The New York Time’s makes the hysterical claim that Conservatives Have Weaponized the First Amendment. How can a fundamental human right enshrined by the UN become a weapon?
The [US supreme] court’s five conservative members, citing the First Amendment, had just dealt public unions a devastating blow.
The decision referred to here is one in which non-union members were being forced to pay unions for negotiating contracts, on the basis that the non-members were benefiting from the negotiations. The plaintiffs argued that they were being forced to support union activism. This is a pretty clear case of a law that violates freedom of association. If I want to work in my chosen industry, I must financially support a group that I don’t want to associate with.
Many professions (e.g. doctors, lawyers, engineers) have similar requirements of membership to practice. The court has to weigh the public good (e.g. safety) against the rights of the individual to associate with (or without) who they want. If a union was doing more than collective bargaining, and was insuring the competence of their membership where a lack of it could lead to danger to the public, they would have a case.
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.
In this case, the California law was compelling speech. If, rather than compelling these centers to provide information about abortion, California had merely compelled them to honestly advertise the fact that they were against abortion, perhaps the law would have held up.
Conservatives, said Justice Kagan, who is part of the court’s four-member liberal wing, were “weaponizing the First Amendment.”
Seems like mere rhetoric to me. How were their decisions unjust? I suppose to know, one must read the decision and the dissent.
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 discrimination against gay couples.
In this case, the court decided to uphold the right of a baker to decide who they would create a product for. This seems reasonable, since the baker has a right to freedom of association. If a baker doesn’t want to work with you, find one who does. If a corporation is discriminating, this may be a real problem, since they may have the ability to prevent others from entering into competition to offer the same services. Such anti-competitive tactics should be dealt with by the courts.
The Citizens United campaign finance case was decided on free-speech grounds, with the five-justice conservative majority ruling that the First Amendment protects unlimited campaign spending by corporations. The government, the majority said, has no business regulating political speech.
I agree this is a problem. Corporations should not be allowed to donate to political campaigns. All donations should be from individuals and publicly disclosed. It is incumbent on the US congress to enact such a law.
“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.”
It is the liberal position. The establishment Democrats and the so called progressives are no longer liberals. The Overton window has shifted so far to the authoritarian left that centrist liberals are now called ‘alt-right’ by the mainstream media.
And an increasingly conservative judiciary has been more than a little receptive to this 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.
Could this be because conservatives are now the ones who are having their free speech rights infringed?
As a result, liberals who once championed expansive First Amendment rights are now uneasy about them.
Supporting universal human rights should not be a fair weather activity. Liberals used to know this. See my post Will the ACLU Part Ways with 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.”
Just as the right were distraught by the protections it afforded the left.
Many on the left have traded an absolutist commitment to free speech for one sensitive to the harms it can inflict.
You can’t put control of what is and isn’t free speech in the hands of the government without destroying the right to free speech.
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.
Communist Antifa continues to shut down peaceful street protests with violent tactics. Preventing women from voluntarily participating in the porn industry seems like 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.
Suppressing opinions you disagree with makes them stronger.
“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,” said Frederick Schauer. “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.”
It’s easy to rationalize your own views as harmless.
Some liberals now say that free speech disproportionately protects the powerful and the status quo.
What? This sounds insane.
“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.”
It’s more a means of preventing a less 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.
Seems like bullshit to me. One person’s justice is another’s injustice. Shutting down free speech is an attempt to make what the establishment considers to be just the only rule.
“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.”
But if you give the government the right to take away the free speech of Klansmen, you are saying it’s no longer a fundamental right. And once the government has the power to decide who has the right to free speech, eventually they will come for the radicals, artists, and activists. Do you really want to give Donald Trump executive power to suppress speech?
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.
This is not a good justification for discarding free speech.
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.”
The problem with this argument is that science and literature are political. If the government has the power to ban arbitrary speech as obscene, they will use this power as a weapon to suppress points of view they disagree with. Because Conservatives once held the majority and were the establishment, it was Liberals who used the right to free speech to defend themselves. Throwing that right away when it looks more and more as if the Democrat/Republican neo-liberal/neo-conservative establishment is failing seems crazy.
But a transformative ruling by the Supreme Court five years later began to change that thinking. The case, a challenge to a state law that banned advertising the prices of prescription drugs, was filed by Public Citizen, a consumer rights group founded by Ralph Nader. The group argued that the law hurt consumers, and helped persuade the court, in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, to protect advertising and other commercial speech.
This is what the ‘progressives’ seem bent on giving up. Does free speech give rights to conservatives? Yes. Can it be used to justify bad things, like the ‘right’ of corporations to pour endless funds into the political system, bending it to their will? Yes. But it also allows us–we, the people–to defend ourselves from authoritarians and corporations.