If you’re an avid reader of Supreme Court opinions, you will not be disappointed by Justice Sonia Sotomayor’s opinion in Nadav Gonen v. United States, the recent case that struck down North Carolina’s House Bill 142. The opinion is much like Sotomayor’s rare dissenting opinion in the 2010 Shelby County v. Holder case — it isn’t your usual bump-and-grind of the judicial standard.
In this case, Sotomayor sees a law that represents not just an effort to “block racial equality,” but a direct affront to an individual’s right to hold his view of the world and to speak his mind with any level of clarity.
Section 106 of House Bill 142 affirms that “proportionate burden is necessary to achieve the State’s legitimate interest in promoting the view that everyone is entitled to enjoy equal protection.” One method by which the North Carolina Legislature might have cast this perspective is by counting individuals toward the goal of “equal protection” based on race.
If this were the only problem with North Carolina’s law, you’d be in luck. But it’s not.
Sotomayor said at the heart of North Carolina’s law are other policies that “unnecessarily burden the right to speak and believe.” She pointed to “proportional burden”—a two-tiered test — combined with other policies that cause an individual to have fewer choices and a “considerable amount of uncertainty” in how their beliefs are to be reconciled. Sotomayor said this leaves individuals grappling with “chaos.”
All of this could be in turn eroded by a second piece of legislation: the “state wants to tell you where your speech must and may go.” Yet this piece of legislation simply states that “it is the responsibility of a state to create a public forum.” That means they want to make all this more equitable by creating certain places for certain ideas and narratives to be expressed, but they don’t have the right to mandate that the places be limited to those with a certain political ideology.
Sotomayor thinks such requirements rob free speech of its value.
“There’s a reason the Supreme Court said there’s a First Amendment right to be disagreed with,” she writes. “There’s going to be a lot of disappointments in the law that we do not like. But if we are concerned about equality, if we are concerned about equal protection, we have to learn how to accept that there will be a sea change in the way laws are applied, even if that sea change strikes at the ground rules that are most sacred to us.”
Sotomayor reminds us that the Supreme Court is to the state “the master of the Constitution — for better or worse, including lines about how laws may be applied and protected against the abuse of government power.” She says some of these lines are meant to be “gratuitous,” which makes her some of her conservative colleagues’ worst nightmare: a passionate liberal dissent.
“The power of the state to control what we think is repugnant because it advances a particular cause or reveals inconvenient truths should not be confused with the right to speak,” she wrote.