The biggest news this week is that the left has officially turned against the First Amendment and freedom of speech—and just in time for the Fourth of July!
If you’re on the right, it is not news that the left wants to shut us up. The only change is that this goal is being announced openly in the leading publications of the mainstream left, specifically in a long article in the New York Times warning about “How Conservatives Weaponized the First Amendment.” Weaponized. That’s right, they’re giving the First Amendment the same treatment they gave the Second. Does free speech seem as scary and dangerous as an AR-15 yet?
So what’s wrong with the First Amendment? It protects people the left doesn’t like. No, really, that’s the argument.
On the final day of the Supreme Court term last week, Justice Elena Kagan sounded an alarm. The court’s five conservative members, citing the First Amendment, had just dealt public [employees’] unions a devastating blow. The day before, the same majority had used the First Amendment to reject a California law requiring religiously oriented “crisis pregnancy centers” to provide women with information about abortion. Conservatives, said Justice Kagan, who is part of the court’s four-member liberal wing, were “weaponizing the First Amendment.”
The article laments that free speech arguments at the Supreme Court used to mostly protect speech by people on the left.
“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,” [Frederick Schauer, a law professor at the University of Virginia] said. “But the claim that speech was harmless or causally inert was never true, even if it has taken recent events to convince the left of that.”
So now—the horror!—”free-speech claims” are being used to protect Christians and corporations and people who don’t like being forced into unions, and how dare anyone stand up for those people.
The Times even went so far as to commission a study counting the number of times the Court has ruled in favor of “liberal speech” and “conservative speech.” This is a highly dubious exercise, since there is a good deal of subjectivity in deciding which speech is “liberal” and which is “conservative,” and the study is so vague about its criteria (and the resulting Times article even more so) that its assertions are meaningless. Warren Henry notes that a similar study—more about that in a moment—counts rulings upholding the imprisonment of anti-war activists during World War I as “anti-progressive,” despite the fact that these cases were prosecuted by the Progressive hero Woodrow Wilson.
Yet anyone on the right can venture a guess as to why the Court has seen more cases involving “conservative speech” in recent years and decided more frequently in favor of them. With the advent of crusades against “hate speech,” people on the right are more likely to be targets of attempts to suppress their speech.
The glib answer here would be to chalk this up as a generational difference between the old “liberals” who preened themselves on their dedication to free speech, and the authoritarian Political Correctness of younger “Progressives.” But the old liberals’ dedication to free speech was always a more pragmatic and instrumental than they liked to admit. You can see this in the complaints in the New York Times article from the very same old liberals who pioneered free-speech arguments in defense of left-leaning advocacy groups or anti-war political candidates, who are now appalled that these same arguments are being used on behalf of corporations and conservative political activists. Back in the day, old liberals like John F. Kennedy talked about how “freedom is indivisible,” so that in defending the freedom of one man, you are defending the freedom of all. Now the fact that freedom of speech protects everyone is considered a problem with First Amendment jurisprudence.
In short, many of the old liberals fought for free speech largely because they wanted to protect people like them from overbearing authorities. But now people like them are the overbearing authorities. Consider the recent Masterpiece Cakeshop case, which was decided based on the way members of the Colorado Civil Rights Commission spoke contemptuously of a baker’s Christian faith before imposing a fine on him. Now that the left holds power, they chafe at any restrictions on their authority.
Catherine MacKinnon states this view in its most strident and tendentious form: “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.” In this view, there are only two types of free speech defendants: radical socialists and bigots. The first deserve legal protection and the second don’t.
But there is also something else going on. As the left has gained more political power, it has championed regulations that have spread out like a fine net into every part of human life. But Margaret Thatcher also reminded us that freedom is indivisible, and she did so to destroy the “myth” that “you can have political freedom and economic slavery.” The more the government seeks to dictate all of our decisions—what kind of cakes we have to bake, what medical advice we can offer, who gets to negotiate with our employer on our behalf—the more they necessarily impinge on our freedom of speech. That is the left’s problem with First Amendment protections for people who they think should be regulated to keep them in line.
This is really what Elena Kagan is complaining about in her dissent in the Janus decision where she warns that the Court’s conservative justices are “weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.” What gives rise to these cases is the fact that the old “liberal” differentiation between economic freedom and intellectual freedom—the first of which could be violated without limit but the second of which had to be scrupulously respected—was an artificial one. In her conclusion, Justice Kagan actually does a pretty good job of making Mrs. Thatcher’s point for her.
Speech is everywhere—a part of every human activity (employment, health care, securities trading, you name it). For that reason, almost all economic and regulatory policy affects or touches speech…. The First Amendment was meant for better things.
When Kagan writes, “The First Amendment was meant for better things,” I can’t help hearing, “The First Amendment was meant for better people”—for good Progressives and not for the likes of you and me. But what she specifically means is that the First Amendment should be ignored when it impinges on anything having to do with commerce or capitalism—despite her own admission that all such activity involves freedom of speech.
The left is turning against the First Amendment because absolute respect for freedom of speech is not consistent with tearing down capitalism. This brings us to Georgetown University law professor Louis Michael Seidman, who laments, “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.” The New York Times piece is mostly just echoing the argument made by Seidman in a forthcoming law review article which asks, “Can Free Speech Be Progressive?” Seid answers “no,” and says, in effect, so much the worse for the First Amendment.
The most ominous part of Seidman’s article is not specifically about the First Amendment. It is his naked admission about the basic political priorities of Progressivism, which he sums up this way: “by ‘Progressivism,’ I mean the modern political stance favoring an activist government that strives to achieve the public good, including the correction of unjust distributions produced by the market and the dismantling of power hierarchies based on traits like race, nationality, gender, class, and sexual orientation.” Did you notice what is missing? Freedom is not included among the political values sought by the left. It is not one of the standards by which political outcomes are to be judged. No wonder they have given up the defense of freedom of speech and ceded it to the right.
Freedom was still nominally on the list of priorities for the old “liberals,” who still held to John Stuart Mill’s idea of the individual’s unquestioned sovereignty “over his own body and mind.” But as I have described elsewhere, this “liberal” paradise couldn’t last. The essence of Seidman’s article is his concern that the legal distinction between property rights and freedom of speech is breaking down, and breaking down in the direction of more freedom for both, rather than more government control of both. He is a little cagey about his own preferred outcome, but it is in the direction of more control, and he hints at some kind of Progressive paradise of centrally planned and optimized “redistribution of speech opportunities.” In other words, Progressives get to speak, and everybody else doesn’t.
It is inevitable, really, that the left would finally turn openly against freedom of speech, because the First Amendment is a weapon. It is a legal weapon that can be used by private citizens against government coercion. It is a weapon in the hands of the people against overbearing authority. But it is only a weapon because freedom is indivisible, and so long as the First Amendment exists, it is a threat to all other forms of domination and control.