In the Dobbs case, the U.S. Supreme Court overturned Roe, correctly holding that nothing in the U.S. Constitution established a right to kill an unborn child. This decision returned the question of abortion to the states. Local government regimes increasingly responded by enacting laws criminalizing expressions of conscience in public.
The First Amendment to the United States Constitution prohibits governmental infringement on free expression and the free exercise of religious conscience. U.S. Const. amend. I. The writers of the First Amendment did not say “make no law abridging freedom of speech, unless you seek to prohibit and punish a person’s conscience-based pro-life viewpoint on the topic of abortion.” Instead, the Framers of the First Amendment doubly protected such freedom of expression. Kennedy v. Bremerton School District, 142 S. Ct. 2407, 2421, 2426 (2022)
In Hill v. Colorado, 530 U.S. 703 (2000), the Supreme Court drifted away from its constitutional jurisprudence recognizing First Amendment freedoms as a fundamental liberty interest requiring the most rigorous scrutiny. Even though the government’s action prohibiting content-based speech in Hill substantially infringed on First Amendment protected liberty, Hill simply deemed it a permissible content-neutral time, place, and manner regulation satisfying intermediate scrutiny — wrongly failing to require appropriate justification by the government for its conduct. This was so even though the law regulated expression in a content-based way, in some of the most historically revered public places traditionally protected for speech. The nature of Hill’s erroneous First Amendment jurisprudence, its poor reasoning, the significance of post-Hill First Amendment cases, and lack of a legitimate reliance interest, all support the need for the U.S. Supreme Court to to overturn Hill.
When a court correctly decides a precedent, other courts ought to adhere to that precedent under the doctrine of stare decisis. See Dobbs v Jackson Women’s Health Org., 142 S.Ct. 2228, 2261-62 (2022) (recognizing valuable ends served by the doctrine) This doctrine substantially contributes to good governance by providing the predictability and consistency necessary for the citizenry to reliably function within the Rule of Law. Id. For example, the doctrine protects those acting in reliance on a past decision, fosters fair decision-making, and helps preserve integrity of the judicial process. Id.
Stare decisis must not apply though in cases like Roe, or Hill when the decision in question was not only knowingly incorrect but unconstitutional. The doctrine of stare decisis must not be used to immortalize a decision that is contrary to a true and correct reading of the Constitution. The doctrine “is not an inexorable command,” and it “is at its weakest when [the Court] interpret[s] the Constitution.” Dobbs, 142 S.Ct. at 2262 (quoting Pearson v Callahan, 555 U.S. 223, 233 (2009) and Agostini v. Felton, 521 U.S. 203, 235 (1997)).
Simply because the decision in Hill occurred, does not mean it must stand. Incorrect decisions require correction, not preservation. Dobbs, 142 S.Ct. at 2262 (recognizing a high value on having matters concerning constitutional liberty “settled right”). Just as the Supreme Court properly ceased to adhere to Roe’s error for the sake of “predictability” or “consistency” it ought to likewise do so on this issue as well. Being consistently and predictably unconstitutionally wrong is no virtue. “No interest which could be served by so rigid an adherence to stare decisis is superior to the demands of a system of justice based on a considered and a consistent application of the Constitution.” Graves v. Schmidlapp, 315 U.S. 657, 665 (1942). Correcting an erroneous constitutional ruling is an “appropriate circumstance” to “reconsider and, if necessary, overrule constitutional decisions.” Dobbs, 142 S.Ct. at 2262.
Unless the U.S. Supreme Court affirmatively acts to restore fundamental right status to First Amendment expression, Hill, as a practical matter, denudes any meaningful constitutional protection for expression or conscience as a limit on the exercise of government power.
The Court should, therefore, in an appropriate case, revisit Hill, and correct the error.
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