Gregory Magarian


Thomas and Karole Greene Professor of Law

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Magarian is a well-known expert in free speech, the law of politics, and law and religion. He has written about a variety of topics in constitutional law, including free speech theory and doctrine, media regulation, regulation of political parties, the relationship between church and state, and substantive due process. His first book, Managed Speech: The Roberts Court’s First Amendment, was published in 2017 by Oxford University Press. His work also examines church and state, firearms regulation and regulations of the political process.

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Law and policy series lineup announced

Law and policy series lineup announced

The School of Law’s Public Interest Law & Policy Speakers Series spring lineup kicks off Feb. 4 with Gregory Magarian giving the lecture “The First Amendment and the Mess We’re In: From the Streets to the Cloud.”
What is the 25th Amendment?

What is the 25th Amendment?

In light of the Jan. 6 mob attack on the U.S. Capitol building, many Democrats, and even some Republicans, have called for the use of the 25th Amendment to remove President Trump from office. What is that amendment and how does it work? Washington University in St. Louis law professor Greg Magarian explains.
Withholding federal funds from ‘anarchist jurisdictions’ violates Constitution

Withholding federal funds from ‘anarchist jurisdictions’ violates Constitution

The U.S. Department of Justice has issued a list of “anarchist jurisdictions,” which it says have permitted violence and destruction of property to persist. If the Trump administration withholds federal funds from these jurisdictions based on the “anarchist” designation, that withholding of funds would violate the Constitution in at least two ways, says a Constitutional law expert at Washington University in St. Louis.
Trump attacks on Twitter betray free speech principles

Trump attacks on Twitter betray free speech principles

After President Donald Trump made unsubstantiated claims on Twitter about mail-in voting and Twitter responded by attaching a link to his tweets, Trump threatened to close down the social media giant. “The president appears to have no understanding of or concern for free speech,” says a constitutional law expert at Washington University in St. Louis.
Toward a more civil discourse

Toward a more civil discourse

Reappropriation — by which a group of people reclaims words or artifacts that were previously used in a way disparaging of that group — can tame uncivil discourse, finds a new study by political scientists and a law professor at Washington University in St. Louis.
WashU Expert: Freedom of speech, the NBA and China

WashU Expert: Freedom of speech, the NBA and China

Under principles of free speech, anyone — such as Chinese state television — is entitled to hold their view of anything, including the scope of freedom of speech, says Gregory Magarian, as Constitutional law expert at Washington University in St. Louis School of Law.
WashU Expert: What constitutes treason?

WashU Expert: What constitutes treason?

President Donald Trump has accused congressional Democrats who didn’t applaud his State of the Union address of treason. That accusation has no basis in law, and it reflects a deeply disturbing political philosophy, says an expert on constitutional law at Washington University in St. Louis.
Free speech and political stagflation

Free speech and political stagflation

First Amendment Law is distorting public debate. We need the Supreme Court to do better. Public political debate in the United States seems to have run off the rails. The gulf between Republicans and Democrats in political opinions, views of the other party, and even factual beliefs keeps growing. From a broader perspective, though, our problem isn’t too much chaos. It’s too much stability.
WashU Expert: The First Amendment and the Nazi flag

WashU Expert: The First Amendment and the Nazi flag

In the wake of the Aug. 12 confrontations between protesters and counter-protesters in Charlottesville, Virginia, some progressives are calling for legal restrictions on the display of the Nazi flag. These arguments are entirely understandable, but they often misapply existing First Amendment law, and they suppress free speech values that progressives — more than anyone else — should want to defend, says a constitutional law expert at Washington University in St. Louis.
WashU Expert: Churches should be wary of any Johnson Amendment change

WashU Expert: Churches should be wary of any Johnson Amendment change

President Donald Trump has vowed to “destroy” the Johnson Amendment, a 1954 provision under which tax-exempt entities such as churches and charities cannot participate in any political campaign. Doing so might actually be cause for concern among the religious organizations pushing for its repeal, says a constitutional law expert at Washington University in St. Louis.
WashU Expert: The importance of the First Amendment

