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There is a problem in the basic structure of current free speech law. Consider two simple cases:

(A) A is ticketed for speeding. He claims a First Amendment violation. He argues—and this is his only argument—that a higher speed limit would have been safer and more fuel efficient.

(B) B is arrested for wearing a certain shirt. He claims a First Amendment violation. He argues—and the state concedes—that the legislature criminalized the wearing of such shirts solely because they bear a symbol expressing protest against state police practices.

Current doctrine gets these cases wrong. Believe it or not, under present Supreme Court case law, if A can prove what he alleges, his First Amendment argument ought to prevail, while B's might well be dismissed for failure to state a claim.

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