Defense Against the Dark Arts: Justice Jackson, Justice Kennedy and the No-Compelled-Speech Doctrine

23 Pages Posted: 10 Jan 2020 Last revised: 22 Jan 2020

See all articles by Richard F. Duncan

Richard F. Duncan

University of Nebraska at Lincoln - College of Law

Date Written: December 19, 2019

Abstract

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. And only a vibrant First Amendment is an adequate defense against this darkest of the dark arts.

The purpose of this Article is to trace 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 will focus on two magnificent judicial opinions defending this fundamental free speech right, the majority opinion of Justice Jackson in West Virginia State Bd. Of Educ. v. Barnette, and the concurring opinion of Justice Kennedy in Nat 'I Inst. Of Family & Life Advocates v. Becerra (NIFLA).

These two eloquent and powerful opinions are true landmarks of liberty, strong shields against authoritarian government and its 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.

Keywords: free speech, compelled speech, religious liberty, authoritarianism, village tyrants, flag salute, First Amendment, Justice Jackson, Justice Kennedy

JEL Classification: K19, K30, K42

Suggested Citation

Duncan, Richard F., Defense Against the Dark Arts: Justice Jackson, Justice Kennedy and the No-Compelled-Speech Doctrine (December 19, 2019). Regent University Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3506957 or http://dx.doi.org/10.2139/ssrn.3506957

Richard F. Duncan (Contact Author)

University of Nebraska at Lincoln - College of Law ( email )

103 McCollum Hall
P.O. Box 830902
Lincoln, NE 68583-0902
United States

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