NYT legal columnist: Let’s rethink the First Amendment now that it’s being used by conservatives

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First Amendment to defend or buttress legal decisions that liberals don’t like, and therefore the First Amendment is outdated or should be reexamined.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.

 

53 Comments

  1. Posted July 3, 2018 at 10:12 am | Permalink

    I don’t share the concern that The “free speech” doctrine is being used by conservatives. What I object to is the Supreme Court’s distortion of what the framers meant by free speech by declaring that money is free speech, therefore corporations may spend as much as they want to influence elections. See the Citizen’s United case.

    • Posted July 3, 2018 at 10:14 am | Permalink

      As I said in my post, I agree with your take on Citizens United.

      • Posted July 3, 2018 at 10:56 am | Permalink

        Though blogfen’s objection is on a different basis, yes? I, too, am suspicious of the notion that money = speech. But I don’t share your objection that individuals DNE corporations, as I don’t see anything in the first amendment stating i must only apply to individuals and not the speech of a corporation or other organized group.

        • Randall Schenck
          Posted July 3, 2018 at 11:52 am | Permalink

          The problem with your research is – there were no such thing as corporations at the time this amendment was ratified. I do not think there were any for several years yet. So how could a corporation be considered in this amendment? If you want to strictly follow the constitution then do so. And I would also be very suspect of anyone who believed money = free speech.

          • eric
            Posted July 3, 2018 at 9:23 pm | Permalink

            The problem with your research is – there were no such thing as corporations at the time this amendment was ratified.

            That will be news to the British East India Company, which was almost 200 years old at the time of the American Revolution…

            My limited understanding of the federalist papers leads me to agree with your sentiment that the founders were primarily concerned with the government cracking down on individual human citizens for their speech. But whether the lack of mention of corporate speech means they didn’t want to protect it, didn’t think it needed protection, didn’t think speech needed to be explicitly itemized by speaker type, or just made an oversight, they almost certainly knew about the concept of corporate speech and what the crown could to do corporations who spoke out against it.

  2. Randall Schenck
    Posted July 3, 2018 at 10:42 am | Permalink

    I would argue that free speech is being dragged into the legal question as an excuse for the decisions when it has no business there. This is true in many of these religious cases such as Hobby Lobby and many others. Just as the first amendment gives citizens full freedom to any religious belief they desire, including none, this does not include the right to throw out other laws in society that do not conform to your religion.
    The right to get the full use of medical insurance coverage is superior to some individual religious believe. The right to get full use of any laws should not be set aside by religious belief and this has nothing to do with your freedom of religion. If your kid is sick and by law requires medical attention you should not be able to stop it with religion.

    I will say this same confusion is used in campaign finance and many other areas. If law establishes how much or how little you can put into a political campaign or election you cannot interrupt this law by claiming free speech. It does not apply.

  3. Posted July 3, 2018 at 10:46 am | Permalink

    When even the ACLU no longer takes a stand for freedom of expression, are there any organizations on the left that remain principled?

  4. Historian
    Posted July 3, 2018 at 10:53 am | Permalink

    I have a couple of comments on this post. First, regarding people being compelled to join unions.

    “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.”

    Let’s be clear that the purpose of the Janus suit was to bust unions, despite what Janus himself had to say. In theory, there could be an arrangement that non-union members would be denied the benefits that the union negotiated. In practice, this would be logistically impossible. Also, how many non-union members would turn down union negotiated benefits such as higher wages or better working conditions? Very few is the answer. In the federal government, workers are not required to join the union. In my experience, the non-union members were essentially freeloaders, too cheap to pay the modest union dues. I never heard these people talking about freedom of speech. Despite what merits the freedom of speech argument may have, the Supreme Court decision was nothing more than a pretext to bust unions and once again trick workers into screwing themselves.

    My second comment deals with freedom of speech and the right of pregnancy centers not to advise clients of family planning options, such as abortion. For those who think that freedom of speech extends to the pregnancy centers, I ask them to ponder this. By denying women vital information about abortion, these religiously based institutions are contributing to the potential bad health and possible death of many women. As free speech purists, does it not weigh on your consciences that you are directly abetting the death of women? Who are the real murderers?

