In a brief concurrence, Justice Kennedy gave an impassioned defense of free speech. He claimed that through this law, California sought “to impose its own message in the place of individual speech, thought, and expression.” Such an imposition, he continued, approached the most despotic of tendencies: “history since [the founding] shows how relentless authoritarian regimes are in their attempts to stifle free speech.” We must “preserve and teach the necessity of freedom of speech” as embodied in the first amendment, and we must never allow the state “to force persons to express a message contrary to their deepest convictions.” Strong stuff, indeed. Justice Kennedy here articulates the standard liberal thesis that free speech stands at the center of a free society.
But, let’s not forget, Justice Kennedy is the swing vote on today’s Court finding a constitutional right to abortion! In other words, Justice Kennedy argues ferociously for the free speech rights of pro-life activists, AND he argues ferociously that those pro-life activists’ arguments should never be able to democratically succeed. Sure, pro-life activists should be legally permitted to argue their case in the public square. But even if those activists persuade a majority (or a supermajority) of their fellows to oppose abortion, Justice Kennedy replies: “Too bad. Abortion is here to stay no matter what a majority of the people or their representatives might want.”
I complained in my previous post about campus free speech arguments that suffer from a similar fault. On a college campus, the best argument for free speech is “I might learn something new.” In a democratic society, the best argument for free speech is “we might learn something new.”
To be clear, I’m not especially bullish on free speech. I find Millian “marketplace-of-ideas” arguments highly suspect, and I think there are plenty of good reasons to question a regime of largely untrammeled free expression. But IF there are decisive arguments in favor of free speech, “this is a useful way for free societies to arrive at democratic decisions” must be pre-eminent among them.
Of course, other arguments are often given. We might defend the sacred right of the white supremacist to defend slavery, even as our constitution prohibits a majority of voters from every re-instituting the practice. (Personally, I find such arguments thoroughly uninteresting). So there is no necessary contradiction in Justice Kennedy’s position. But it points us, frankly, to a silliness endemic in contemporary liberal discourse. It is difficult to take seriously a romantic defense of free and open expression that reduces to: “Believe what you want, argue your convictions, debate and persuade others of your view! But remember, no matter how many people you convince in the marketplace of ideas, there’s nothing you can ever do to change the law.”