FAN 93.1 (First Amendment News) Ira Glasser on Free Speech & “Trendy Liberals”

The following comments were sent to me by Ira Glasser in response to the lead item in FAN 93: “What’s Wrong with the First Amendment?” — Steven Shiffrin’s Book Coming This Summer (Jan. 13, 2016). Among other things, Mr. Glasser was the executive director of the American Civil Liberties Union from 1978 to 2001. I asked Mr. Glasser if he would share his comments with our readers; he kindly agreed.

One additional point: FAN’s mission is both to share news and (from time to time) to provide a forum for spirited and informed dialogue. It is in that spirit that Mr. Glasser’s comments are offered up for your consideration. — RKLC    

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Ira Glasser

Ira Glasser

Thanks for your preview of Professor Steven Shiffrin’s forthcoming book, What’s Wrong with the First Amendment (Cambridge University Press, summer 2016).

That we have a deconstruction of the First Amendment from the “liberal” side of the political spectrum should come as no surprise: The Venn diagram of “liberals” and “civil libertarians” has always had a smaller overlap, a smaller common ground than widely assumed. In general, they have been distinct sets of beliefs, often inaccurately conflated in the warm bath of political labels.

Most liberals have always favored one exception or another to their support of free speech, and most Americans, including most people who regard themselves as conservative, have always vigorously supported free speech, as long as it was theirs, or that of folks whose views they supported.

What those who supported the First Amendment rights of the self-styled neo-Nazis in Skokie (despite hating everything they said or represented) understood is that there was no way to support the ordinances used to restrict their speech without also inviting and legitimizing the use of similar, even identical ordinances by Southern towns against Martin Luther King, Jr. and his colleagues or against anti-Vietnam war protesters in Manhattan. In fact, such ordinances were so used against both.

Those “liberals” who now question whether the First Amendment should apply to speech they hate, or which causes them “emotional distress,” seem to believe that because they are clever enough to imagine doctrinal distinctions between certain speech content that such distinctions can hold true in the real world in which such decisions are politically made, and by “politically” I include the judiciary.

Sample Current Headlines 

Is the Left Killing Free Speech?” (Radio West, Dec. 18, 2015)

Freedom of Speech More Unwelcome Among Liberal Students, Faculty” (Daily Caller, Nov. 22, 2015)

Why Do Liberals Hate Free Speech?” (Washington University Political Review, Oct. 12, 2015)

The Anti-Free-Speech Movement at UCLA” (The Atlantic, Oct. 15, 2015)

The critical question about such distinctions is always who decides? Smart people can always make analytic distinctions inside their heads, and construct defensible justifications for their distinctions. But who shall decide how to apply them in the real world? It will always be the government. So who, in fact, will decide?

Prof. Steven Shiffrin

Prof. Steven Shiffrin

Law professors intoxicated by their own cleverness seem always either to ignore that question or implicitly assume it will be them, or people like them, when in fact it will most often, or often enough, be people like Joe McCarthy, Richard Nixon, Ronald Reagan, Dick Cheney, Rudy Giuliani and Jesse Helms.

What causes Professor Shiffrin emotional distress may be one thing, but what causes Richard Nixon or Rudy Giuliani emotional distress will be, and actually has been, quite different. And it will be they, not Professor Shiffrin, who will be in a position to decide which speech to permit, and which to prohibit under that vague and necessarily subjective standard.  And ditto many, if not most, judges.

Not to mention the tendency of free speech believers whose support for free speech when they are not in office is often much diminished once they have political power. Take John Adams, for example, and even Thomas Jefferson, both of whom proved to be better civil libertarians and free speech advocates when they were not president than when they were.

Not to mention either the parade of presidents of both parties who have without exception supported and maintained the growth of legalized secrecy – promiscuously overbroad classified information – as a way of preventing free speech and democratic debate by selectively removing information essential to that debate, and then criminalizing its disclosure (e.g., Daniel Ellsberg, Edward Snowden). I have not seen many law professors or judges construct a First Amendment theory to remedy that problem.

As you say, we will have to await Professor Shiffrin’s book before we have answers. But I will not be surprised if he, implicitly if not explicitly, rests his thesis on the premise that wise folks like him will make and enforce the additional legal distinctions he favors between presumptively beneficial and presumptively harmful speech.

Nor will I be surprised if Professor Shiffrin’s book does not adequately come to grips with the problem of how such “balancing” standards as he may recommend, establishing new limits on speech, will be interpreted and enforced by those who have political power against those who do not.

Broadening standards for restricting speech, and proposing new criteria to balance against the right to freedom of speech that does not take such considerations into account is a conceit that in practice will endanger freedom of speech and the dissent it is intended to protect. As the pamphleteers of the founding generation knew, rights, including rights of dissent, are always fragile and vulnerable, while power is voracious, relentless, ever expanding. And given more grounds to restrict speech, power will take them. If that is at the heart of Professor Shiffrin’s theory, it will not be the first time such a conceit lies at the foundation of a theory of benevolent censorship: it goes back to Plato.

This theory continues to gain ground among liberals. As for the ACLU, despite its continued strong advocacy of free speech in areas like national security, I note in passing that in the areas where speech comes into conflict with other causes the ACLU justly supports (like equality rights and anti-discrimination on the basis of skin color, gender and sexual orientation), its vigorous advocacy for content-neutral free speech rights has diminished as the organization has transformed itself incrementally but to a significant extent from a uniquely civil liberties group to a trendy liberal interest group – not the same thing.