WashU Expert: The importance of the First Amendment

Greg Magarian, professor of law at Washington University in St. Louis and noted expert on constitutional law, discusses what he sees as three prominent First Amendment issues that are important to emphasize right now: freedom of the press, proposed state laws directed at limiting street protests and free speech on campus.
WashU Expert: Brokered convention would be disaster for Republicans

WashU Expert: Brokered convention would be disaster for Republicans

As the Republican Party continues to roll toward selecting its presidential nominee, some party leaders and members of the media have begun to speculate about the possibility of a brokered convention. Such a move would almost certainly hurt the Republicans in the general election, said Washington University election law and constitutional law expert Greg Magarian.
Law school panel to discuss Scalia legacy

Law school panel to discuss Scalia legacy

Three experts on the Supreme Court from the School of Law will discuss the recent death of Antonin Scalia, his legacy and how his vacancy will be filled. The talk, “Justice Antonin Scalia: The Legacy and the Vacancy,” will be held from 12:05-1 p.m. Wednesday, Feb. 17. It is free and open to the public.

Wash U Expert: Missouri lawmakers expand gun rights​

Missouri lawmakers recently overrode a veto by Gov. Jay Nixon and passed a bill allowing school districts to designate teachers or administrators as school protection officers, able to carry concealed firearms into schools. The measure also lowered the age to apply for a conceal-and-carry permit to 19 from 21 and prohibits cities from banning open carry laws. Gregory P. Magarian, JD, constitutional law expert and professor of law, weighs in from the point of the view of the Second Amendment.

Wash U Expert: States should have some power over criminal laws of marijuana​​​​​

A bill introduced July 28 in the U.S. House of Representatives would amend the controlled substances act – the federal law that criminalizes marijuana – to exempt plants with an extremely low level of THC, the part of marijuana that makes users high. Following closely on the heels of a call by the New York Times editorial board for the federal government to legalize marijuana, this could mark a turning point of sorts in the campaign for legalization. Gregory P. Magarian, professor of law, sees two reasons for leaving states with some power over the criminal law of marijuana.

SCOTUS decision dooms campaign finance regulation as we know it​​​

The U.S. Supreme Court, in the McCutcheon v. FEC decision, removed the cap on the number and amount of donations a person can give during political campaigns. Gregory Magarian, JD, election law expert and professor of law at Washington University in St. Louis, says that this decision will have a major impact on campaigns – a much bigger impact than the earlier Citizens United campaign finance decision. This decision “marks then end of campaign finance regulation as we know it,” says Magarian.

Immediate effect of DOMA decision profound

The Supreme Court today struck down the federal Defense of Marriage Act (DOMA) and rejected a challenge to a lower court ruling that invalidated California’s ban on same-sex marriage, known as Proposition 8. Gregory Magarian, JD, constitutional law expert and professor of law at Washington University in St. Louis, says that the immediate effects of these decisions for same-sex couples will be profound. “The demise of DOMA means that the federal government must treat same-sex couples, legally married under state laws, just like opposite-sex married couples for purposes of federal benefits, tax status, etc,” he says. “The nullification of Proposition 8 appears to make marriage available to same-sex couples in the nation’s largest state, under a prior marriage law that Proposition 8 had purported to invalidate.”

SCOTUS decision kills “most successful weapon” against racial discrimination in voting

The Supreme Court’s decision in Shelby County v. Holder effectively kills the most successful weapon our nation has ever produced against racial discrimination in voting, says constitutional and election law expert Gregory Magarian, JD, professor of law at Washington University in St. Louis. He says the Court’s decision reflects a victory for two big ideas: state power, at the expense of racial justice; and judicial power, at the expense of democracy.

Three challenges for the First Amendment

A group of some of the country’s top scholars in First Amendment law recently gathered at Washington University in St. Louis to discuss pressing challenges being faced by the first of our Bill of Rights. Three issues rose to the top of the list for Washington University’s first amendment experts: free expression in a digital age; impaired political debate; and weakened rights of groups.

