Andrew C. Spiropoulos
Those who fear the arrival of the new conservative majority on the U.S. Supreme Court should have been calmed, at least for now, by the court’s decisions in the last term. Many cases, including the most important case on religious freedom, most thought would divide the court along the predicted ideological lines were either decided unanimously or produced unexpected alliances between justices thought to be sunk in political stone.
The term confirmed that in one area of constitutional law relevant to state and local government policymakers, the enforcement of the right to free expression under the First Amendment, the court will vigorously protect Americans’ right to hold and express their opinions against both direct public censorship and the machinations of private individuals who seek, with the help of the state, to punish expression they find offensive.
The foundation of this wall of protection is the court’s long-held principle that individuals must be afforded a nearly unlimited right to express themselves, even if the content of this expression offends or harms others. This term, the court affirmed this tenet in a case involving a high school student who, after she failed to make the varsity cheerleading squad, profanely expressed her rage and contempt for her team and school on a social media platform. Her coaches, supported by the school administration, threw her off the team for her offensive and immature rant. The court, while it acknowledged that the distinctive environment of a school affords it special authority to prevent the material disruption of its educational functions, held that, particularly with expression that took place off campus, the right of the student to express herself in her own way, no matter how vulgar or hurtful the speech, must prevail.
The court’s other important free expression case of the term, despite the majority’s claim that it was just applying established principles to different circumstances, did provoke progressive dissent. The court struck down a California law requiring charitable organizations that solicit donations to disclose the identities of major donors because the coerced disclosure of one’s identity will discourage many from donating to the charity of their choice because they fear retaliation either by the state or hostile private individuals who use the state disclosures to learn their identity. The court reasoned that the right to remain anonymous is a core component of the freedom of association protected by the First Amendment.
While the separate principles vindicated by these opinions are important and interesting, their true significance can only be appreciated when they are conjoined. These rulings arm threatened victims of today’s ubiquitous and destructive cancel culture with a powerful two-pronged attack against the attempted silencing of ideologically unpopular views. If a state university, for example, attempts to squelch opponents of the regnant political correctness, the rule that all expression, no matter how offensive, must be protected should shield dissident students and faculty. If the progressive censors take a different tack and decide to single out supporters of dissident organizations for abuse and harassment, the rule against compelled disclosure should make such campaigns difficult to execute.
While it is disappointing that the court’s progressives, at least this time, did not understand the need for strong protection of confidential association, when the arrows of political vitriol fly leftwards, these justices will likely realize their friends will also need to hide behind the court’s constitutional shield.
Andrew Spiropoulos is the Robert S. Kerr, Sr. Professor of Constitutional Law at Oklahoma City University and the Milton Friedman Distinguished Fellow at the Oklahoma Council of Public Affairs. The views expressed in this column are those of the author and should not be attributed to either institution.
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August 12, 2021 at 04:19AM
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Right Thinking: Supreme Court safeguards First Amendment freedoms - Journal Record
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