Professor’s Research, Teaching Intersects with Historic, Current Issues

Heidi Kitrosser mines cases, intertwined concepts of First Amendment, presidential power, secrecy

The intersections among First Amendment law, presidential power, and government secrecy have been throughlines in the research and teaching of Heidi Kitrosser, William W. Gurley Professor of Law at Northwestern Pritzker School of Law, in ways that are variously relevant to American governance and separation-of-powers dynamics, both past and present.

Kitrosser’s focus on First Amendment protections for free speech dates to her high school days, when the 1989 case Texas v. Johnson was argued before the Supreme Court, which decided 5–4 in favor of the notion that flag burning, however offensive it may be to many people, is a constitutionally protected form of expression. Even at that age, she thought, “There’s an irony in people who want to punish others because they don’t like the message they send when they’re burning the flag,” given that freedom of speech is among the most important values that the flag represents.

During her undergraduate days at University of California, Los Angeles, Kitrosser took courses in constitutional law that appealed to her intellectually, not only because of the salient issues they raised, but also because “I really loved the type of analytical thinking that constitutional cases entailed. And all of that made me want to go to law school.” She subsequently graduated from Yale Law School.

When Kitrosser began teaching, first at Brooklyn Law School and later at University of Minnesota before joining Northwestern’s faculty in 2022, she expected to be predominantly researching and writing about First Amendment and the free speech clause but was unexpectedly drawn to the issues of separation of powers and government secrecy. “There is a lot of overlap with those issues,” she says.

Part of Kitrosser’s motivation was the September 11 terrorist attacks and changes in government policies in the years thereafter that led to new discussions about presidential power and government secrecy. “I increasingly wanted to probe into those areas, and teach about them, and write about them and research them,” she says.

Another common thread in Kitrosser’s research has been the importance of reliable public information in preserving democracy and the rule of law, along with “the danger of allowing government to have excessive discretion to decide what people are allowed to know,” she says. “That overlaps a lot not only with the First Amendment, but also with issues like presidential power. Because often, when speech is suppressed, or when the federal government tries to suppress speech, it’s in the name of national security or presidential power.”

Rotation of Classes
The core “rotation” of three classes that Kitrosser teaches, including first-year Constitutional Law, Presidential Power and the Law, and a seminar called Topics in Government Secrecy, all relate back to this research in various ways. “All of those meld with my key interests,” she says.

Constitutional Law naturally ties to the rule of law and the importance of guaranteed protections against government tyranny, Kitrosser says. Among her favorite cases to teach in that class is United States v. Nixon, in which the Supreme Court decided that President Richard Nixon did not have the unlimited right to withhold the famous Oval Office tapes from being disclosed in a district court as part of the criminal prosecutions after the Watergate break-in.

“National security is an important interest, and some degree of executive discretion … is necessary in order for the government to be run,” she says. “But what happens when another branch—in that case, the judiciary—says the president needs to do certain things?” Nixon asserted that he alone had the right to decide when “it would be improper or dangerous” to turn over information, but the court disagreed.

Another favorite case of hers is Youngstown Sheet & Tube Company v. Sawyer, in which the Supreme Court ruled that President Harry S. Truman did not have the right to issue an executive order to seize steel mills at which workers planned to strike, despite the need for steel during military operations in Korea. The company had sought an injunction in federal court saying the president lacked the power to bring a private business under federal control.

Youngstown argued “any power the president has, has to either come directly from the Constitution, or it has to come from a statute,” Kitrosser says, adding that the court decided: “The president has effectively engaged in lawmaking here. There’s no statute authorizing him to do this. He’s just decided that it’s a good idea, and that runs counter to our constitutional scheme. He’s not a king.”

The Presidential Power class also zeroes in on those kinds of issues and probes further, Kitrosser says. “We’re able to go very far beyond [Constitutional Law], to look more deeply into the types of arguments presidents have made for extensive powers,” she says. “And the types of arguments that other interests have made to push back on that.”

The Topics in Government Secrecy seminar delves into many similar questions, although with an emphasis on government information and to what degree different parts of the government can keep certain things under wraps; Kitrosser focuses on the federal government, although student current events presentations sometimes touch on the state level.

The class covers basic issues like executive privilege and goes into depth on “some of the First Amendment principles underlying the question of, for example, the executive branch’s ability to try to stop national security information from being published by the press,” she says, “like in the famous Pentagon Papers case (New York Times v. United States), which was also during the Nixon administration. So, there is a lot of very important overlap between the research that I do and the topics that I teach.”

In the past few years, Kitrosser’s research has gravitated toward what sorts of strings the government, whether federal or state, can place on grants it gives to organizations to produce research, teaching, writings, or other forms of speech—including institutions that it runs, like public schools or public higher education.

“How much political control can the government place on those activities that they’re funding or sponsoring?” she says. “I make the argument, in a series of articles I’ve written over the last few years, that the government does not have unlimited power to impose, let’s say, viewpoint-based restrictions on schools, or universities, or researchers, or others simply because they receive federal money or state money, or even if they work in a public institution.”

That argument is relevant to current events, related to questions raised by the Trump administration’s targeting of colleges and universities, government-sponsored museums, and other grant recipients, which Kitrosser notes the administration “often describes as involving things like whether they think the institution is too ‘woke’.” President Trump has said the Smithsonian Institution, for example, talks too much about “bad aspects of American history” and “how bad slavery was,” she says.

Kitrosser also has been writing more about the government’s ability to punish newspapers or other media sources on the basis that they have published classified information. “It has been a big issue in the last 20 years or so, but I think we’ll see it as another tool that the Trump administration tries to use to go after its critics,” she says. “I’ve written about it in the past, and now there’s a lot going on in the world that will probably lead me to write some more about it.”

Even before the current presidential administration, for several years states have been passing laws trying to limit how certain topics can be taught at colleges and universities, or even in K12 systems, Kitrosser says. “Also, a number of state laws target certain library books,” she says. “So those also relate to these First Amendment issues I’ve been writing about.”