Justice Alito is Right: Freedom of Speech and Religion Face Real Threats | Opinion

Last Thursday evening, Supreme Court Justice Samuel Alito delivered the keynote address for the National Lawyers Convention of the Federalist Society. The reaction from news and opinion outlets was swift and decisive. Various journalists described the speech as "political," "controversial" and even "fiery." Another characterized it as "caustic." A writer for Politico called it "unusually inflammatory." A legal analyst for CNN portrayed the speech as "ireful" and the speaker as an "infuriated dissenter." Not to be rhetorically outdone, a longtime journalist writing for Esquire asserted that Alito "went out and had a public nutty on Thursday." I'm not exactly sure what that means, but it doesn't sound good.

Had Alito really gone off the rails? And in a public speech? I decided to track down this putatively offensive address and see for myself, having come to expect a considerable dissonance between reports about a conservative event and the thing itself. As it turns out, this speech was no exception.

Alito's primary theme was the restrictions on constitutionally guaranteed freedoms—especially of religion, assembly and speech—that have intensified during the pandemic. These restrictions are policed not only by government agents but also by private corporations and individuals. While Alito's critics deny the reality of any such restrictions, the media's reaction to the speech was a case in point of the attempt to shut down reasonable discourse.

As for the speech itself, the delivery was tranquil—not surprising for anyone familiar with Alito's demeanor. Even the few moments of humor were served up straight deadpan. So the adjectives "fiery," "ireful" and "infuriated" are almost comically inappropriate. One may conclude that critics chose these words to stir up the opposition of people who will never take the time to watch or read the speech for themselves.

The misleading descriptions notwithstanding, the Justice's critics were even more disturbed over the speech's content. One example was the statement that "the pandemic has resulted in previously unimaginable restrictions on individual liberty." Alito emphasized that he was making no comment about the necessity or prudence of the restrictions, much less about the devastation wrought by the coronavirus. It is simply an "indisputable statement of fact" that the restrictions have been "severe, extensive and prolonged."

Samuel Alito
Associate Justice Samuel Alito poses for the official group photo at the US Supreme Court in Washington, DC on November 30, 2018. Mandel Ngan/AFP/Getty

Anyone who has lived in the U.S. in 2020 should find this statement uncontroversial. But even the more moderate critics seized on it. As CNN's legal analyst put it, "Alito's suggestion that government is infringing on Americans' freedoms echo [sic] the anti-mask, anti-restriction Trump talking points of the day." Apparently, if one believes the government's restrictions on individual liberty in 2020 are unprecedented in the U.S., one must be against masks and must have taken their ideas straight from Trump's tweets. No one, by the way, bothers to point out a time when the government has issued more "severe, extensive and prolonged" restrictions of individual liberties for U.S. citizens. We are simply supposed to be outraged that someone said it out loud.

To illustrate his point, Alito described a case that came before the High Court in July. After the first round of closures and lockdowns, casinos in Nevada were allowed to open at 50 percent capacity, which meant thousands of people could return to gambling. Yet Nevada continued to restrict worship gatherings to no more than 50 people, irrespective of the size of the building and the implementation of all recommended health measures. As Alito explained, the freedom to exercise religion and the right to assemble peaceably are enshrined in the Constitution's First Amendment. Although there is no corresponding "craps clause" or guaranteed right to gamble, these contingent rights took precedence over what should have been inviolable rights.

Regardless of what one thinks of these government impositions, they are by definition restrictions of individual freedoms, and they are unprecedented. I would have had a hard time believing it if someone told me last year that some states, for the sake of public health, would prohibit church gatherings of the healthy while allowing grocery shopping and mass protests, and the government, with the occasional aid of ordinary citizens, would threaten with fines and arrest those who violate the prohibitions.

Finally, what exercised the critics most were the Justice's comments about the freedom of speech. For example, Alito observed, "You can't say that marriage is a union between one man and one woman. Until very recently that's what the vast majority of Americans thought. Now it's considered bigotry." It is true that the shift is recent. Up until the 2012 presidential campaign, Barack Obama, Hillary Clinton and most current political champions of same-sex marriage opposed making it federal law.

The primary complaint seems to be that Alito conflated being labeled a bigot with the restriction of speech. It is true that one can physically say these words about marriage. Government officials have not forcibly stopped people from speaking heterodoxy. But Alito's point is that one speaks those words at increasing risk of being shut down. In many corporate and academic contexts, as well as in society at large, people actually do suffer penalties and forfeit opportunities for saying such things. In practice, to label someone a bigot is to silence reasonable conversation. Alito's critics know this, and their denials are disingenuous. They participate in the silencing. In fact, many of them have called Alito a bigot simply for pointing out that people are called bigots. The widespread canceling, demonetizing, censoring and firing of supposed bigots are indisputable instances of an attempt to curtail free speech and intimidate the populace into submission. Like it or not, what Alito said is true.

There was nothing inflammatory, outrageous or nutty about the substance of Alito's remarks or the manner in which they were delivered. Descriptions of the speech trade on the fact that the great majority of people who see the headlines and skim the articles about Alito's allegedly fiery, ireful, caustic address will not take the time to watch it and judge for themselves. Such apocalyptic terms preemptively close off discussion of some of today's most pressing issues. Sadly, this is yet more proof that words like "inflammatory" and "nutty" have come to signify "something I disagree with" or even "a fact that makes me uncomfortable," even when an honorable Supreme Court Justice says it. It does not make our society better.

Here is the real headline: the only thing nutty or caustic about Alito's speech is the collective, absurd reaction to it.

Keith D. Stanglin is Professor of Historical Theology at Austin Graduate School of Theology in Austin, Texas. His most recent book is After Arminius (Oxford, 2020).

The views expressed in this article are the writer's own.