Supreme Court’s free speech decision affirms Constitution’s deep magic
Story by Tyson Langhofer, Washington Examiner, 7/1/23
Progressives are waging a campaign to turn back the clock on the First Amendment — whose doctrine is now characterized by robust speech protections that were championed by liberal justices in the 20th century.
Whether it’s laws compelling artists to create speech celebrating messages they don’t wish to convey, as in 303 Creative v. Elenis — which the 10th Circuit said had the “very purpose” of “[e]liminating ideas” about traditional marriage — or school policies that bar anyone from questioning whether a particular gender exists, progressives manifest a clear intent.
They want to force society back to a time when the government could ban speech that advocates the moral propriety of any course of conduct other than what the government has blessed.
In cases like 303 Creative, progressives say that not speaking is a sort of “conduct” that can be regarded as discrimination, and in order to ban the act of discrimination, they can compel the artist to speak. The Supreme Court didn’t agree in its decision reversing the 10th Circuit in that case on Friday.
Progressives adopt the kind of reasoning that the Supreme Court once permitted. Reasoning that justified imprisoning Communists and Great War protesters (the “progressives” of their day).
But in one of those very cases, Justice Louis Brandeis wrote prophetically, “[The Founders] believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.”
This is the deep magic of the United States Constitution — which was founded on a Declaration that was itself speech in support of acts prohibited by law.
The First Amendment gained new life in the 20th century in response to increased attempts by government officials to stifle dissent and to compel pledges of allegiance to their orthodoxy and nationalism. Ultimately, our system stands for nothing, if not the ability to disagree with the government and speak (or not speak) accordingly.
The Supreme Court’s ruling for Lorie Smith conjures the same constitutional deep magic to ward off the progressive attempt “to coerce uniformity of sentiment in support of some end thought essential” by the government. And we should all be glad, including those of us who stand against all hateful discrimination. That’s because attempts to ban some ideas or to force the profession of others only serve to stoke the fires of hatred all the more. As Brandeis himself explained, “it is hazardous to discourage thought,” because “fear breeds repression,” and “repression breeds hate.”
303 Creative follows the same rule the Supreme Court followed when it upheld the anti-discrimination laws of the 1960s while also vigorously guarding speech. As it said when protecting the passionate speech of NAACP field secretary Charles Evers, ours is a “profound national commitment that debate on public issues should be uninhibited, robust, and wide-open.”
This commitment must be profound because speech is the precondition for free government.
Consequently, as Brandeis wrote, “Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears.” The “fitting remedy for evil counsels is good ones,” but they can only have their liberating power if they are spoken from one free citizen to another.
In a way, our Constitution’s deepest magic relies on each of us to say the magic words. The Supreme Court’s ruling in 303 Creative preserves our right to speak — to dispel the fear that drives people to shrink from freedom. Let’s use it well.
Tyson Langhofer is senior counsel and director of the Center for Academic Freedom at Alliance Defending Freedom (@ADFLegal), which represents Lorie Smith and 303 Creative.