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Justice Alito Talks Free Speech, Invokes Dance-Rock at Dedication of USC Law School

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Samuel Alito Official Portrait

U.S. Supreme Court Justice Samuel Alito

U.S. Supreme Court Justice Samuel Alito said Thursday at the dedication of the University of South Carolina’s new School of Law building that free speech is an “indispensible component of our system of self-government” — and cited the case of an Asian-American rock group to make his point.

In June, the Supreme Court unanimously upheld a federal court ruling that allowed the Portland, Oregon band, The Slants, to proceed with registration of their name as a federal trademark. The U.S. Patent and Trademark Office had earlier denied the band a trademark, deeming the name offensive. The Supreme Court ruled that the rejection violated the free speech rights of the band.

“The principle involved in the case could not be more important,” Alito said Thursday. “The Court was unanimous that the government could not deny trademark regulation or registration on the ground that the name of the band was offensive. The Court was perfectly clear on this. Every single member of the Court endorsed the proposition that speech cannot be regulated based on viewpoint expressed.”

The remarks came at the end of a 20-minute speech in which the justice — who also lauded the “Jeffersonian” ideals of the new law school architecture — addressed the values of “Thinking Like a Lawyer.”

Alito said free speech is a means of getting to the truth, both in the courtroom and in society, and that the extent of that freedom distinguishes the American system of government from all others.

“Our free speech law stands out,” he said. “It is different and I am proud of that. Our free speech cases do not tolerate government regulation based on the viewpoint that the speaker expresses. They are clear and strong on this point and do not give judges the authority to sanction discrimination against disfavored ideas.”

Alito also said that the system of laws in this country is based on the real world, “with all of its messiness and ambiguities and surprises.” Citing the Case or Controversy Clause of Article III of the United States Constitution, he said laws are based on facts rather than ideals.

“We cannot issue advisory opinions, unlike high courts in some other countries. We cannot review the constitutionality of an act of Congress, a statutory provision, immediately upon enactment, in the abstract. We have to wait and see if the case comes to us, presenting a grievance by a party who has actually been adversely affected by that provision.”

Any rules and theories “emerge only after they have been road-tested,” Alito said. “Rules are necessary and theories are helpful, but it is dangerous to derive one’s understanding of the world from a theory.”

The justice also addressed the strong role that legal precedent plays in the American system of jurisprudence. Previous court decisions are always given considerable weight, he said, even when the past decision may be incorrect.

“We know that the justices of the past, who rendered the old decisions, were fallible, and they were inevitably influenced by the attitudes of their time. Why should we be reluctant to acknowledge and correct their mistakes?”

The answer, he said, is humility.

“We know that we are fallible and are affected by the particular times in which we live, and it would be arrogant for us to think otherwise. We have to keep in mind the real possibility that the past decision that seems wrong to us may in fact be correct.”

At the same time, “we do not foreclose the possibility of overruling past precedents.,” he said. “Some decisions we come to recognize simply cannot be allowed to stand. There are times when the past must be thrown off.”

Planning for the $80 million School of Law building, which stands at the corner of Bull and Gervais Streets, began nearly 20 years ago. The three-story building has 17 classrooms and two dedicated courtrooms — as well as the 300-seat Karen J. Williams Court, which will serve as both a large classroom and auditorium. The law school complex also includes a law library, reading room, bookstore, café and student commons area.

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