Legal Scholarship
 

Abstract

In his dissenting opinion in United States v. Schwimmer (1929), Supreme Court Justice Oliver Wendell Holmes, Jr., famously defended tolerance as an indispensable constitutional value. He wrote: “[I]f there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought – not free thought for those who agree with us but freedom for the thought that we hate.”

Yet accepting that the Constitution protects the thought that we hate can be difficult, even during the best of times. And these are far from the best of times. Nuclear brinksmanship has returned. Extreme partisanship prevails. Equality and religious liberty are cast as antagonists. Overt racism and bigotry are resurgent.

In unsettled periods such as these, many see a constitutional commitment to freedom for the thought that we hate as just another means of maintaining an unacceptable status quo. Why should we tolerate offensive speech that hurts and divides – particularly within broadly inclusive spaces such as public universities? Why doesn’t the constitutional promise of equality permit us to exclude from public debate views that dehumanize and seek to revive the sins of the past?

Publication Date

10-8-2017

Journal Title

Concord Monitor

Document Type

Editorial

Additional Information

This article is part of the series Constitutional Connections by John M. Greabe and was originally published by the Concord Monitor.

The title of the online version of this article is "Constitutional Connections: Freedom for the Thoughts That We Hate?"

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