SCOTUS oral arguments reflect indifference to constitutional grounding of Voting Rights Act

The Supreme Court appears very likely to strike down the most important provision of the Voting Rights Act of 1965, says Gregory P. Magarian, JD, constitution law expert and professor of law at Washington University in St. Louis. “This was an unusually revealing oral argument, because two justices asked questions that reflected both fundamental misunderstanding of the law and disturbing indifference to the constitutional grounding of the Voting Rights Act,” he says.

First Amendment weakens gun rights advocates’ insurrection argument

Many gun rights advocates have asserted that the Second Amendment – which protects the right of the people to keep and bear arms – serves a collective interest in deterring and, if necessary, violently deposing a tyrannical federal government. “The strength of this assertion is significantly weakened by the power of the First Amendment,” says Gregory P. Magarian, JD, constitutional law expert and professor of law at Washington University in St. Louis. “We have spent almost a century developing the First Amendment as the main vehicle for dynamic political change. Debate and political expression is preferable to insurrection as a means of political change and our legal culture’s attention to the First and Second Amendments reflects a long-settled choice of debate over violent uprising.”

Constitutional law expert and former SCOTUS clerk comments on ACA decision

“I expected the Court to uphold the Affordable Care Act (ACA), however, two elements of this decision are very surprising: the fact that the mandate survives under the taxing power while failing under the Commerce Clause and Necessary and Proper Clause, and the fact that Chief Justice Roberts was in the majority without Justice Kennedy,” says Gregory Magarian, JD, constitutional law expert and professor of law at Washington University in St. Louis. “Roberts’ vote looks to me, as a first impression, like a brilliant piece of judicial strategizing.” Magarian is a former U.S. Supreme Court clerk 
for Justice John Paul Stevens.

Faith on the campaign trail: Romney’s religion to play a significant role

With the ballot nearly set for the November election, Mitt Romney looks to become the first Mormon to secure a presidential nomination for a major party. His membership in the church of Jesus Christ of Latter Day Saints assures that religion — and the separation of church and state — will play a significant role in this presidential election, says Gregory P. Magarian, JD, free speech and election law expert and professor of law at Washington University in St. Louis. “In general, I think it’s appropriate to consider a candidate’s religion as a part of their persona, but the candidate should get a lot of leeway in setting the terms of their religion’s role in political debate,” he says.

National Day of Prayer takes on added significance in 2012

The National Day of Prayer typically sparks debate about whether the day violates the establishment clause from the First Amendment to the U.S. Constitution. This year’s observance on May 3, however, likely will take on added significance, says John Inazu, JD, first amendment expert and professor of law at Washington University in St. Louis. The reason? 2012 marks the 50th anniversary of the Supreme Court’s decision in Engel v. Vitale, which invalidated official prayer in public schools.

Reactions to POTUS Supreme Court comments ‘reflect historical ignorance’

The Supreme Court’s upcoming decision on the constitutionality of the Affordable Care act has prompted some interesting and provocative issues about – and between – the president and the judicial branch, says Gregory P. Magarian, JD, professor of law at Washington University in St. Louis and former clerk for retired Supreme Court Justice John Paul Stevens. “These alarmed reactions reflect historical ignorance,” he says.

Birth control policy not a constitutional law issue

The current controversy over the Barack Obama administration’s birth control policy is not, contrary to some arguments, a matter of constitutional law, says Gregory P. Magarian, JD, constitutional law expert and professor of law at Washington University in St. Louis. It is however, a matter of Constitutional principle, Magarian says.

Could the GOP be headed for a brokered convention?

Three Republican primaries or caucuses have ended with three different winners. Upcoming state contests may make the Republican candidate picture clearer, but if division remains, the GOP could end up with a brokered convention. “If the process of voting based on delegates’ commitments does not produce a nominee, then something has to break the logjam,” says Gregory P. Magarian, JD, election law expert and professor of law at Washington University in St. Louis. Magarian discusses the potential for a surprise candidate and the impact of superdelegates.

