According to a front page New York Times news (not opinion) article by Adam Liptak (“Weaponizing the First Amendment: How Free Speech Became a Conservative Cudgel“), we must adopt a stance of skepticism toward all this talk of free speech, if we wish to be sophisticated and sensitive, as all good Times readers aspire to be. Free speech? So passé. Only conservatives care about free speech anymore.
That’s monumental news–the most influential newspaper in the world, the standard bearer of the Establishment, announcing that free speech is so, like, over.
Free speech is one of my hobby horses, although I don’t talk about it much on this blog. In keeping with my decision to put more content on my blog and less on Twitter and Facebook, I’m going to respond to the Times article here. And my, is there a lot to say about it.
The court’s five conservative members, citing the First Amendment, had just dealt public 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.”
That’s a disquieting thing for a Supreme Court justice to say. Taking a hard line on the First Amendment–the same hard line that has been traditional among liberals–is not to “weaponize” it, as if fundamental principles of the American system were suddenly dangerous weapons, ripe for abuse. The court’s progressives believe that a religious pregnancy counseling service is giving medical advice, so it should cover all options, and that includes abortion. But pregnancy advice is not merely medical; it is ethical, religious, political, psychiatric, and deeply personal. Such advice (which, coming from a Christian organization, might include strong pleas not to get an abortion) does not necessarily constitute medical advice at all.
It’s pretty damn obvious that requiring religious organizations to share information about abortion, a practice those organizations sincerely consider to be murder, abridges not just their freedom of speech, but also their freedom to practice their religion according to their own conscience. The majority, in their wisdom, agreed with me.
The two decisions were the latest in a stunning run of victories for a conservative agenda that has increasingly been built on the foundation of free speech. Conservative groups, borrowing and building on arguments developed by liberals, have used the First Amendment to justify unlimited campaign spending, discrimination against gay couples and attacks on the regulation of tobacco, pharmaceuticals and guns. …
There you have it. If certain recent conservative victories were “built on the foundation of free speech,” then apparently the problem must be with free speech; it couldn’t possibly be because left-wing lawmakers are increasingly wanting to impose their viewpoints on the populace by law. As absurd as it sounds, the Times article really does advance the view that, since those conservative victories are rooted in free speech, there must be something wrong with traditional free speech absolutism.
The article approvingly quotes a Cato Institute lawyer who rightly labels the Court’s position, also, as libertarian–mind you, we’re talking about a position which is now avowedly the conservative one and which used to be the liberal one:
“The libertarian position has become dominant on the right on First Amendment issues,” said Ilya Shapiro, a lawyer with the Cato Institute. “It simply means that we should be skeptical of government attempts to regulate speech. That used to be an uncontroversial and nonideological point. What’s now being called the libertarian position on speech was in the 1960s the liberal position on speech.”
Maybe it would be more appropriate to say that, for the last 50 years or so, a free speech absolutist position has been uncontroversial and nonideological, one of the areas where Democrats and Republicans could often (not always) agree. But that seems to be changing. The interesting thing about the Times article is that it says that the Republicans, or conservatives, are making free speech into a controversial issue. That doesn’t hold water, though. If Republicans are simply standing by the free speech absolutism that characterized mainstream thought on both sides of the aisle for a couple of generations, then when people like Kagan find such absolutism to be a “weaponizing” of the First Amendment, they are the ones who are making free speech ideological.
But let’s be precise. Free speech always was ideological; it is part of the American civil religion. But the left’s commitment to its own ideological “religion” seems to be getting the upper hand.
And an increasingly conservative judiciary has been more than a little receptive to this [libertarian] argument. 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.
Again, if, rather suddenly, many more conservative-joined majority decisions are based on free speech rights, that does not necessarily mean that the “sharp break” was due to an unusual, newly radicalized conservative jurisprudence. It could be just as well understood as a reaction to a spate of speech-squelching lawmaking such as the California law forcing Christian “crisis pregnancy centers” to advertise abortion options. So why suppose that it is the conservatives who have made a “sharp break”? Ironically, the next thing the Times says is that it is thinkers on the left who have, strikingly, changed their minds about free speech:
“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.”
