First Page
617
Abstract
Popular resistance to the weaponization of government has eroded in America. On the political Right, the post-Reagan consensus favoring limited government has given way to a new generation of leaders—like Vice President J.D. Vance and Florida Governor Ron DeSantis—who openly advocate for using state power against their political opponents. Collectively they are the New Right: a populist, antiestablishment, conservative movement opposing pluralistic systems, institutions, and cultural elites. While both political liberals and conservatives have wielded state power against their adversaries, leveraging state power to reward friends and punish enemies is fundamental to the New Right’s worldview. Following German jurist Carl Schmitt’s political theory, the New Right frames government as a tool for waging cultural and political battles. In this environment, politicians explicitly declare their intent to retaliate against critics for exercising their First Amendment rights, yet their official retaliatory actions often escape judicial scrutiny by maintaining facial neutrality.
Current First Amendment retaliation doctrine, complicated by the principle set forth in United States v. O’Brien, is ill-suited to address this movement. The O’Brien principle holds that courts cannot invalidate an otherwise constitutional statute solely based on alleged improper legislative motives. This Note critiques O’Brien’s rigid framework while offering one of the first analyses of National Rifle Association of America v. Vullo, where Justice Ketanji Brown Jackson’s concurrence offered First Amendment retaliation doctrine as a possible analytical framework for the government retaliation in that case. Drawing on the factors established in Village of Arlington Heights v. Metropolitan Hosing Development Corp., this Note proposes a more holistic approach to retaliation claims that considers both government actions’ effects and officials’ statements in uncovering retaliatory intent. By reconsidering the application of O’Brien, this Note aims to safeguard free speech against the backdrop of a political environment increasingly characterized by the strategic use of state power for partisan purposes.
Recommended Citation
Jon McNeal,
Retaliation and Confrontation of the State,
78 Vanderbilt Law Review
617
(2025)
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol78/iss2/5