I don’t know why a little-noticed speech Justice Samuel Alito gave in February to the annual meeting of the Claremont Institute has suddenly blossomed into something to be remarked upon, but it’s always a good idea to see what Supreme Court Justices think about public policy advocacy topics. To quote Calvin Terbeek in the Faculty Lounge blog: “This is a speech worth paying attention to.”

Unfortunately, even the Claremont Institute hasn’t put out a video of the speech, having marked what had been available as “private” and thus not viewable. Fortunately, the mavens at SCotUSMap (which tracks the travels of the various Justices) have produced a partial transcript, from which these public policy advocacy-related excerpts are extracted:

Our Constitution does not give free rein to the majority. Our Framers knew very well that the majority may oppress. And therefore, our Constitution places fundamental rights beyond the majority’s reach, and the Supreme Court has the responsibility to protect those rights.

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Our constitutional system cannot survive unless citizens are allowed to speak freely on issues of public importance. Freedom of speech is not a prerogative of those in positions of power or influence. It is not the property of those who control the media. It is the birthright of all Americans.

But today, unfortunately, freedom of speech on important subjects is, I believe, in greater danger than at any prior time during my life. Powerful forces want to silence the opposition. Consider this: in the last Congress, 48 Senators sponsored a resolution proposing a constitutional amendment that would preserve the free speech rights of the media elite but allow Congress and the state legislatures to restrict the speech of everybody else on any subject that came up during the political campaign, which is to say, any important social or economic problem facing the country.

This is a startling development. The very idea of amending the First Amendment is quite something. And if this amendment were adopted, freedom of speech as we have known it would be transformed.

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[I]t is not comforting to see how European nations that profess to respect freedom of speech deal with the speech of the unenlightened side on cultural issues. I’ll give you two examples. In France, a group recently wanted to air a video on Down Syndrome Awareness Day. It is called, Hello, Future Mom. And in the video, children speaking a number of different languages, children with Down Syndrome speaking a number of different languages, attempt to show that they are able to live happy lives, albeit not without a lot of difficulty and sacrifice on the parts of their parents. The message is entirely positive. I advise you to view it on YouTube. I found it quite moving. You may agree with it, you may not agree with it, but that is not really the point.

The French authorities banned the video on French TV. Why? Because it was, quote, likely to disturb the conscience of women who have lawfully made different personal life choices.

Alright, you may say, this is France, they have a different legal system and a different history. Let’s move across the English Channel to Great Britain. In a leading case in Great Britain, a street evangelist named Harry Hammond made a sign that says, quote, Jesus gives peace, Jesus is alive, Stop immorality, Stop Homosexuality, Jesus is Lord. Now again, you may agree with it, you may disagree with it, that’s really beside the point.

What did Mr. Hammond do? One afternoon, he took his sign to the town square and held it up, and some of the people who saw it took offense. They attacked him. They threw mud on him, they pushed him to the ground, they tried to take his sign away. The police arrived, and they made an arrest. Who did they arrest? They arrested Hammond. He was charged with a crime and he was convicted and fined because his sign was insulting. He gave offense.

More troubling than these developments abroad is the erosion of support for free speech among the young, particularly students, and particularly college students. Students increasingly believe that it is legitimate, and indeed, essential, to ban speech that gives offense, or, to use a popular phrase, speech that makes them feel unsafe.

A recent article just within the time I’ve been here reported these survey results: a majority of high school students share this view. They think it’s right to ban offensive speech. Now where did they get this idea? The survey shows that a near majority of high school teachers also share this view.

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Now, I think we should aim in our public discourse for debate that is rational, that is civil, and that is conducted in the spirit of goodwill. But important ideas are sometimes disturbing. They may offend. Self-government is not for the faint of heart. But what is going on in these schools is really a moral virus that is threatening to the future of our country. As Learned Hand aptly said years ago, liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can do much to help it.

If the American people come to accept the views of our European friends, or the university vanguard, that speech can be banned if it makes them feel uneasy, if it gives offense, it is really hard to see how government of the people, by the people, and for the people can survive.

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