When do the First Amendment’s Free Speech and Free Exercise Clauses require exceptions to generally valid laws? Recently, the Supreme Court has upheld a number of such exceptions, which excuse some speakers and religiously motivated actors from legal duties that apply to others, including in prominent cases under antidiscrimination statutes and emergency pandemic regulations. By contrast, other landmark cases–such as United States v. O’Brien and Employment Division v. Smith—insist that First Amendment exceptions should be rare.

In analyzing the fraught and confusing issues that surround First Amendment exceptions, this Article makes four main contributions. First, it conceptualizes claims to First Amendment exceptions as as-applied challenges, which the Supreme Court purports to welcome in other contexts, and elucidates the role of “severability” principles in making as-applied challenges possible. Insofar as as-applied challenges are unavailable, the Article argues, applicable doctrine necessarily relies on facial challenges to protect First Amendment rights. Second, the Article conducts a doctrinal survey of judicially mandated exceptions under both the Free Speech and Free Exercise Clauses and highlights the diverse variety of tests that determine when claims to exceptions can succeed. The survey confirms that First Amendment exceptions are indeed exceptional, though not anomalous. It additionally establishes, however, that facial challenges are the more common mechanism for protecting First Amendment rights–a conclusion contrary to the Supreme Court’s frequent admonition that facial challenges should be rare and disfavored. Third, the Article probes beneath the surface of current doctrines authorizing First Amendment exceptions and generates insights about the nature of First Amendment rights and the diverse interests that those rights protect. Based on variance in the Supreme Court’s receptivity to claims to First Amendment exceptions, the Article draws provocative conclusions about which underlying interests the Justices view as more and less deserving of judicial protection. Fourth, the Article exposes flaws in the Supreme Court’s reasoning in designing and applying frameworks authorizing First Amendment exceptions in two recent leading cases, 303 Creative LLC v. Elenis under the Free Speech Clause and Tandon v. Newsom under the Free Exercise Clause. Overall, the Article enriches previous understandings of how exceptions do and should fit into a complex ecosystem of First Amendment rights and interests.

Malapportionment—electoral districts with divergent ratios of people to representation—was ruled to be unconstitutional in a widely venerated series of cases before the Warren Court. Those cases held that a principle of political equality, one person, one vote, is required by the Constitution. But what is the content of that principle? Many Justices and commentators declare that it is vague, empty, circular, or meaningless. This creates a murder mystery. Malapportionment was killed, but by what exactly? This Article seeks an answer by focusing on the Supreme Court’s commitments about the scope and strictness of one person, one vote: it is a broad (rather than narrow) principle of rough (rather than exact) equality. As such, one person, one vote requires an equal number of people per district and an equal number of votes per voter; and it requires only a roughly equal number of people per district. These commitments are attractive in isolation. But, this Article shows that they are objectionable in conjunction: they entail that one person, one vote is too permissive, as it only requires a roughly equal number of votes per voter. If your vote is roughly equal to mine when your district is fractionally more populous than mine, your vote is also roughly equal to mine when I can cast fractionally more votes than you.

Since this problem follows inexorably from the Court’s commitments about the scope and strictness of one person, one vote, there are two possible solutions. First, one person, one vote could be a broad principle of exact equality; administrability may then justify underenforcing the principle in distributing voters to districts, but not in distributing votes to voters. Second, one person, one vote could include a narrow principle requiring rough equality in apportionment, as well as a distinct principle requiring exactly equal votes per voter. These solutions have important constitutional implications—including for resolving the population baseline at issue in malapportionment, which remains uncertain after the Supreme Court’s decision in Evenwel v. Abbott. But neither provides an easy way out. Each makes one person, one vote either too restrictive or too permissive.

This puzzle brings to light why the operative principle in a venerated series of cases is deeply unclear and unsettled. But it has a special significance beyond that. One person, one vote lies at the heart of America’s constitutional democracy, which is already under considerable threat. On the one hand, if the content of the principle is too restrictive (or too uncertain), then objections to its constitutionality are considerably strengthened. On the other hand, if it is too permissive, then one person, one vote provides little constraint on Vice President J.D. Vance’s recent proposal to give extra votes to parents, as well as myriad similar policies and procedures that would erode voters’ equality at the ballot box.

Statistics show that Americans consistently turn to Google and other search engines to answer their most personal and private concerns, yet a new investigative tool risks law enforcement having vast discretion in the access of this data. With a keyword warrant, law enforcement can request from a search engine provider (usually Google) a list of probative search queries that users made over a specified time period. Such warrants are beginning to face legal challenges, and so far, courts seem reluctant to recognize the constitutional implications—instead leaving law enforcement with greater potential discretion over their use. This Note assesses the constitutionality of keyword warrants by arguing that the underlying investigative process falls within the ambit of the Fourth Amendment. It further concludes that keyword warrants may pass constitutional muster in a narrow set of circumstances, but that doing so requires robust judicial oversight. Finally, this Note proposes a novel approach that magistrates can adopt to ensure that keyword warrants comply with core constitutional safeguards. This Note contributes to current discourse by becoming the first piece of scholarship to urge the recognition of Fourth Amendment implications of keyword searches while also envisioning a narrow case in which they may be constitutional and proposing a pragmatic solution to ensure the protection of Americans’ privacy interests.