    • Randall Schenck
      Posted July 3, 2018 at 11:13 am | Permalink

      The Union issue is another example of where free speech first amendment does not apply. Before you establish a union at any work site the normal procedure is to have a vote. There is also usually a period of time for campaigning for and against. However, once the vote is taken and the vote is yes for a union how do you use free speech to say no. If that is the case you can back out of every vote taken. If people are allowed to work and not take part in the union, why did you have an election in the first place?

    • Heather Hastie
      Posted July 3, 2018 at 11:20 am | Permalink

      Re unions, that is pretty much the situation in NZ. No one has to join a union, but in many companies the wage increases etc negotiated by the union automatically goes to non-union staff too. It seriously pisses me off.

      I always joined the appropriate union and paid my fees, which were always less than $5 a week in my case, and the freeloaders annoyed me intensely. I was often the only one in the department who was a union member. I always tried to shame the others into joining, but it never worked.

      The union at the last place I worked eventually got smart and would negotiate a lump-sum payment as part of the agreement that went only to union members. It didn’t quite cover union fees since the previous agreement (obviously deliberately on the employer’s part), but it was always a nice bonus when it came.

      • Randall Schenck
        Posted July 3, 2018 at 11:30 am | Permalink

        How do they get out of joining the union in NZ. Is it the same as here (a free speech thing) or do they have some other legal reason to do this?

        • Heather Hastie
          Posted July 3, 2018 at 11:46 am | Permalink

          The law is that no one has to join. You get the job, and if you want to join, you opt in. No one is allowed to be hassled or treated better or worse based on union membership.

          There is only one exception. For university students, union membership is compulsory.

          In some jobs, it used to be compulsory to join, but the law was changed in the early 1980s. At the time, student unions managed to get themselves exempted from the law because they quite reasonably argued that no student would join because even a very small fee is a lot to most (NZ) students, they do a lot of good, and their political representation is on issues and not partisan.

          • Randall Schenck
            Posted July 3, 2018 at 11:58 am | Permalink

            So you are not sure why they have this choice. I would think it had to be something that went through the courts at some time. Do they not vote for union at the site in NZ? If they do, that should be the thing that determines the union’s existence and who is in it. (my opinion)

            • Heather Hastie
              Posted July 3, 2018 at 1:00 pm | Permalink

              I do know why they have the choice. As I said, the law was changed in the early 1980s to give everyone the choice. The law hasn’t been challenged in court as there are no grounds it could be challenged on. In the minds of a majority, the problem was before the law came in with compelling people to join an organization against their will.

              It was an election issue and the party that introduced the law campaigned on it. There have been left-wing governments multiple times since then and none have taken the opportunity to change the law. They know it would lose them votes.

              Our Supreme Court is seen by all as apolitical.

              • Randall Schenck
                Posted July 3, 2018 at 1:34 pm | Permalink

                Well, anyway I don’t see how unions continue to thrive or grow if it is strictly optional whether you join. And the ones who do join have no problem with the freeloaders. I want to be a citizen of the country with all the benefits but I don’t want to pay taxes. Thanks.

              • Heather Hastie
                Posted July 3, 2018 at 8:31 pm | Permalink

                I agree. I remember one time in particular about 30 years ago when the union got typists a 17% pay rise (which they deserved). The typist in my office who wasn’t a union member was quite happy to take the pay rise too. Everyone else in the building was a union member, and had gone on strike and lost wages for people like her, and she got by far the highest pay rise. No shame.

                Union membership did drop when the law came in, but it’s come back, and remained reasonably high, though not as high as before of course. Most people do still join the union. We’re a young enough and socially aware enough country to appreciate the value of unions. Also, most of our unions have a pretty good reputation.

    • Posted July 3, 2018 at 2:41 pm | Permalink

      Completely agree with your (and Randall’s) take on the union issue. If free speech is grounds for opting out of a union (and thereby paying dues), then it seems to be grounds for opting out of paying taxes to a government whose speech you don’t agree with. As Randall said, unions are established by a vote and then they either are or are not, like a government.

      • Randall Schenck
        Posted July 3, 2018 at 4:06 pm | Permalink

        Glad to have one plus. Why do I always think of McDonalds when I see your name.

