Finally, we are expected to engage abundantly in civil discourse. If you listen to the
founders, the primary purpose of free speech is to have us maintain a free government.
The cases I have chosen here are first amendment cases. They concern publicly disapproved
speech and actions. Yet the court is not only protecting them, it is, in the process,
admonishing us all to do more of it. And not just with our friends. We are always to be
pursuing the common good, and we can't do that if we have never listened to the advocates
of all the divergent ideas out there in society.
Justice Brandeis holds out to us a “path of safety”. Safety for what? Our whole way of
life. Free people will only remain that way if they “discuss freely supposed grievances
and proposed remedies”. I suggest that freely means not only no self imposed gags, but
also hearing without malice, and without boundaries.
Justice Brandeis was defending a communist. In the second case, Justice Fortice is
defending school kids wearing black arm bands in protest of the war in Viet Nam. Here,
Justice Fortice comes right off the court bench to address us, the American citizens, in
saying we must risk our own comfort to speak out about what we believe, even in an “often
disputatious society”. He freely acknowledges that in so doing we enjoy a hazardous
freedom. But bottom line, he feels that this hazardous freedom is the necessary force
behind our national strength.
Discuss Fully
Whitney v. California, 274 U. S. 357, 375 (1927)
“. . . the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they, (the founders), eschewed silence “. . . Justice Brandeis 1927
Tinker v. Des Moines School District, 393 U.S. 503, 508 (1969)
The District Court concluded that the action of the school authorities was reasonable because it was based upon their fear of a disturbance from the wearing of the armbands. But, in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority's opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, Terminiello v. Chicago, 337 U. S. 1 (1949); and our history says that it is this sort of hazardous freedom -- this kind of openness -- that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.
Justice Abe Fortice