Many on the left have traded an absolutist commitment to free speech for one sensitive to the harms it can inflict.
Take pornography and street protests. Liberals were once largely united in fighting to protect sexually explicit materials from government censorship. Now many on the left see pornography as an assault on women’s rights.
In 1977, many liberals supported the right of the American Nazi Party to march among Holocaust survivors in Skokie, Ill. Far fewer supported the free-speech rights of the white nationalists who marched last year in Charlottesville, Va.
This traditional support of free speech, by the way, has been perhaps the single strongest point of agreement between libertarianism in particular and progressivism. But apparently no longer. And so, just as progressives sometimes say that libertarianism is “naïve,” now, all of a sudden, the Times can approvingly quote a law professor saying that traditional free speech absolutism is “naïve”:
There was a certain naïveté in how liberals used to approach free speech, said Frederick Schauer, a law professor at the University of Virginia.
“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,” he 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. The question, then, is why the left ever believed otherwise.”
But this is, surely, a paradoxical thing to say. How can it be naïve to be a free speech absolutist, if that jurisprudence held sway for generations? After all, plainly, many free speech rules and policies were implemented. Just as plainly, generations of the most brilliant legal minds were free speech absolutists. It was and remains the Constitutional policy of the nation, as evidenced by the fact that the Supremes unanimously rejected hate speech laws again last year. But Prof. Schauer is pleased to call this policy “naïve” because that is how the snooty law professors who know better than the rest of us prefer to persuade the readers of the Times. All he really means, of course, is that he and his fellow snooty professors now take the cool and edgy position, that of the clearly more enlightened Europeans, that free speech is not “all that,” after all.
The article next introduces some just shoddy academic theorizing, in an attempt to justify speech control and censorship:
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.”
These are strikingly bold and broad statements. You’d expect a pundit to be making them rather than college professors. It’s a mistake to think that free speech contributes to a more just society? Really? It’s a “weapon of the powerful”?
I’ll get back to the weaponizing thing in a moment, but I’d like to point out that the Times is presenting these two campus radicals as liberals. That’s ridiculous. They are both theorists of the far left, purveyors of so-called critical legal studies; MacKinnon considers herself a “post-Marxist.” Such people are leftists and not liberals.
Besides, the notion that people who attack American traditions of free speech and First Amendment are liberal, of all things, is patently absurd. If you are so skeptical of free speech absolutism, then you’re not a liberal for that reason alone: what is more essential to American liberalism than strong commitment to free speech?
Now let me briefly discuss this notion that free speech is a “weapon of the powerful.” To be sure, the powerful have free speech rights, and like it or not, their power gives them the ability to exercise those rights more broadly and effectively than the weak. Welcome to earth; that’s nothing new, it will never change, and it becomes much, much worse whenever a radical leftist regime takes over. The obvious fact the powerful enjoy free speech rights, however, does not establish that free speech is not also a deeply important right of the weak. It is, after all, the rights of minorities and of the disempowered that most need protection by the law, considering that the powerful can usually take care of themselves.
There’s a striking irony in the article’s own examples. They all, with the sole exception of Citizens United, feature the rights of the ordinary, weak citizen protected from the depredations of some of the most powerful governments on earth. Don’t believe me?
Relatively weak religious organizations (the National Institute of Family and Life Advocates’ total national expenditures for 2009: $759,259) came under attack by the enormously powerful government of California; it was the First Amendment, as interpreted by the SCOTUS majority, that protected their freedom of speech and religion. Nazis and Klansmen are surely some of the most hated and disempowered people in the country at present (and yay for that); like it or not, equality before the law means they have the same speech rights as more decent people. Principled laborers, just regular people, who do not want to support the Democratic principles of their company’s unions, were supported against organized union power (and the Democratic government power enmeshed with it). And pornography? Well, to be sure, pornographers can be powerful, but only a very few of them. Most of those who produce and consume porn are not particularly rich or powerful. They’re just horny little guys with rights. The free speech rights of the rich and powerful are, by contrast, well protected.