        The free speech claim seems to be the fall back position for everything and the excuse for every decision. It has been twisted just like the freedom of religion part. If I can say religious freedom keeps me from baking cakes or cutting someone’s hair then some time it will allow my business to pay no taxes. That is not religious freedom, it’s a con, a lousy excuse to hide behind.

        • Posted July 3, 2018 at 8:50 pm | Permalink

          Yes, I get that a lot. I’m of no relation to Ray Kroc (the founder of McDonald’s as we know it), though I did con a free meal from a local McDonald’s once when I was about 16 by showing them my ID. It occurred to me years later how utterly silly the free meal was: if I was really a relation (I think I said I was a grandson), then I would have plenty of money to actually pay up for a meal, no?

    • nicky
      Posted July 4, 2018 at 12:39 am | Permalink

      Moreover, it is deceit (these pregnancy centers). There are other options.
      Is a second hand car dealer entitled to swindle his clients based on free speech?

      • Diane G
        Posted July 6, 2018 at 1:14 am | Permalink

        Good point, good analogy.

      • Posted July 12, 2018 at 3:17 pm | Permalink

        You are right. And I also suspect that these centers provide medical services without a license, and by employees lacking the needed credentials.

    • Posted July 12, 2018 at 3:26 pm | Permalink

      In my country, membership in unions was de facto mandatory until 1989, then became voluntary. Most employees find little if any use in unions, at least in the ones we have. I share this opinion and have never been a member of any union.

  5. Posted July 3, 2018 at 10:53 am | Permalink

    I agree that the definition of free speech and protected free speech has been stretched beyond reasonable limits.

  6. Ty Gardner
    Posted July 3, 2018 at 10:56 am | Permalink

    I’m not sure that I agree on the union decision. My understanding is that a previous decision separated funding for political activities (not mandated as part of dues) and those funds used for contract negotiations and grievances (mandated if employed in a union profession). I do not see how the union can negotiate a contact that applies only to union members, that would seem to be both more difficult during negotiation and during administration of the contract. It would also create two classes of employees, potentially creating a hostile workplace. Of course, excluding some employees from union fees (opt out) while others pay fees that allow for continued collective bargaining will also likely create a hostile workplace, with some paying the cost of negotiation and others freeloading. The only questions is, how fast will the unions die and how low will this take quality of life for workers.

  7. Christopher
    Posted July 3, 2018 at 11:04 am | Permalink

    That article has all the maturity of the “if you don’t play the game like I say then I’ll take my ball and go home” playground argument. We liberals have now become the petulant child running home to our mommies because tRump and the conservatives won’t play “fair” and let us win.

    • Heather Hastie
      Posted July 3, 2018 at 11:34 am | Permalink

      Exactly. The problem is that SCOTUS is a political animal. As long as USians vote for conservative presidents, conservative justices will be appointed.

      A big part of the problem is also an electoral system that:
      ● doesn’t allocate votes equally (e.g. Electoral College);
      ● allows gerrymandering;
      ● enables states to make voting more difficult for some people;
      ● allows money to enable a bigger voice for some people;
      ● doesn’t prevent interference in the process from outside the country and;
      ● in some places uses voting machines that are vulnerable to hacking and unable to be audited.

      • nicky
        Posted July 4, 2018 at 12:43 am | Permalink

        Fully agreed. And, very important, the lack of a bipartisan or independent body overseeing elections.

    • AC Harper
      Posted July 4, 2018 at 4:18 am | Permalink

      I guess that (in the broadest terms) the ‘progressives’ (centre left and centre right) have been in power throughout the developed world for the last couple of generations. Now it varies from place to place and issue to issue, but you could make a reasonable argument that the ‘progressive’ politics has reached the end of its success and a lurch to ‘reactionary’ politics is the natural consequence. See Trump, Brexit, Italian elections, Merkel’s struggles over immigration, and so on.

      I rather suspect that the ‘progressives’ have become so used to their attitudes being *the* prevailing attitudes that they cannot comprehend ‘the lurch’. People (of either stripe) would do well to ensure that the lurch isn’t pushed further towards a ‘reactionary’ extreme. Extremism limitation should be the aim, not throwing a ‘progressive’ tantrum.

