Dissenting Opinions: How They’ve Shaped Our First Amendment Rights

Dissenting opinions play a vital role in our constitutional democracy, offering different viewpoints from those in the court majority. Sometimes dissenting opinions point out the errors of the majority’s reasoning. Consider perhaps the most famous dissenting opinion in American legal history: Justice John Marshall Harlan’s lone dissent in Plessy v. Ferguson (1896).  

The court majority in Plessy upheld a Louisiana law mandating separate railway accommodations based on race. The court upheld the law under the “separate but equal” doctrine. Justice Harlan countered:  

“But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful.” 

Eventually, the U.S. Supreme Court rejected the separate but equal doctrine in Brown v. Board of Education (1954), finding that segregation was unlawful and violated the equal protection clause of the 14th Amendment.  

Dissenting opinions, which occur at all levels of the court system, occur in all areas of the law. But the right to dissent is key to the First Amendment, as it protects unpopular opinions and perspectives. 

dis·sent | to differ in opinion from the decision of the majority 

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Types of judicial opinions:  

• Majority: An opinion in which a majority of justices or judges join. For example, on a Supreme Court of nine justices, five justices must sign on to an opinion for it be considered a majority opinion.  
• Plurality: The main opinion of the court but one which in which less than a majority sign on to it. For example, let’s say the court has three opinions and the split is 4-3-2. The four-justice opinion is a plurality opinion. A plurality opinion has less precedential value than a majority opinion.  
• Concurring: This is an opinion that agrees with the result of the majority opinion but may disagree with its reasoning or the signing justice wants to emphasize particular points of law.  
• Dissenting: An opinion that disagrees with the result of the majority opinion.  
• Per curiam: This is a Latin phrase that translates “for the court.” These are not signed by a particular justice or judge but represent the view of the court as a whole, often in resolving noncontroversial cases without an extended explanation.  

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Dissenting opinions disagree with the result of a court’s main or majority opinion.  

A court’s majority opinion becomes the law of the land, and the precedent that lower courts are supposed to follow. Even though a dissenting opinion does not set precedent, it can still be incredibly important. For one thing, a dissenting opinion may eventually become the law after a while, particularly when a dissenting opinion is so well written that, over time as society changes, it becomes the “right” answer.  

Consider Justice Harlan’s historic dissent in Plessy v. Ferguson. It took 58 years, but the court eventually adopted much of Harlan’s reasoning in ruling that segregation laws were unconstitutional. Thus, it was Harlan’s vision in his lone dissent that won out in the celebrated Brown v. Board of Education (1954) decision. 

Not all dissents later become the law of the land. But they can help sharpen the focus of majority opinions. Justice Ruth Bader Ginsburg wrote that she appreciated well-written dissenting opinions because they helped her improve her majority opinions.  

Discover 5 of the most prominent dissenting opinions in First Amendment cases decided by the Supreme Court 

These five dissenting opinions in First Amendment cases had significant influence on the law and society. 

1. Political dissent should be protected speech. — Justice Oliver Wendell Holmes in Abrams v. United States (1919) 

Several Russian immigrants were charged with violating the Sedition Act of 1918 — a federal law designed to suppress political dissent — by distributing pamphlets that urged workers to strike and revolt if the U.S. militarily intervened in Russia’s revolution. 

The court’s majority upheld the immigrants’ 20-year prison terms, reasoning that the clear plan of the pamphleteers was to foment distrust in the government and to paralyze the economy by urging workers to strike. Justice Oliver Wendell Holmes — joined by Justice Louis Brandeis — disagreed in what many have called “the Great Dissent.” 

“It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned,” Holmes wrote. He also said that even negative or unpopular ideas should be entered into the marketplace of ideas because “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” 

In his book “The Great Dissent,” author Thomas Healy says this dissenting opinion “changed the history of free speech in America.” It established that even political dissenters on the fringe have a right to freedom of speech. 

2. Students shouldn’t be forced to say the Pledge of Allegiance. — Justice Harlan Fiske Stone in Minersville School District v. Gobitis (1940) 

The Supreme Court upheld a Pennsylvania law that required public school students to stand, salute the flag and recite the Pledge of Allegiance. Students who disobeyed were expelled. Lillian and Billy Gobitis refused to comply because they were Jehovah’s Witnesses who believed saluting the flag was akin to worshipping an idol instead of God.  