In the great First Amendment cases in the middle of the 20th century, few conservatives spoke up for the protection of political dissenters, including communists and civil rights leaders, comedians using vulgar language on the airwaves or artists exploring sexuality in novels and on film.
In 1971, Robert H. Bork, then a prominent conservative law professor and later a federal judge and Supreme Court nominee, wrote that the First Amendment should be interpreted narrowly in a law-review article that remains one of the most-cited of all time.
“Constitutional protection should be accorded only to speech that is explicitly political,” he wrote. “There is no basis for judicial intervention to protect any other form of expression, be it scientific, literary or that variety of expression we call obscene or pornographic.”
Yes, the conservatives of fifty years ago were awful on First Amendment rights, and a stalwart of that brand was rejected Supreme Court nominee Robert Bork. Bork’s principle, that the First Amendment protects only political speech and not also creative works, was awful and repressive, if refreshingly honest. Bork was the sort of jurist only an arch-conservative could love. So it is amazing that a Times reporter would have the temerity to mention Bork in the context of this article, considering just how loathed he was by the liberals of yesteryear. It’s just extraordinary that Bork’s principle, which was no doubt considered grotesque by Times readers in the 80s and 90s, might be quoted approvingly in this context and without any comment on Bork’s famous history.
I won’t quote the entire section, but the article argues that Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1975) protected “commercial speech” (such as advertising), and that, though liberals helped shape this decision, it opened up a dangerous Pandora’s box of uncensored corporations:
That trend has continued, with businesses mounting First Amendment challenges to gun control laws, securities regulations, country-of-origin labels, graphic cigarette warnings and limits on off-label drug marketing.
Liberals also played a key role in creating modern campaign finance law in Buckley v. Valeo, the 1976 decision that struck down limits on political spending by individuals and was the basis for [the deeply-hated] Citizens United, the 2010 decision that did away with similar limits for corporations and unions.
So, to be sure, the law has protected the rich and powerful. As well it should. They do have rights that, like it or not, the law is obligated to protect.
To Professor Seidman [quoted above as having outgrown commitment to free speech], cases like these were part of what he describes as a right-wing takeover of the First Amendment since the liberal victories in the years Chief Justice Earl Warren led the Supreme Court.
“With the receding of Warren court liberalism, free-speech law took a sharp right turn,” Professor Seidman wrote in a new article to be published in the Columbia Law Review. “Instead of providing a shield for the powerless, the First Amendment became a sword used by people at the apex of the American hierarchy of power. Among its victims: proponents of campaign finance reform, opponents of cigarette addiction, the L.B.G.T.Q. community, labor unions, animal rights advocates, environmentalists, targets of hate speech and abortion providers.”
The title of the article asked, “Can Free Speech Be Progressive?”
“The answer,” the article said, “is no.”
That question and answer–res ipsa loquitur! It sounds like an unfair criticism of the left that conservative culture warriors might have made in the 90s. But here is someone presented as an educated liberal who has arrived at an enlightened, cutting-edge view and worthy of special mention in the Times.
I didn’t have time to read Seidman’s paper all the way through, but I had a look; it argues that the First Amendment is used as a “sword” by “people at the apex of the American hierarchy of power.” Free speech, he argues, is all right to the extent that it “can advance progressive goals.” The problem is that the First Amendment can also undermine those same goals (even if correctly interpreted, apparently). As an argument against free speech absolutism, this is stunning. This writer, this law professor, appears to think it would be adequate grounds for an attack or defense of freedom of speech that the speech advanced or undermined progressive goals–as if there really were no more to it than that. “Just ask yourself,” I imagine him saying, “is the principle convenient for our ideology?” This is clearly unscholarly and utterly risible. I can only hope that I have misunderstood the article. To me, it really did read as a parody of a party hack who has decided to try to write a law review paper. Decide for yourself. But to go on with the Times article:
The right turn has been even more pronounced under Chief Justice Roberts.