  8. John Black
    Posted July 3, 2018 at 11:32 am | Permalink

    Only slightly related to Jerry’s post here, but: for the many of us greying liberals who fought for civil rights in the 60’s and women’s rights in the 70’s, and have opposed US military overreach all our lives… where do we go now? Progressivism is a disaster, and even our favorite journals (like the NYT) have plodded off into the social abyss.

    Where is the voice of reason now? I come here to WEIT for a dose of it. And a precious few other places… where do YOU go?

    • Randall Schenck
      Posted July 3, 2018 at 11:43 am | Permalink

      The people sir, the vote. If the outcome is wrong or bad it got that way by voting the wrong people in. Believe it or not, the people are the government. It may not look that way but it is.

      • Steven E
        Posted July 3, 2018 at 11:45 pm | Permalink

        Randall, that is the most ridiculous crock. Everyone realizes that the vote is irrelevant so long as the status quo political parties remain. You can’t vote them out because not enough people will support a new party to supplant one of the old, so if you want to vote your choices are garbage, worse garbage or a wasted vote. When progressives try to work within a party they get stonewalled or subverted.

        Change will only come with national collapse.

  9. Ken Kukec
    Posted July 3, 2018 at 11:35 am | Permalink

    As damn near a free-expression absolutist, I’m happy to make good-faith common cause with conservatives on free-speech issues. But we should never overlook what a truly rotten record the American rightwing has on free expression — from the two Red Scares, to the anti-obscenity bluenoses, to the jihads against radical political speech.

    About the only “free expression” the rightwing has ever championed as a matter of first principle pertains to the influx of unlimited fat-cat corporate dosh into political campaigns. Conservatives’ more-recent embrace of broad free-expression principles has mainly been about the kick they get from rightwing provocateurs sticking it to the Left — “triggering the Libs” or “melting the snowflakes” as the alt-right calls it.

    The foundational SCOTUS First Amendment decisions that guarantee free expression in the US as we know it today were all authored by justices firmly situated on the Left — from Louis Brandeis, to William O. Douglas and Hugo Black, to William Brennan and Thurgood Marshall. It’s this proud legacy that today’s Left should seek to uphold.

    • Posted July 4, 2018 at 11:45 am | Permalink

      I would love for some of the critics to actually address the principles used in these decisions, rather than speak vaguely.

      One thing I *do* admire about the US is the first amendment and its case law, so: one should take advantage, even if you are criticizing!

  10. Posted July 3, 2018 at 11:48 am | Permalink

    Specifically in Janus, it’s the lead of the wedge in this particular assault on unions. The real worrying point is the Mister Janus is a tool of other powers that funded the case and his real ignorance of the subject matter.

    And my point here is that in the case of free speech (or of one not joining in the union’s speech), the spirit of the matter is beside the ruling. Or c’est-à-dire, people want a free lunch, always, and it’s used against them.

    About minute 2 of the video:

    https://wgntv.com/2018/06/27/political-analyst-paul-lisnek-on-immigration-order-travel-ban-ruling-primary-election-results/

  11. Jon Gallant
    Posted July 3, 2018 at 12:01 pm | Permalink

    In her account of her disillusion with the Bolsheviks, Emma Goldman reports that she raised the question of freedom of expression with Lenin: Lenin responded “freedom is a bourgeois prejudice”.

    It may seem strange for newspapers and individuals described as “liberal” to slip into alignment with such illiberal views as Lenin’s, but it has been happening for a long time. Maybe it reflects an ambition by many bourgeois “liberals” to live down the first part of their species designation—to check their “bourgeois privilege” at the door, so to speak.

    • Posted July 3, 2018 at 3:11 pm | Permalink

      Lenin responded “freedom is a bourgeois prejudice”.

      Which is why Lenin’s cover of Me and Bobby McGee never made it up the charts.

      • Diane G
        Posted July 6, 2018 at 1:21 am | Permalink

        Ha!

  12. JonLynnHarvey
    Posted July 3, 2018 at 12:08 pm | Permalink

    One clearly has the “right to remain silent” not just in the sense of when arrested for a crime, but to not espouse views you find odious.
    As such, no one should be forced to sign a union pledge whose political principles one disagrees with.

