Leveling in the First Amendment Context

Is All Unequal Treatment Created Equal?

Since at least 1971, the Supreme Court consistently has recognized leveling either up or down as an acceptable remedy for Equal Protection violations. Three seemingly conflicting cases decided in 2020, however, have brought into question whether the same leveling remedies that are available in the Equal Protection context are available in the First Amendment context. This Note first analyzes the Court’s leveling jurisprudence in the Equal Protection context. It then analyzes the Court’s opinions in the three above-mentioned First Amendment cases. It also discusses the arguments for and against leveling in the academic literature and asks whether the First Amendment context should be treated any differently from the Equal Protection context. It finally recommends that leveling in either direction should be an acceptable remedy in all unequal treatment First Amendment cases.

a. J.D., 2022, University of Illinois College of Law; D.M.A., University of Miami; M.M., DePaul University; B.M., University of North Florida. Special thanks to my wife Michelle and our first child Max for their endless love and support. I would also like to thank Professor Jason Mazzone for his guidance on this topic and Chief Judge Rebecca R. Pallmeyer of the U.S. District Court for the Northern District of Illinois for her invaluable mentorship.

The full text of this Note is available to download as a PDF.