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Speak Freely, Live Equally: The Power of Speech in Shaping Opportunity

March 24, 2025

10am-11:30am Orchard Suite, University Union (2nd Floor)

Anastasia Boden, Pacific Legal Foundation

In Bradwell v. Illinois (1872), the US Supreme Court famously denied that Myra Bradwell had a constitutional right to earn a living as an attorney. According to eight justices, the "paramount destiny and mission of women are to fulfill the noble and benign offices of wife and mother," not to enter a profession. Although the Court denied her the right to pursue a livelihood, she retained her right to free speech, which she used to start and manage the most successful legal periodical of her time, to draft and help pass various reforms that advanced equality before the law, and even to free Mary Todd Lincoln from unjust imprisonment in a sanitarium in Illinois. Myra's successful civil rights campaign underscores a perverse distinction in constitutional law: the purported distinction between the right to free speech and other, "unenumerated" constitutional rights like the right to earn a living. The First Amendment is given privileged treatment, with judges subjecting laws that infringe speech to strict judicial scrutiny. Most unenumerated rights, by contrast, are relegated to rational basis scrutiny.