  13. Ken Kukec
    Posted July 3, 2018 at 12:22 pm | Permalink

    From the NYT piece (quoting U.Va. law professor Frederick Schauer):

    “Because so many free-speech claims of the 1950s and 1960s involved anti-obscenity claims, or civil rights and anti-Vietnam War protests, it was easy for the left to sympathize with the speakers or believe that speech in general was harmless[.]”

    Therein lies the central irony of free expression. Those of us on the absolutist side of the question have never believed speech is harmless. To the contrary, most of us believe above all else in the power of words, written and spoken, to move nations, to unleash great social change. But we also believe that free expression is self-correcting, that good ideas will out-compete bad in a free ideational marketplace. So we act as though “words will never hurt me.”

    And beyond this, we know that the dangers of allowing one side to censor the other outweigh whatever damage bad speech might wreak. We know that there is no reliable rational way for society’s minders, as opposed its citizens themselves, to decide what does and does not constitute “good” speech. Quis custodiet ipsos custodes? — who will mind the minders, as Juvenal asked his early second-century fellow Romans.

    • mikeyc
      Posted July 3, 2018 at 12:46 pm | Permalink

      ^What he said

    • Graham
      Posted July 3, 2018 at 10:13 pm | Permalink

      I have to agree, too many people have bought into a meme that states:

      “The purpose of free speech is to promote Equality, if the speech does not promote Wquality then the person who said it is a Fascist and has NO rights.”

      The Foundation for Individual Rights in Education has also weighed in on this editorial, I’m linking to their commentary below.

      https://www.thefire.org/the-first-amendment-is-for-all-americans-regardless-of-their-politics/

    • Posted July 4, 2018 at 11:46 am | Permalink

      I explained my position at a CFI meeting once as being basically: yes, free speech has horrible consequences sometimes – I too have been bullied and harassed. But the *alternatives look to be worse*.

  14. Ken Kukec
    Posted July 3, 2018 at 1:02 pm | Permalink

    … the point of Adam Liptak’s article … 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.

    I dunno, Jerry; I’m not getting that from Liptak’s article at all. It seems purely descriptive, rather than prescriptive, to me, fairly setting out both sides of the issue, with balanced quotations from the Right and Left.

    Using the quote from Kagan may have been an unwise choice by some NYT headline writer looking for clicks, but I don’t see where Liptak himself staked out any type of overtly partisan position in his piece.

    • Bobo McGillicuddy
      Posted July 3, 2018 at 1:18 pm | Permalink

      Yes. It is untrue that he asks for the First Amendment to be reconsidered.

  15. Bobo McGillicuddy
    Posted July 3, 2018 at 1:17 pm | Permalink

    “Money = free speech” is the correct decision. Citizens United was correctly decided.

    To rule otherwise could be a major impingement on the way the press operates: Media corporations are owned by rich people and naturally tend to represent their interests. Unless you want to set a precedent that would allow the government regulating the press to ensure that they are not operating in the interests of their rich owners, then you should find that money is equivalent to speech under the constitution.

    The correct solution to campaign finance reform is a constitutional amendment that makes Citizens United obsolete by banning private political contributions and publicly financing elections.

    • Posted July 3, 2018 at 3:07 pm | Permalink

      The issue was not whether money = free speech, but rather whether a corporation = an entity with 1st Amendment rights.

      • Ken Kukec
        Posted July 4, 2018 at 6:26 am | Permalink

        Been a while since I read Citizens United, but, IIRC, it addressed both issues, among others.

        Corporations are creatures of statute. One may acknowledge that they have constitutional rights without it necessarily following that their constitutional rights are coextensive with the rights enjoyed by individual citizens. A corporation, for example, cannot claim a Fifth Amendment privilege against self-incrimination.

    • Posted July 4, 2018 at 11:49 am | Permalink

      This is the usual argument. It commits a fallacy of composition, IMO. An owner (or several owners) of a media corporation have rights *as individuals*. It does not follow from that that a social system created from them has the same rights.

      Of course, one mark of traditional conservatism is to deny that there are social systems at all. This is a metaphysical view, one which I think is false, but at least we can debate “in the right place” then.

  16. Torbjörn Larsson
    Posted July 3, 2018 at 2:37 pm | Permalink

    It is hard to understand if they are against free speech, which is a useful, human right,or against unlimited free speech unconstrained by other human rights or laws such as against hate speech.

