An excellent and concise explanation of why the First Amendment, and freedom of speech more broadly and more generally, matters to me:
Much of the Court’s opinion is devoted to deprecating the closed mindedness of our forebears…. Closed minded they were–as every age is, including our own, with regard to matters it cannot guess, because it simply does not consider them debatable. The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly.
It’s taken years of following SCOTUS particularly, and the legal sphere more generally, for me to realize that of all the issues out there, freedom of speech is the one I care about most. Without it, we can’t actually argue about all the other issues that matter, persuading each other, learning from each other, and so on. It is necessary for representative democracy to be able to freely discuss everything and attempt to persuade each other, for us to have any chance at sound policy. The late Justice Scalia gets it exactly right in this quote.
(Speech implications aside: I have no immediate opinion on the legal question in the case as I only discovered it today. For the policy question — which too many people will confuse with the legal question — I would agree with the case’s outcome.)
Rest in peace, Justice Scalia. I’ll miss your First Amendment votes, from flag burning to content neutrality and forum doctrine to (especially, for the reasons noted above) political speech (if not always), among the votes you cast and opinions you wrote. Others less inclined to agree with you might choose to remember you (or at least should remember you) as the justice whose vote ultimately struck down California’s Proposition 8, even as (especially as) you considered the legal question argle-bargle. As Cass Sunstein recognized, you were “one of the most important justices ever”, and the world of law will be worse without you.
(In the spirit of freedom of speech, I generally post all comments I receive, as written. I hope to do the same for this post. But if I must, I’ll moderate excessively vitriolic comments.)