The Supreme Court has agreed to hear a larger share of First Amendment cases concerning conservative speech than earlier courts had, according to the study prepared for The Times. And it has ruled in favor of conservative speech at a higher rate than liberal speech as compared to earlier courts.
Has the Roberts court ruled more in favor of “conservative speech”? Maybe, maybe not; but surely “conservative speech” and “liberal speech” alike deserve protection. That much, I would have thought, is absolutely obvious. Yet the Times writer seems not to think so, and in this he follows Seidman, who (it seems) confuses partisanship for scholarship.
Suppose it’s true that the Supremes have recently protected conservative speech more than progressive speech. That could be due to the random patterns in the data; the sample sizes (of Supreme Court free speech cases) are surely too small to show statistical significance. It could also be, once again, because conservative speech has come under attack.
But even if the Supremes have recently been unfairly favoring conservative speech, even if they have given conservatives prerogatives not given to progressives, it still does not follow, and it obviously does not follow–an inference the article writer didn’t notice he was making–that, somehow, free speech absolutism is now suddenly only a “conservative” position. Our journalist draws the inference anyway:
The court led by Chief Justice Earl Warren from 1953 to 1969 was almost exclusively concerned with cases concerning liberal speech. Of its 60 free-expression cases, only five, or about 8 percent, challenged the suppression of conservative speech.
The proportion of challenges to restrictions on conservative speech has steadily increased. It rose to 22 percent in the court led by Chief Justice Warren E. Burger from 1969 to 1986; to 42 percent in the court led by Chief Justice William H. Rehnquist from 1986 to 2005; and to 65 percent in the Roberts court.
Even putting aside my earlier points, this argument is bizarre. Cases protecting conservative speech have risen, from 1969 until today, from 22%, to 42%, to 65% today. The latter number is supposed to establish that freedom of speech is now a “conservative” issue? Consider that in 1969, the number was 22%. Would it have been reasonable, at that time, to conclude that conservatives shouldn’t shouldn’t have cared at all about free speech, that they were justified in being soft on free speech rights? That’s absurd.
Speaking as a former academic–a teacher of logic and critical thinking as well as philosophy of law–I have to say the quality of argumentation here is just depressing. Refuting this sort of thing isn’t even fun. And this is the New York frickin’ Times. It’s impossible to believe that even Justice Kagan would support the partisan hackery on display in the Times article and the law review article.
Indeed, the Supremes are more interesting. You gotta love Supreme Court opinions; they’re often well argued, even if they’re wrong, and they’re so earnest (as they should be!):
On Wednesday, in announcing the decision on public unions, Justice Samuel A. Alito Jr. said the court was applying settled and neutral First Amendment principles to protect workers from being forced to say things at odds with their beliefs. He suggested that the decision on public unions should have been unanimous.
“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.”
Alito’s argument makes a great deal of sense to me, for what it’s worth. That’s a cogent analogical argument. To be sure, it’s just an outline of an argument; see the opinion for the details.
In response, Justice Kagan said the court’s conservatives had found a dangerous tool, “turning the First Amendment into a sword.” The United States, she said, should brace itself.
“Speech is everywhere — a part of every human activity (employment, health care, securities trading, you name it),” she wrote. “For that reason, almost all economic and regulatory policy affects or touches speech. So the majority’s road runs long. And at every stop are black-robed rulers overriding citizens’ choices.”
Speech is everywhere, Kagan rightly observes, and with a few traditional exceptions, every bit of it is protected by the First Amendment. The First Amendment’s influence does indeed run long, and so it should.
That final sentence, though–well, it’s preposterous. “Black-robed rulers” are doing what fearsome thing? By God, they’re “overriding citizens’ choices”! How dare they! But those “choices” are the laws and regulations passed by powerful government officials, i.e., they are the exercise of government power to censor or even–as in the case of the pregnancy centers–to compel speech. Good God, these black-robed rulers are curtailing the exercise of government power! Somebody stop them!