SOPA, PROTECT IP will stifle creativity and diminish free speech, say WUSTL experts

Wikipedia and other sites plan to go dark to protest the Stop Online Piracy Act (SOPA) and the PROTECT IP Act under consideration in Congress. Three law professors from Washington University in St. Louis, Kevin Collins, Gregory Magarian and Neil Richards, signed a letter to Congress in opposition to the PROTECT IP Act. Read Magarian and Richards’ current comments on SOPA and PROTECT IP.

Supreme Court Texas redistricting case could mark major change in Voting Rights Act

In the case currently before the U.S. Supreme Court, Texas is contesting a federal court’s redrawing of the state’s electoral district lines for the upcoming primary election. Under Section 5 of the Voting Rights Act, Texas must get preclearance from the U.S. Department of Justice before it can institute any voting changes. “This case gives the Supreme Court an opportunity to weaken or even strike down Section 5,” says Gregory Magarian, JD, election law expert and professor of law at Washington University in St. Louis. “If Texas wins, even if the Court stops short of striking down Section 5 altogether, it will mark a major change in the law. The Supreme Court will essentially be saying that racial voting discrimination by state officials is no longer a problem that justifies a federal remedy.”

Supreme Court’s Affordable Care Act decision will have massive, immediate impact

The Supreme Court will hear several states’ legal challenges to the Affordable Care Act, ensuring that the court — in late June 2012 — will deliver a momentous statement about the ever-contentious constitutional balance between federal and state power. “The key element of the states’ lawsuits targets the act’s requirement that everyone in the country must purchase commercial health insurance,” says constitutional law expert Gregory P. Magarian, JD, professor of law at Washington University in St. Louis.

‘Occupy’ protests a First Amendment balancing act

The Occupy protests present a classic First Amendment problem: balancing political dissent against government control of property. “In theory, the government has very limited authority to curb expressive activity in what the law calls ‘public forums,’” says Gregory P. Magarian, JD, constitutional law expert and professor at Washington University in St. Louis School of Law.

Religious arguments both damage, strengthen the political process

Despite the separation of church and state, religion plays a significant role in political debate. Gregory P. Magarian, JD, free speech and election law expert and professor of law at Washington University in St. Louis, says that certain forms of religious argument pose a meaningful threat to democracy, but restricting these arguments would be an even larger threat to U.S. political culture.

ACLU’s Internet filtering suit against Mo. school district will be hard fought, WUSTL expert says

The American Civil Liberties Union (ACLU) recently filed a lawsuit against the Camdenton, Mo. school district for using filtering software to block websites targeted to the gay and lesbian community. “The Supreme Court has made clear that school districts have great latitude in choosing what educational materials they make available to their students,” says Gregory P. Magarian, JD, constitutional law expert and professor of law at Washington University In St. Louis. “However, in a case in 1982, a plurality of the Court suggested that schools may not have the authority to remove materials from school libraries based on viewpoint discrimination.”

The birther issue: A Constitutional look

President Barack Obama released his birth certificate on April 27, but “birther” arguments continue. Election and constitutional law expert Gregory Magarian, JD, professor of law at Washington University in St. Louis, says that Obama clearly meets the constitutional qualifications to hold his office. Magarian discusses various situations where “natural born citizen” (as required by Art. II, sec., 1 cl. 4 of the Constitution) may come into question during a presidential election.

Missouri legislators quick to overturn voter-approved initiatives because voters have allowed it, constitutional law expert says

Last November, Missouri voters approved Proposition B, which amended state law to more strictly regulate large-scale dog breeders. Now, just four months later, Prop B is set to be repealed if the Missouri House of Representatives and Gov. Jay Nixon follow the state senate’s lead. Can this happen in every state? Only if the voters allow it, says Gregory Magarian, JD, professor of law at Washington University in St. Louis and an expert on constitutional law.

Constitution does not forbid health care bill, says legal expert

The Supreme Court should affirm the constitutionality of the Affordable Care Act, contends Washington University in St. Louis law professor Greg Magarian, JD, because the Act fits comfortably within a proper understanding of the federal-state balance of power. Magarian, a constitutional law expert, says the basic argument against the constitutionality of the health care bill is that some parts of the bill, most notably the requirement that people purchase health insurance, exceeds Congress’ power to regulate interstate commerce.

