky.social
David Boies Professor of Law, Yale Law School. Founding Chair, Academic Freedom Alliance; Visiting Fellow, Hoover Institution. All opinions are mine alone.
Proposed revision of Texas A&M system policy 08.01 poses significant risks to academic freedom, back to early 20th century fights over presidents vetoing course materials that offend political sensibilities
November 10, 2025 at 2:26 PM
Proposed revision of Texas A&M system policy 08.01 poses significant risks to academic freedom, back to early 20th century fights over presidents vetoing course materials that offend political sensibilities
The next national faculty FedSoc annual conference will be electric, as the kids say these days
October 16, 2025 at 10:30 PM
The next national faculty FedSoc annual conference will be electric, as the kids say these days
New article now available
October 10, 2025 at 10:12 PM
New article now available
As predicted, the flag-burning EO is a nothing burger from a legal or policy perspective, but I’m sure it will help everyone with their small-dollar donors. But I would advise criminals to avoid desecrating American flags while they do their criming. 12/12
August 25, 2025 at 5:28 PM
As predicted, the flag-burning EO is a nothing burger from a legal or policy perspective, but I’m sure it will help everyone with their small-dollar donors. But I would advise criminals to avoid desecrating American flags while they do their criming. 12/12
Foreign nationals might have more to worry about, but again not because there’s now a new legal constraint but because burning flags will be a good way to prioritize your deportation on other grounds. 11/
August 25, 2025 at 5:28 PM
Foreign nationals might have more to worry about, but again not because there’s now a new legal constraint but because burning flags will be a good way to prioritize your deportation on other grounds. 11/
Let’s litigate to “clarify the scope of the First Amendment exceptions in this area”! Sure, good luck with that. And for those saying “But the Roberts Court!” The Roberts Court is extremely 1A friendly and even Alito has favorably cited the flag burning opinions. Loser. 10/
August 25, 2025 at 5:28 PM
Let’s litigate to “clarify the scope of the First Amendment exceptions in this area”! Sure, good luck with that. And for those saying “But the Roberts Court!” The Roberts Court is extremely 1A friendly and even Alito has favorably cited the flag burning opinions. Loser. 10/
Same with the referral to local officials for local crimes, but one can easily imagine some overreach in prosecutions that courts will predictably bat down. 8/
August 25, 2025 at 5:28 PM
Same with the referral to local officials for local crimes, but one can easily imagine some overreach in prosecutions that courts will predictably bat down. 8/
The actual directive to the AG here is festooned with legal limitations. Maybe this changes prosecutorial priorities, but that’s it. If you are going to beat someone up, you might not want to do it at the same time you desecrate the American flag. 7/
August 25, 2025 at 5:28 PM
The actual directive to the AG here is festooned with legal limitations. Maybe this changes prosecutorial priorities, but that’s it. If you are going to beat someone up, you might not want to do it at the same time you desecrate the American flag. 7/
Administration will prosecute lawless actions that also involve flag-burning? Ok, whatever. The prosecuting criminal behavior is doing all the work here. The flag add-on is boob bait. 6/
August 25, 2025 at 5:28 PM
Administration will prosecute lawless actions that also involve flag-burning? Ok, whatever. The prosecuting criminal behavior is doing all the work here. The flag add-on is boob bait. 6/
The EO wants to pretend that there are unanswered legal questions regarding flag burning that opens a door to greater enforcement action. This is a frequent Trump EO tactic, but it is a mirage in this case as in others. 5/
August 25, 2025 at 5:28 PM
The EO wants to pretend that there are unanswered legal questions regarding flag burning that opens a door to greater enforcement action. This is a frequent Trump EO tactic, but it is a mirage in this case as in others. 5/
This is unlikely to fly. Flag burning as a type of “fighting word” is a non-starter under existing precedent. Flag-burning adds nothing to actions that otherwise qualify as incitement & flag-burning in itself won’t meet that standard. 4/
August 25, 2025 at 5:28 PM
This is unlikely to fly. Flag burning as a type of “fighting word” is a non-starter under existing precedent. Flag-burning adds nothing to actions that otherwise qualify as incitement & flag-burning in itself won’t meet that standard. 4/
There is a pitch that some instances of flag burning might fall under existing 1st Amendment exceptions despite the Court’s ruling that flag burning as such is protected expression. 3/
August 25, 2025 at 5:28 PM
There is a pitch that some instances of flag burning might fall under existing 1st Amendment exceptions despite the Court’s ruling that flag burning as such is protected expression. 3/
Figured it was about time to try the much vaunted New Haven pizza, but guess I’ll have to try again later
August 23, 2025 at 9:12 PM
Figured it was about time to try the much vaunted New Haven pizza, but guess I’ll have to try again later
But did discuss the relevant principles
April 7, 2025 at 12:56 PM
But did discuss the relevant principles
Failed to anticipate hypothetical of launching a moronic trade war
April 7, 2025 at 12:56 PM
Failed to anticipate hypothetical of launching a moronic trade war
Insane, if true
March 20, 2025 at 3:55 PM
Insane, if true
From the piece:
March 20, 2025 at 12:32 PM
From the piece:
7th Circuit panel likewise holds that ordinary university teaching involves the kind of speech that triggers heightened 1st Amendment interest 6/
March 13, 2025 at 3:27 PM
7th Circuit panel likewise holds that ordinary university teaching involves the kind of speech that triggers heightened 1st Amendment interest 6/
Moreover, the 7th circuit panel says that this is a pretty easy question -- so easy that university officials violating prof's 1st Amendment rights in such situations do not get qualified immunity 4/
March 13, 2025 at 3:27 PM
Moreover, the 7th circuit panel says that this is a pretty easy question -- so easy that university officials violating prof's 1st Amendment rights in such situations do not get qualified immunity 4/
A critical question in his case is whether First Amendment rights apply for state university professors performing their job duties -- like giving exams to students. 7th circuit holds that that they do 3/
March 13, 2025 at 3:27 PM
A critical question in his case is whether First Amendment rights apply for state university professors performing their job duties -- like giving exams to students. 7th circuit holds that that they do 3/
I haven't even had my caffeine yet
March 4, 2025 at 1:36 PM
I haven't even had my caffeine yet
The Marshmallow test is what happens after the Gom Jabbar test has to go through the institutional review board
February 21, 2025 at 5:45 PM
The Marshmallow test is what happens after the Gom Jabbar test has to go through the institutional review board
Well, that's awkward
February 8, 2025 at 2:33 PM
Well, that's awkward
Senate confirmation these days
February 7, 2025 at 1:47 PM
Senate confirmation these days
We really are in the dumbest timeline
February 6, 2025 at 5:29 PM
We really are in the dumbest timeline