Anyway, that’s the article. It’s no big surprise to me that the Times has come out against free speech absolutism, declaring it to be a conservative position, something good progressives ought to resist. But it’s dismaying to see it there in black and white. Our world has changed.
By the way, there is almost no mention of hate speech in the article. This is probably it’s harder to make the legal case for restrictions on hate speech. The Supreme Court agreed just last year–unanimously–that hate speech is protected, that “ideas that offend” are protected by the First Amendment. You gotta love old liberals. But since the left, especially the young left, is becoming increasingly radical on the issue, I’m still quite apprehensive. After all, the Times has all but declared censorship and compelled speech to be progressive.
So I fully expect there to be growing calls for laws against hate speech in the United States. Support on the American left for such laws is already huge. According to a Cato Institute survey, while “just” 40% of Americans favor banning hate speech–that’s actually a lot considering we’re talking about doing away with the First Amendment–fully 52% of Democrats (i.e., most of them) support such laws. The number goes up to 61% of Democrats, if we specify that the laws protect black Americans against hate speech. Maybe more troubling is that 66% of Democrats believe hate speech is “violent”; if you believe that, then of course it’s a short step to conclude that speech should be banned (as we ban other forms of violence). Interestingly, Cato also asked for Americans’ views on the relevant constitutional question; it turns out that 56% of Americans believe that banning hate speech is consistent with the First Amendment. Good thing they aren’t on the Supreme Court.
Free speech on campus has increasingly come under attack recently. One of the most telling numbers from the Cato survey was that 68% of students support a confidential “bias reporting system,” i.e., they complacently imagine that it’s a good idea that there be campus speech monitors, assisted by student informants. Almost as stunning is the fact that 48% of all Americans support such a totalitarian system as well. That’s incredibly depressing.
Even if the Supremes remain free speech absolutists for another generation, the left’s intensified attack on free speech is deeply consequential. The next presidents might very well include socialists who replace Ginsberg, Breyer, Thomas, and Alito with radical free speech skeptics. It’s easy to imagine Kagan and Sotomayor moving more and more in the direction of free speech skepticism.
Besides, not everything depends on the Court. Formerly mainstream Democrats are showing themselves to be increasingly willing to take extreme action. It’s not that hard to imagine an independent California with hate speech laws stronger than any in Europe.
Due to its central role in protecting popular sovereignty in a republic, free speech is as important as it gets. The fact that the left is repudiating its former free speech absolutism is much more important than its decision to push for gay marriage. It’s probably more important even than immigration or gun control. It’s fundamental; it goes to the root of our system.
Free speech skepticism could easily become de rigueur on the left, as gay marriage rights have become. That is actually what I would expect, because if there is one thing that animates progressives today, it is contempt, even utter hatred, for anything they perceive as racist, sexist, homophobic, or anti-immigrant. So powerful is this animus that “reasonable” restrictions of hate speech can be easily sold to them as just good sense. To make matters worse, progressive judgment about what is bigoted in these ways is sometimes inaccurate. “Racist” and “sexist,” often used as cudgels in debate, would be “weaponized” indeed by hate speech laws.
So what’s a free speech absolutist to do? Well, if you support free speech, push back as effectively as you can when you see your friends and acquaintances moving in the direction of free speech skepticism. This is still a battle for hearts and minds. The Supreme Court frequently follows popular opinion, and there’s sadly no reason to think that a future Court might not dismantle many current First Amendment protections.
Learn the arguments; the case for free speech is very strong. There is no intellectually respectable case to be made for censorship. Even from the point of view of cost-benefit analysis, the benefits of tolerating “hate speech” and eschewing compelled speech are substantial, and the downsides are minimal; the risks of censorship and compelled speech are enormous (totalitarianism, the decline of free inquiry). It is, in short, obscene to treat free speech as a mere “tool” that is “weaponized,” when censorship and compelled speech throughout history have been very real weapons that have shored up authoritarian and totalitarian regimes.