Professor Marci A. Hamilton, Je Suis Charlie, Hamilton and Griffin on Rights

Je Suis Charlie

The Islamic State and its fellow extremists seek to merge the power of government and religion to force the world to bow to their beliefs.   They need to understand that the implacable opposition of the West is not merely because we aren’t fellow believers, but also because their strategy is doomed to ruinous failure. Christianity already tried this tack—it doesn’t work.   The murders in France and across the world are just senseless. Thus, we cannot bow, because we will not.

What needs to be said about this vicious attack on journalists and critics has been said before, in the following eloquent and prescient statements of our forebears and jurists:

  1. “During almost fifteen centuries has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the Clergy, ignorance and servility in the laity, in both, superstition, bigotry and persecution.”

–James Madison, Framer of the Constitution and the First Amendment

The Memorial and Remonstrance (1785)

  1. The First “Amendment embraces two concepts — freedom to believe and freedom to act. The first is absolute, but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society.”

–Justice Owen J. Roberts, for a unanimous court in Cantwell v. Connecticut (1940)

  1. “As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing. Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.”

–Justice Robert H. Jackson, for the majority in West Virginia State Board of Education v. Barnette (1943)

  1. “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.”

–Justice Robert H. Jackson, for the majority in West Virginia State Board of Education v. Barnette (1943)

  1. The “function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”

Justice William O. Douglas, for the majority in Terminiello v. Chicago (1949)

  1. The First Amendment guarantees a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” We can expect that this robust debate will “include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

–Justice William J. Brennan, for the majority in New York Times v. Sullivan (1964)

  1. “The sort of robust political debate encouraged by the First Amendment is bound to produce speech that is critical of those who hold public office or those public figures who are ‘intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large.’”

Chief Justice Rehnquist, for a unanimous court in Hustler v. Falwell (1988)quoting Associated Press v. Walker (1967).

  1. The Supreme Court’s “decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

            –Per Curiam, Brandenburg vOhio (1969)

  1. “[T]he fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection.”

–Justice John Paul Stevens, for the majority in FCC v. Pacifica Foundation (1978)

  1. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

–Justice William J. Brennan, for the majority in Texas v. Johnson (1989)