National Review: In Defense of Free Speech, Justice Thomas Wielded the Scalpel, but Justice Kennedy Brought the Hammer
Now, on to Justice Kennedy. While he agreed with the majority “in all respects,” he wrote a short and brutal concurrence to specifically chastise California for its apparent viewpoint discrimination and to express concern that pro-life citizens were specifically and intentionally “targeted” because of their beliefs. This passage is striking:
The California Legislature included in its official history the congratulatory statement that the Act was part of California’s legacy of “forward thinking.” App. 38–39. But it is not forward thinking to force individuals to “be an instrument for fostering public adherence to an ideological point of view [they] fin[d] unacceptable.” Wooley v. Maynard, 430 U. S. 705, 715 (1977). It is forward thinking to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders then knew it; to confirm that history since then shows how relentless authoritarian regimes are in their attempts to stifle free speech; and to carry those lessons onward as we seek to preserve and teach the necessity of freedom of speech for the generations to come. Governments must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief. This law imperils those liberties.