See also

 FAN 49: “ACLU “2015 Workplan” sets out narrow range of First Amendment Activities” (Feb. 25, 2015), and FAN 50: “ACLU’s 2015 Workplan & the First Amendment — Anthony Romero Responds” (March 4, 2015)

Wendy Kaminer, “The American Liberal Liberties Union,” Wall St. Journal, May 23, 2007

 Aryeh Neier, Defending My Enemy: American Nazis, the Skokie Case & the risks of Freedom (1979)

 David Goldberger, “Skokie: The First Amendment under Attack by Its Friends,” Mercer Law Review (1978)

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7 Responses

  1. Edward Cantu says:

    Great post. It’s remarkable how often the more censorship-inclined forget (or minimize for purposes of conceptual convenience, the reality) that the values of classical liberalism are not cultural accidents of history but rather are the products of harsh lessons learned when ideas that seem good in the abstract prove dangerous when the rubber hits the road of human nature.

  2. Michael Dorf says:

    Although a modicum of humility would have counseled that Mr. Glasser wait until he had actually read Professor Shiffrin’s book before attempting to review it, perhaps he can be forgiven for incorrectly guessing at its content. Shiffrin does not, as Glasser wrongly projects, simply assume that he and like-minded left-liberals will always be in charge of deciding the boundaries of freedom of speech. Instead, he unfavorably contrasts the jurisprudence of the Supreme Court we have with the jurisprudence of the courts of just about every other constitutional democracy in the world. All of those other countries are more restrictive of certain kinds of speech in various respects, and yet they maintain a commitment to the core of free speech and free press. Meanwhile, Glasser’s picture of our own First Amendment jurisprudence is highly idealized. He contrasts the balancing that Shiffrin and the rest of the world favor with a fictive version of American free speech jurisprudence, in which the First Amendment magically applies itself. Glasser would have done well to read an earlier book of Shiffrin, one that is widely available: Shiffrin’s 2000 Princeton U Press work Dissent, Injustice, and the Meanings of America. There he argues that in key respects the Supreme Court under-protects the free speech that really matters. Shiffrin does not think that we have too much protection for freedom of speech; he thinks that in a number of ways we have the wrong kind of protection. That subtlety would not have been lost on Glasser had he bothered to do even a tiny bit of investigation into who Steve Shiffrin is and what he thinks.

    • Brett Bellmore says:

      “Instead, he unfavorably contrasts the jurisprudence of the Supreme Court we have with the jurisprudence of the courts of just about every other constitutional democracy in the world.”

      Yes, free speech is protected to an unusual degree in America, and this irks people who’d like speech they dislike to be censored.

      “All of those other countries are more restrictive of certain kinds of speech in various respects, and yet they maintain a commitment to the core of free speech and free press.”

      Or, to put it another way, sure, they censor, sometimes with a rather heavy hand, (Try having a public debate concerning Muslim immigration in Europe.) but they don’t censor everything, and they call what they censor “hate speech”, so it’s ok.

      Glasser’s indictment of ‘liberal’ disdain for freedom of speech is right on target.

      • Joe says:

        “There he argues that in key respects the Supreme Court under-protects the free speech that really matters.”

        As noted below, liberals repeatedly point out cases where freedom of speech is not protected, while at times disagreeing with certain other cases where speech is protected (“freedom of speech” not “make no law about speech”). You for some reason skip over this part.

        • Brett Bellmore says:

          Principle isn’t defending the right you’re exercising. It’s defending the right being exercised against you. Why should I be impressed with liberals defending the right to say things liberals want said? (in Rust v. Sullivan, the right to be paid for saying it!) That’s just expediency.

          The censor never censors himself, but why should he get any credit for that?

          • Joe says:

            The principle is free speech and it includes both defending speech you like and dislike. I have in multiple threads cited cases where liberals defended free speech, including speech they don’t like, and citing cases where conservatives did not protect free speech.

            But, you are not evenhanded. You continuously harp on liberals as censors. Why credit conservatives for supporting speech THEY like? Not “censoring” (free speech is not absolute, so apparently there is some censoring allowed) there isn’t tainted in your eyes from what I can tell. Stones/glass houses.

            Prof. Shiffrin doesn’t ignore the importance of free speech but has written about various cases where he argues it is underprotected. You selectively quote Prof. Dorf’s comment to skip over this SPEECH PROTECTIVE aspect of his writing. And, liberals repeatedly protect speech they don’t care much for and I’m sure Shiffrin does too. Maybe, a ballot access for some third party conservative candidate with non-liberal views or street protests (free speech zones a major concern for many liberals) for some group they don’t like or various other things the Supreme Court doesn’t care much about these days.

            Finally, Rust v. Sullivan involves funding of those unable to pay for health insurance not having their doctors CENSORED when they talk to them about their medical conditions. Suddenly, censoring isn’t a big deal for you. The rule isn’t just for one type of medical care here. It isn’t some special abortion rule. Medical decision-making includes choices many liberals might not like. It isn’t “expediency” — it is opposition to censorship for poor people, a promotion of inequality along with censoring.

            Maybe, you’d care if involved a poor person getting information on guns or something you care about.

  3. Joe says:

    “he argues that in key respects the Supreme Court under-protects the free speech that really matters”

    This is a useful point — the dissents in the Bong Hits, Holder v. Humanitarian Law Project and certain ballot access cases, e.g., have included liberals pointing out cases where the conservative leaning Supreme Court denied 1A rights. Another would be Rust v. Sullivan (abortion speech). This is so even if the Supreme Court has protected speech in other contexts where liberals dissented such as campaign finance cases.