1. The good doctor might not be qualified to distinguish between the two cherished and uniquely American individual liberties in the constitution but let’s see what Justice Holmes said about speech:

   “If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition. . . . [W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system, I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. (Holmes’s famous clear and present danger test for when to prohibit speech.)” Abrams v. United States, 250 U.S. 616 (1919)

   Speech under the constitution is more than an individual liberty because the marketplace of ideas is necessary for the survival of the republic. It is only through that free exchange of ideas that a minority can become a majority.

2. This is academic because it is not the content of speech or religion that is debated at present but here are some more legal distinctions between the two rights:

   Freedom of belief is absolute but freedom of practice is not because it would “make the professed doctrines of religious belief superior to the law of the land, and, in effect, to permit every citizen to become a law unto himself.” Reynolds v. United States, 98 U.S. 145 (1878, Morman polygamy case).

   By contrast, Sir William Blackstone wrote in 1760s Commentaries, “The liberty of the press is indeed essential to the nature of a free state: but this consists in laying no prior restraints upon publications, and not in freedom from censure for criminal matter when published.”

   Government has a heavy burden to stop speech and publication beforehand. What is the test for censure (prosecution) afterwards? Holmes applied the “clear and present danger test” (garmee) of an illegal act happening while in the Masses Case (1915) Judge Learned Hand applied the incitement test which required explicit words leading to the act.

   The umbrella man arrested for inciting the recent Minneapolis riots would fail under either test.

   • A. Lang Your comment is overly vague and mis-leading. If “law of the land” always takes precedence of religious freedom, there would be nothing stopping lawmakers from passing any law that restricts religious freedom, which is not the case.

     The court in Reynolds VS the United States cited the fact that the law in question was accepted common law throughout Western Europe and a foundation of society that existed prior to the religion in question.

3. gevaldig

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