“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” — The First Amendment to the U.S. Constitution.
These words are crystal clear. You can imagine, then, my surprise at a New York Times article from June 2018 by Adam Liptak, the Times’ Supreme Court correspondent, entitled: “How Conservatives Weaponized the First Amendment.”
Liptak essentially highlights the growing scepticism towards free speech absolutism amongst certain left-leaning spheres, as the American right continues to score victories on landmark cases of speech. Alleged victims include: “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 crux of the underlying sentiment is one I have heard before, including on Kenyon’s campus: “free speech reinforces and amplifies injustice.”
But, how exactly? Beyond citing conservative victories in the Supreme Court, Liptak provides little evidence that the first amendment has been, as Justice Elena Keagan describes, “weaponized.” Liptak’s implication is that virtually every conservative victory in the Supreme Court is not actually a win for “free speech,” as however Liptak defines it, but instead a bludgeoning tool used by the right to score partisan political points. What Liptak fails to realize, however, is that his glaring bias and partisanship when it comes to speech both erodes his argument, and demonstrates the importance of the First Amendment to begin with.
Take Citizens’ United for example, which Liptak posits as an instance of said court manipulation and injustice. Firstly—if the case was so clear, why would Liptak bother citing liberal Northwestern University Law Professor Martin H. Redish’s argument defending commercial speech in his article? As Professor Redish points out:
“It is widely assumed that our democratic system is designed to protect the rights of citizens to advance their personal or economic interests by seeking to persuade others to accept their arguments. There exists no rational basis on which to categorically set commercial speakers apart, other than the ideologically driven desire to penalize those who benefit from the capitalistic system. Such justification is pathologically inconsistent with the very foundations of the First Amendment the argument purports to implement.”
Setting aside the case of Citizens’ United for another time, we can clearly see the glaring misstep in Liptak’s argument. At first glance, Liptak’s mention of Professor Redish’s argument is worth commending. In reality, Liptak, by highlighting the opposing view, simultaneously acknowledges the complexity and nuance of many Supreme Court cases, and chooses nonetheless to throw that out the window whilst crying “they’ve weaponized the court!”
Practically every argument used in this article, including his highlighted arguments of various left-leaning Constitutional Law scholars (bar the few opposing ones) essentially goes as follows: “I used to support the First Amendment when I saw it protecting the little man. Instead, I now see it as a threat to our country because I disagree with the rulings coming out.” Georgetown Law Professor Louis Michael Seidman, quoted by Liptak, says it most clearly: “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.”
So what solutions do First Amendment critics propose (as Liptak fails to do in his piece)? Reforming the Supreme Court, and dictating which cases it can and cannot hear? Censorship of entities during campaigning, including unions? Perhaps reforming the Bill of Rights itself? I would argue that to embark on any of these ventures would bring harm to those the left aims to protect. True, the First Amendment is not explicitly there to protect the disenfranchised. It is, however, and has been, an incredible asset in doing just that. One need only look at the abolitionist work and literature of Benjamin Franklin, Henry David Thoreau, Frederick Douglass, and Harriet Beecher Stowe that helped bring to light the heinous nature of slavery, and shift the tide of American hearts. It was the peaceful assembly and protest of Dr. King and his supporters that we should aim to embody and protect. Progressives were right to champion free speech in the 1960s to combat racism and injustice, as well as lies about the Vietnam War propagated by our government. They should not abandon that larger cause.
America’s Constitution upholds the foundation of individual sovereignty in a system of limited government, wherein free speech, as Bo Winegard of Quillette writes:
“allows us to test ideas by having them encounter skepticism. Sometimes they triumph. Sometimes they transform. And sometimes they perish. Without this clash of contradictions, ideas become bloated and stale and errors and imprecisions accumulate.”
Moreover, our Founders knew of what becomes of citizenries who lose their right to criticize the government. That is why they so clearly outlined it as the first protected right in our Bill of Rights. This incredible gift of free speech was not the norm of society until America made it so, and a failure to uphold this freedom would have progressives of the past rolling over in their graves. The modern left should think twice about calling into the question the First Amendment—one of their greatest historical allies. If they forfeit that right for those with whom they disagree, they risk forfeiting their own right to use it down the road. Those who recognize the danger in this, especially progressives, ought to speak out now—loudly and clearly.
“If freedom of speech is taken away, then dumb and silent we may be led, like sheep to the slaughter.”— George Washington
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