The court’s majority ruled for the school district, reasoning that religious liberty must give way to political authority. But a lone voice of dissent, Justice Harlan Fiske Stone, warned that “the state seeks to coerce these children to express a sentiment which, as they interpret it, they do not entertain, and which violates their deepest religious convictions.” 

The Gobitis decision had the effect of labeling Jehovah’s Witnesses as traitors, and a wave of violence unfolded against them. The Supreme Court overruled Gobitis three years later in West Virginia State Board of Education v. Barnette (1943), invalidating a similar law requiring students to salute the flag. 

The court ruled in Barnette that public school officials could not compel student speech by forcing them to salute the flag. It was a tribute to the idea that the court can fix its own wrongs. 

3. People speaking publicly generally should be protected, not punished. — Justice Hugo Black in Feiner v. New York (1951) 

Syracuse University student Irving Feiner stood on a street corner in New York, urging Black Americans to stand up for their rights. Many in the crowd thought Feiner was a rabble-rouser who was advocating dangerous ideas. 

Instead of protecting Feiner, the police arrested him and charged him with disorderly conduct. The majority of the Supreme Court upheld his conviction, saying that police officers could reasonably think his speech was stirring up the audience and could lead to possible harm. But Justice Hugo Black wrote a fiery dissenting opinion: “In my judgment, today’s holding means that, as a practical matter, minority speakers can be silenced in any city,” he warned. 

As a result of the conviction, Feiner was expelled from the university. Decades later, the school repented. Feiner was eventually readmitted to Syracuse and graduated in 1984. He even spoke there as a guest lecturer in 2006. But today, partly as a legacy of Black’s dissent, minority voices can speak out without fear of government retribution. 

4. Political dissent should be protected in wartime, too. — Justice William O. Douglas in Dennis v. United States (1951) 

In this decision, the Supreme Court upheld the convictions of Eugene Dennis and 10 other members of the American Communist Party for violating the Smith Act, a law that criminalized advocating or teaching how to overthrow the U. S. government. 

The majority emphasized the threat of communism to the established order in the reasoning behind its ruling. 

Justice William O. Douglas’ dissent criticized the majority for upholding people’s convictions for their unpopular beliefs rather than for any concrete actions they had committed against the country. 

“Unless and until extreme and necessitous circumstances are shown, our aim should be to keep speech unfettered and to allow the processes of law to be invoked only when the provocateurs among us move from speech to action,” he concluded. 

In hindsight, the Dennis decision serves as another example of the government’s punishment of dissident speech in times of war or national emergency. But Douglas, an ardent free speech defender, offered a more protective view of free speech. 

5. Government employees should have free speech, too. — Justice David Souter in Garcetti v. Ceballos (2006) 

For many years, courts balanced public employees’ right to speak out on matters of public importance against their government employer’s interests. In 2006, the court created a new rule that if the public employee spoke in accordance with their official duties, then they had no First Amendment protection.  

Garcetti v. Ceballos involved assistant district attorney Richard Ceballos, who discovered that a search warrant affidavit in a pending criminal case contained perjured or untruthful law enforcement testimony. Ceballos wrote a memo to his supervisors, recommending that the criminal charges be dismissed.  

His supervisors were displeased by the memo and stripped Ceballos of supervisory duties over some other district attorneys and transferred him to a less desirable office location. Ceballos alleged in part that his supervisors retaliated against him for the views that he expressed in this memo.  

The Supreme Court ruled against him 5-4. The court explained that his memo was a form of government speech that he was supposed to write in his capacity as an assistant district attorney. The court reasoned that his memo was a form of official, job-duty speech and thus he could not assert a First Amendment claim.  

Justice David Souter was one of four justices who dissented. He wrote, “There is no question that public employees speaking on matters they are obliged to address would generally place a high value on a right to speak, as any responsible citizen would.” 

Garcetti is still the law today. It has limited the free speech rights of many public employees who have been “Garcettized.”  

David L. Hudson Jr. is a First Amendment fellow with Freedom Forum and an associate professor of law at Belmont University. He can be reached at [email protected].