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.
The Supreme Court is "weaponizing the First Amendment," Justice Kagan warned last week. A look at how the politics of free speech have flipped. https://t.co/CtnNJzb8b9
— Adam Liptak (@adamliptak) June 30, 2018
This is monumental news: the most influential newspaper in the world, the standard bearer of the Establishment, is announcing that free speech is, or should be, over.
The article states:
The (Supreme) 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 Court’s progressives believe that a religious pregnancy counseling service is giving medical advice, so it should cover all options, including abortion. But pregnancy advice is not merely medical; it is also 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 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. Liptak continues:
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. …
If certain recent conservative victories have been “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 free speech itself.
The article approvingly quotes a Cato Institute lawyer who rightly labels the Court’s position as libertarian:
“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. But this doesn’t hold water. 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, it implies that people such as Kagan who find such absolutism to be a “weaponizing” of the First Amendment 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 social justice left’s commitment to its own ideological “religion” seems to be getting the upper hand.
The Times article continues to argue that:
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.
But 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. 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. It seems that Prof. Schauer is pleased to call this policy “naïve” because that is how the culturally elite law professors (who know better than the rest of us) like to persuade the readers of the Times. All he really means, of course, is that he and his fellow cultural elites 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 pundits 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 “weaponizing” in a moment, but I’d like to point out that the Times is presenting these two campus radicals as liberals, which is ridiculous. They are both theorists of the far left, purveyors of critical legal studies; MacKinnon considers herself a “post-Marxist.” Such people are leftists, not liberals.
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 skeptical of free speech absolutism, then you are not a liberal for that reason alone: what is more essential to American liberalism than a 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 Planet Earth: it is nothing new, it will never change, but it becomes much, much worse whenever a radical leftist regime takes over. The obvious fact that the powerful enjoy free speech rights, however, does not establish that free speech is not also a deeply important right of those who are 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 was $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 terrible on First Amendment rights, and a stalwart of that brand was rejected Supreme Court nominee Robert Bork. His principle, that the First Amendment protects only political speech and not creative works, was repressive, and roundly despised, particularly by progressives and liberals. 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. Yet although it cites Bork’s Principle approvingly, the Times article clearly does not view conservative speech as being equally worthy of protection as liberal speech, arguing that the Supreme Court has “ruled in favor of conservative speech at a higher rate than liberal speech as compared to earlier courts.”
Has the Supreme 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 obvious. Yet the Times writer seems not to think so, and in this he follows Seidman, who (it seems) confuses partisanship for scholarship.
For argument’s sake, let’s suppose that it’s true that the Supremes have recently protected conservative speech more than progressive speech. This could be due to the random patterns in the data. It would be hard to show otherwise: the sample sizes (of Supreme Court free speech cases) are surely too small to show statistical significance. It could also be 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 that, somehow, free speech absolutism is now suddenly a “conservative” only 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 percent, to 42 percent, to 65 percent today. The latter number is supposed to establish that freedom of speech is now a “conservative” value? Consider that in 1969, the number was 22 percent. Would it have been reasonable, at that time, to conclude that conservatives should not have cared at all about free speech rights, that they were justified in being soft on free speech? I don’t think so.
Yet for all of the bad argumentation that is present within the Times article, the Supremes themselves articulate their positions well. (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!):
“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,” [Alito] 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 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.)
Although it’s no big surprise to me that the Times has come out against free speech absolutism, declaring it to be a conservative position and something that all enlightened people have evolved beyond, it’s dismaying to see it there on the front page in black and white. Our world has changed.
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 percent of Americans favor banning hate speech – that’s actually a lot considering we’re talking about doing away with the First Amendment – fully 52 percent of Democrats (i.e., most of them) support such laws. The number goes up to 61 percent of Democrats, if we specify that the laws protect black Americans against hate speech. Maybe more troubling is that 66 percent of Democrats believe hate speech is “violent”; if you believe that, then of course it’s a short step to conclude that “violent 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 percent of Americans believe that banning hate speech is consistent with the First Amendment. It’s a good thing they aren’t on the Supreme Court.
Free speech on campus has increasingly come under attack. One of the most telling numbers from the Cato survey was that 68 percent of students support a confidential “bias reporting system,” i.e., they imagine that it’s a good idea that there be campus speech monitors, assisted by student informants. This is almost as stunning is the fact that 48 percent of all Americans support such a totalitarian system as well.
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 would 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 or any other social agenda. 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—openness to censorship—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 their 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 often 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, sadly, there is no reason to think that a future Court might not dismantle many current First Amendment protections.
Also, learn the arguments; the case for free speech is very strong. There is no intellectually respectable case to be made for censorship (especially of merely offensive speech). 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. By contrast, the risks of censorship and compelled speech are enormous: think of the threat to free and open inquiry. It is, in short, obscene to treat free speech as “weaponized,” when it is censorship and compelled speech that have been, throughout history, very real tools to stifle dissent and scaffold authoritarian regimes.
Larry Sanger is co-founder of Wikipedia and a Ph.D. philosopher. He is currently CIO of Everipedia, which will soon put Wikipedia’s content on the blockchain. Follow him on Twitter @lsanger