    By the way, Jerry is often referring to certain parts of a work of philosopher Mills. I found it interesting that other people found other parts in the same text that they claim is in conflict with “absolutist” unlimited free speech:

    In truth, thinkers such as Mill were far from being libertarians and, what’s more, would never have embraced the borderline absolutist position of today’s free speech warriors.

    Based in what is called the “harm principle,” Mill argued for a “big government” approach to situations in which the exercise of liberty might result in harm to others or even to the individual practising it.

    In On Liberty, he argues that parents of poor moral fibre may have their children removed from the home, and calls for similar state intervention to stop the harms caused by gamblers, prostitutes and the drug addicts. Even more broadly, he decides that:

    “The uncultivated cannot be competent judges of cultivation. Those who most need to be made wiser and better, usually desire it least, and if they desire it, would be incapable of finding the way to it by their own lights.”

    In other words, the ignorant and immoral must not have unhindered freedom as they lack the judgement to exercise it responsibly.

    Like all rights, free speech has limits

    This is similar to the ideas that back Canada’s Charter of Rights and Freedoms. Section One describes the protected rights and freedoms of citizens as subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

    This “limitations clause” permits such things as hate propaganda legislation that makes certain kinds of speech illegal.

    [ https://theconversation.com/the-strange-origins-of-the-free-speech-warriors-97631 ]

    Be nice, be Canadian (or European)!?

    • Scott
      Posted July 3, 2018 at 4:54 pm | Permalink

      I think this article distorts some of Mill’s arguments:

      In On Liberty, Mill discusses specific situations in which the actions (not speech) of individuals may directly infringe on the liberties or well-being of others and argues that the state may regulate those actions. Such actions the state can regulate under this argument include the failure of parents to educate their children and the other activities the article mentions. Mill also argues that liberties can be restricted to certain people; for example those of “uncivilized” nations (I don’t think anyone would agree with this today), and those who are incapable of forming rational judgments, such as children (both examples in chapter 1). In Chapter 2 however, he is clear about why speech must be completely unhindered:

      “We have now recognized the necessity to the mental well-being of mankind (on which all their other well-being depends) of freedom of opinion, and freedom of the expression of opinion, on four distinct grounds; which we will now briefly recapitulate.
      First, if any opinion is compelled to silence, that opinion may, for aught we can certainly know, be true. To deny this is to assume our own infallibility.
      Secondly, though the silenced opinion be an error, it may, and very commonly does, contain a portion of truth; and since the general or prevailing opinion on any subject is rarely or never the whole truth, it is only by the collision of adverse opinions, that the remainder of the truth has any chance of being supplied.
      Thirdly, even if the received opinion be not only true, but the whole truth; unless it is suffered to be, and actually is, vigorously and earnestly contested, it will, by most of those who receive it, be held in the manner of a prejudice, with little comprehension or feeling of its rational grounds. And not only this, but, fourthly, the meaning of the doctrine itself will be in danger of being lost, or enfeebled, and deprived of its vital effect on the character and conduct: the dogma becoming a mere formal profession, inefficacious for good, but cumbering the ground, and preventing the growth of any real and heartfelt conviction, from reason or personal experience.”

      In addition, the quote the article claims is from On Liberty and uses to support the idea that Mills supported limiting the freedoms of the “uncultivated” appears to be from a different work (Principals of Political Economy), and to be taken grossly out of context. The original context makes clear that Mill is discussing the ability of a consumer to judge the value of public goods that enhance human character, such as education, and justifying the use of government to regulate those goods in the economy. I can’t copy the quote out of google books, but if you search the quote in google books, it is possible to find it in context.

  17. Posted July 3, 2018 at 3:04 pm | Permalink

    The commissioned study that produced those pretty graphs is an atrocious instance of cargo-cult statistical analysis. In short, they kept churning the numbers until they achieved a result that vaguely supported their a priori conclusion. When their data showed either no discernible trends (a frequent occurrence) — or even worse, when it revealed the present court’s four so-called ‘liberal’ justices to be among the very worst all-time in defending free speech — they just kept dinking with the data.

    Also, with so much turnover among justices, siloing the data by chief justices seems arbitrary.


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