Date of this Version
REGENT UNIVERSITY LAW REVIEW, Vol. 32:265 (2020)
According to Justice Anthony M. Kennedy, "The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought. " If this is so, and I believe it is, then the greatest threat to freedom, the darkest of the dark arts of government, occurs when the law compels persons to speak and thus commandeers their intellectual autonomy. Only a vibrant First Amendment is an adequate defense against this darkest of the dark arts.
This Article traces the Supreme Court's First Amendment jurisprudence protecting speaker autonomy and the "right not to speak" from its origins in the flag salute cases to the present. In particular, I focus on two magnificent judicial opinions defending this fundamental free speech right, the majority opinion of Justice Jackson in West Virginia State Board of Education v. Barnette and the concurring opinion of Justice Kennedy in National Institute of Family & Life Advocates v. Becerra (NIFLA). These two eloquent and powerful opinions are true landmarks of liberty and strong shields against an authoritarian government's tyrannical attempts to coerce ideological orthodoxy by compelling individuals to say things they wish not to say. In Justice Kennedy's case, his concurring opinion in NIFLA was issued near the end of his final term on the Supreme Court, and thus it represents an exclamation point on his wonderful legacy of protecting freedom of thought and freedom of speech. Although these opinions are separated by seventy-five years, they share a common understanding of the importance of the First Amendment for the protection of intellectual autonomy from authoritarian officials and compelled ideological conformity.