The purpose of this Article is to advance three propositions as worthy of consideration by courts when deciding cases involving a conflict between the First Amendment and the Fourteenth Amendment’s Equal Protection Clause.
The first proposition is that cases brought under the First Amendment should take as their core concern the inherently private nature of mental life, as distinguished from political and social interactions. This is a departure from the more traditional view that First Amendment protection is necessary to guarantee truth and democracy. My goal is not to suggest that mental life is under some sort of direct attack, but rather to suggest a natural privacy essential to individual liberty that mental life affords. In this sense, the purpose is to protect the a priori conditions of liberty as a precondition to the protection of liberty itself.
The second proposition is that cases brought under the Fourteenth Amendment’s Equal Protection Clause should focus on the status of individuals within society and should be concerned, at least in the first instance, with significant departures from legal equality or serious cultural impairments to full equality of opportunity that arise from the operations of government or the laws of the state. The use of the words “significant” and “serious” here is not only meant to avoid debates over issues properly designated as de minimus, but, more importantly, to suggest that not all impairments will affect individual life prospects to the same degree. In this sense, the Equal Protection Clause may operate more at the empirical level in the way society’s institutions treat its citizens. . . .