Alito agreed, concluding that such speech — while unwelcome in the eyes of gay students and others — could hardly be seen to “pose a realistic threat of substantial disruption” and “is within a student’s First Amendment rights.” What one student considered hate speech, Alito argued, another could fairly consider free speech. He invalidated the code, pushing back against would-be academic censors seeking to outlaw politically incorrect speech.
In the wake of Morse, it is necessary to rethink Alito’s apparently principled position in Saxe, which this column noted favorably in the past. Alito’s double standard protects a religious kid’s undoubted right to tell a gay student he is going to Hell, but not another kid’s right to make a nonsensical statement linking Jesus with drug use. This solicitousness toward the religious right is unprincipled judicial activism.
The beauty of “judicial reasoning” is that it can define and protect the blessings of liberty in a constitutional society. But it can also be a cover for blatant hypocrisy.
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