What Kagan can expect the first day on the bench

Monday, Oct. 4, the opening day of the Supreme Court term, marks Elena Kagan’s first day behind the bench as a Supreme Court justice. Gregory Magarian, JD, professor of law at Washington University In St. Louis and former clerk for retired Justice John Paul Stevens, says that the experience of oral argument from the other side of the bench will be entirely new to Kagan. “There is no formal or conventional restriction on new arrivals’ participation in argument, but in all likelihood, Justice Kagan will display a bit of reserve at first while she gets used to the rhythm of questioning by nine justices,” Magarian says.

Final say on same-sex marriage may be years away

A district judge’s decision to overturn California’s Proposition 8 ban on same-sex marriage technically puts the issue one step away from the U.S. Supreme Court. But Washington University in St. Louis experts say a final ruling may wait until other, similar cases work their way through the legal system.

‘Pragmatic populist’ retires: Former clerk reflects on Stevens and the Supreme Court (VIDEO)

“The retirement announcement of Justice John Paul Stevens does not come as a big surprise, but it is still a sad day,” says Gregory P. Magarian, JD, former Stevens clerk and professor of law at Washington University in St. Louis. “The Supreme Court is losing a great jurist and a great man.” Magarian calls Stevens a “pragmatic populist” because of the way he approached his decisions with the court. “Stevens always has been very focused on what a Supreme Court decision is going to do to an ordinary person,” he says. “He’s never written an opinion just to make a point or put on a show.” 

Supreme Court’s campaign spending decision delivers blow to political process

The Supreme Court’s decision to overturn campaign spending limits for corporations “strikes a serious blow against efforts to stem the dominance of corporations in our political process,” says Gregory  P. Magarian, J.D., constitutional and election law expert at Washington University in St. Louis.  “The Court overruled a longstanding decision that had struck a sensible, carefully drawn balance between the self-interest of corporations and interests of integrity and fairness in the political process.“

Voter fraud allegations are pure bluster, says election law expert

Magarian”No evidence exists of any serious threat of voter fraud, at present or in any recent election cycle,” says Greg Magarian, J.D., election law expert and professor of law at Washington University in St. Louis. The current cries of ‘fraud’ focus on the Association of Community Organizations for Reform Now (ACORN), a public interest organization that advocates for low- and moderate- income and minority citizens. “Filing false registration forms does not constitute voter fraud,” he says. “Voter fraud requires voting by a person who is not legally entitled to vote. That is a difficult trick to pull off, and simply turning in a registration form for ‘Captain Crunch’ does almost nothing to enable it.”

Electoral system imposes formidable barriers to minor parties and drives politics to the center, says election law expert

Magarian”Minor political parties’ inability to gain traction in the United States does not reflect natural facets of our national character,” says Gregory P. Magarian, election law expert and professor of law at Washington University in St. Louis, home of the 2008 vice presidential debate. “Rather, our legal system imposes formidable barriers to minor parties’ electoral viability. The use of plurality voting (the candidate with the most votes gets the only prize) and single-member districts in congressional and most state legislative elections drives voters to coalesce around only two electoral options, marginalizing any candidate who lacks a major-party brand.” Magarian is available to discuss general election law and electoral system issues.

Electoral college imposes formidable barriers to minor parties and drives politics to the center, says election law expert

Magarian”Minor political parties’ inability to gain traction in the United States does not reflect natural facets of our national character,” says Gregory P. Magarian, election law expert and professor of law at Washington University in St. Louis. “Rather, our legal system imposes formidable barriers to minor parties’ electoral viability.” Magarian is available to discuss general election law and electoral system issues.

Books

Managed Speech

Managed Speech

The Roberts Court's First Amendment

Gregory P. Magarian examines more than 40 Supreme Court free-speech decisions and critiques the ways in which the court, led by Chief Justice John Roberts, has reshaped and degraded the law of expressive freedom.