Monday, April 06, 2015

Free Speech as Protecting Freedom of Thought and Conscience

Laurence Tribe, 57 U. Chi. at 1069:

Suppose that the government conspired with the TV networks to include subliminal messages urging viewers to “return the Administration to office” in key broadcasts shortly before a national election. Would this action violate any of your rights? The literal terms of the First Amendment do not prohibit such messages, but Justice Harlan's point was that the freedom of speech, the freedom of religion, and so forth make sense only if connected by a broader and underlying principle of freedom of thought and conscience.

See also Griswold opinion explaining the right of parents to educate their children in non-public schools as advancing the idea that:

the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge. The right of freedom of speech and press includes not only to utter or print, but the right to distribute, the right to receive, the right to read, and freedom of inquiry, freedom of thought, and freedom to teach, indeed the freedom of the entire university community.

See also Wooley v. Maynard: "We begin with the proposition that the right of freedom of thought protected by the First Amendment...includes both the right to speak freely and the right to refrain from speaking at all." 430 U.S. at 714.

Can government use its control over K-12 education funding to teach a captive audience of impressionable children the "truth" about human origins, sexual morality, marriage, family and many other values-laden concepts? Is this consistent with freedom of thought and belief-formation?

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