My title may be exaggerated a tad, but not that much, for the point of Adam Liptak’s article (click on screenshot below) is that conservatives are starting to use the First Amendment to defend or buttress legal decisions that liberals don’t like, and therefore the First Amendment is outdated or should be reexamined. The title of the piece comes from Supreme Court Justice Elena Kagan, a liberal who decried her courts’ recent decisions against public unions and in favor of religious abortion “crisis centers” on freedom-of-speech grounds. Further, the Citizens United case, in which corporations were allowed unlimited spending on political campaigns, was also deemed by the Court to be a free speech issue. (Here I disagree on the grounds that corporations are not individuals.)
Liptak is a New York Times reporter whose beat is the US Supreme Court; he also writes the legal column “Sidebar” for the paper. Have a look at his piece.
Liptak is distraught that the free-speech issue, once used to defend liberal cases, is now being used to defend conservative cases. Some of his points (I use quotation marks for direct quotes):
- Free speech was once used to protect the powerless and dispossessed, as in civil rights cases or protests against the Vietnam war. Liptak, using other people to justify his words, says “some liberals now say that free speech disproportionately protects the powerful and the status quo.”
“When I was younger, I had more of the standard liberal view of civil liberties,” said Louis Michael Seidman, a law professor at Georgetown. “And I’ve gradually changed my mind about it. What I have come to see is that it’s a mistake to think of free speech as an effective means to accomplish a more just society.”
“To the contrary, free speech reinforces and amplifies injustice, Catharine A. MacKinnon, a law professor at the University of Michigan, wrote in “The Free Speech Century,” a collection of essays to be published this year.
“Once a defense of the powerless, the First Amendment over the last hundred years has mainly become a weapon of the powerful,” she wrote. “Legally, what was, toward the beginning of the 20th century, a shield for radicals, artists and activists, socialists and pacifists, the excluded and the dispossessed, has become a sword for authoritarians, racists and misogynists, Nazis and Klansmen, pornographers and corporations buying elections.”
- “A new analysis prepared for The New York Times found that the Supreme Court under Chief Justice John G. Roberts Jr. has been far more likely to embrace free-speech arguments concerning conservative speech than liberal speech. That is a sharp break from earlier eras. . . As a result, liberals who once championed expansive First Amendment rights are now uneasy about them.”
“The left was once not just on board but leading in supporting the broadest First Amendment protections,” said Floyd Abrams, a prominent First Amendment lawyer and a supporter of broad free-speech rights. “Now the progressive community is at least skeptical and sometimes distraught at the level of First Amendment protection which is being afforded in cases brought by litigants on the right.”
Here is an analysis of the data, showing that as courts became more conservative, the cases involving conservative speech have increased, the win rate hasn’t changed much, but the win rate for liberal speech cases has dropped. Well, what do you expect given that the Supremes are always ideological and now the Court is becoming increasingly (and to my mind, dangerously) conservative?
Seriously, “free speech reinforces and amplifies injustice”? It is used against the dispossessed? Excuse me, but we hear loudly and frequently from the dispossessed and minorities and the Left, especially in liberal newspapers like the New York Times and Washington Post, and in Control-Left publications like HuffPost.
The reason why free-speech considerations are increasingly used to buttress conservative decisions is, as I said, because the Supreme Court has always been politicized (as in the Burger and especially the Warren Courts), but now that conservatives are ascendant, they are using the same arguments to prop up their own ideologies. The problem is not with the First Amendment, or with free speech, but the fact that the country has become more conservative in recent years, and with it the justices on the Supreme Court.
In fact, as the article notes, Leftists and progressives like Ralph Nader used a free-speech defense to protect advertising and commercial “speech,” in a successful attempt to overturn state laws banning advertising or providing information about prescription drug prices. Now Nader and other say that they regret supporting that attempt, since such defenses are now being used (largely unsuccessfully) to attack cigarette-label warnings, prohibitions of giving alcohol content on beer cans, and so on.
What’s sauce for the goose is sauce for the gander. While you may disagree with the courts’ arguments, liberals used the First Amendment to get their agenda passed, but now that conservatives have learned from that tactic, liberals are now saying that free speech is overrated, or is used to buttress the powerful against the oppressed. And it’s ironic that a free press, in the form of Liptak’s article, is being used to make this point. Liberals don’t like the results, but again—it’s not the fault of the First Amendment, the best tool we have to protect our democracy—but the American public, who elected conservatives to Congress and the Presidency.
I’m not sure how I feel about the recent conservative decisions overturning the requirement for abortion-opposing health clinics to tell their patients about alternatives like abortion, although I tend to think that the decision about unions had some justification. In effect, it forced people to join public unions that represented their group, and to pay dues to those unions, even if those forced to join disagreed with the unions’ aims and tactics. One can make a case that that is forcing people to espouse a certain point of view when they don’t want to—a free speech issue. An alternative and reasonable solution is to allow people to opt out of such unions, but then to prohibit them from getting any of the benefits that the union negotiates for their members.
In that case, I have to agree with Samuel Alito’s statement in the union case judgment:
“Compelling individuals to mouth support for views they find objectionable violates that cardinal constitutional command, and in most contexts, any such effort would be universally condemned,” he wrote. “Suppose, for example, that the State of Illinois required all residents to sign a document expressing support for a particular set of positions on controversial public issues — say, the platform of one of the major political parties. No one, we trust, would seriously argue that the First Amendment permits this.”
Justice Kagan’s response—that everything involves speech and thus could be decided on the basis of speech law—is not convincing.
I’m sorry, but jettisoning the most powerful buttress to American democracy, and a bedrock of the moral and legal progress we’ve made in the last century, just because conservatives use it, too, is throwing out the baby with the bathwater. For if the First Amendment is deemed useless, what protection does anyone have against government censorship?
This article is part of the Times’s new emphasis on Control-Leftism, as instantiated by the opprobrium leveled against Bari Weiss by her fellow reporters. It’s sad to see the good gray Times go this route, but I think it is. I have another wonky article they just published, and may discuss it in my next post.
