Abandoned? The Liberal Flight from the First Amendment
A FEW CAUTIONARY WORDS – First, and apart from a few well-intended editorial swipes here and there, the following comments are meant to be primarily descriptive. Second, nothing that follows should be interpreted as a wholesale attack on the American Civil Liberties Union. As one who has long supported its efforts, and continues to do so, liberty in our nation would be impossible without its sustained and courageous efforts. Third, repression of speech has historically been the calling card of the Right and I do not mean to discount that important fact. Fourth, though preliminary in nature, the remarks that follow are a part of a stream of ideas I have had for some time and are in sync with a forthcoming essay of mine due out soon on First Amendment Watch. That essay is titled “Let us not speak falsely – A call to candor from one progressive to another.” With those four caveats, my words are now subject to public scrutiny.
Repression in this country, repression of speech, has historically come from the right. . . . Now I think there is a significant movement for repression from the political left.
— Anthony Lewis, March 13, 1994, New York Times Magazine
We have no tolerance for tolerance. That could be the liberal mantra. Tony Lewis feared the prospect then and others fear it now. Tolerance used to be the rallying cry of free-speech liberals. It was gospel in past times when intolerance afflicted the land like a cultural cancer. But no more; the old gospel has lost its staying power. The ideological winds have blown long and hard, so much so that the word that was once revered is now reviled. For many of today’s liberals, yesterday’s calling cry is past tense, something to be disregarded in modernity’s cultural wars.
Defending speech with which we differ, and which we find offensive, has always been difficult. That is why the First Amendment was such a political feat when it was ratified in 1791, and continues to be an astonishing fact of constitutional liberty so long as it is faithfully honored. Toleration (that enemy of the self-righteous) has always been at the heart of the First Amendment. But ideology makes its demands and when it does liberty is left wounded. Sensitive to such concerns, the reflections that follow (by an open-minded person with progressive tendencies) are about the liberal abandonment of the First Amendment, or much of it.
Case in point: A recent book by a noted First Amendment scholar, Professor Steven Shiffrin, reveals the seismic shifts in the conceptual and ideological lay of the land of liberal thought. The book is titled What’s Wrong with the First Amendment? (2017). In the name of liberal values, it wrecks many First Amendment precedential al pillars. More recently, Professor Louis Seidman wrote an essay for the Columbia Law Review titled “Can Free Speech Be Progressive?” His answer: no. These two authors are not the rants of fringe figures. Hardly. If anything, their words might well be seen as signposts of the past and future.
Another case in point: Not too very long ago, the Senate Judiciary Committee considered a proposal, endorsed by 42 Democrats, to amendthe First Amendment. Why? The answer is as simple as it was astonishing: Because they were outraged that the Supreme Court had vindicated First Amendment claims involving political speech in the form of contributions in an election campaign. To be more precise, but no less honest, they were livid with the Court’s handling of campaign finance cases dating back to 1976 – that is, rulings by the Burger, Rehnquist, and now Roberts Courts. (Let us not forget that liberal stalwarts such as Justices William Brennan and Thurgood Marshall signed onto some of those objectionable opinions).
In 1997, in response to similar efforts to amend the First Amendment, Senator Ted Kennedy counseled: “In the entire history of the Constitution, we have never amended the Bill of Rights, and now is no time to start. It would be wrong to carve an exception to the First Amendment. Campaign reform is a serious problem, but it does not require that we twist the meaning of the First Amendment.” But that was then. Now, carving out an exception to the First Amendment is the liberal battle cri du jour, with virtually every Democrat in the Senate then supporting the “twisting” of the First Amendment against which Senator Kennedy warned.
In the midst of the 2014 Senate Judiciary Committee hearing, Republican Senator Ted Cruz turned to the Democrats and asked: “Where did the liberals go? Why is there not a liberal standing here defending the Bill of Rights and the First Amendment?” Cruz (who relished any chance to castigate liberals) was right. Not a single Democratic Senator defended the First Amendment against the proposal. There was, however, one lone liberal there, one who spoke out – Floyd Abrams, the famed First Amendment lawyer. Yet in today’s political climate, that defense of the First Amendment is so out of step with America’s liberal community that he had to testify at the request of then-Republican Minority Leader, Senator Mitch McConnell.
Still another case in point: During its years of rule, the Obama Administration threatened the press more than any Administration since than that of Richard Nixon. There were more leak investigations under that Administration than any other (though the Trump team may venture to beat that record). More records, including telephone records, of journalists were obtained by that Administration than any other. After years of litigation against the Obama Department of Justice in an effort to protect his confidential sources, New York Times journalist and national security expert James Risen was in imminent peril of being imprisoned for refusing to reveal his sources.
More still: Some of the Court’s leading liberals, such as Justice Stephen Breyer, often wrote or joined opinions in stark conflict with those of great liberal jurists of the past. In several important ways, such opinions were more hostile to First Amendment values than any of the opinions of some of the more conservative Justices of today. For example, one of Justice Breyer’s opinions (his dissent in McCutcheon v. Federal Election Commission) went so far as to read the First Amendment not as protection against government, but rather as a guarantee intended to “preserv[e] a democratic order in which collective speech matters.” That revealing view of First Amendment law, joined by the other three more liberal members of the Court, was denounced by Chief Justice John Roberts as being contrary “to the whole point of the First Amendment” of not permitting the will of the majority to carry the day by barring speech of which it disapproved.
And the abandonment problem is even worse: In the public-interest sector, great liberal organizations that had long and justly prided themselves on protecting the First Amendment in challenging times have changed their views dramatically. Why? As the prevailing moods changed, their liberal political ideology trumped their dedication to the First Amendment, or so it seemed. For example, the ACLU in Hill v. Colorado once argued against establishing speech zones outside abortion clinics, zones that would limit those who wished to persuade (and pressure) women not have to have abortions. Such buffer zones, the ACLU maintained, violated the First Amendment. That was in 2000, a different era in constitutional liberalism. By 2013, the ACLU verdict was different – the organization switched sides and submitted a brief in McCullen v. Coakley arguing in favor of the constitutionality of the very sort of restrictions on speech near abortion clinics that it had previously denounced. The result: a 9-0 judgment against the ACLU’s position and in favor of the First Amendment claims raised in the case.
Last Year, K-Sue Park wrote a New York Times op-ed titled “The A.C.L.U. Needs to Rethink Free Speech” (Aug. 17, 2017). Given the current climate, it would not be surprising to find that many A.C.L.U. liberals agree with that view. Dara Lind echoed that call in her Vox article titled “Why the A.C.L.U. is adjusting its approach to ‘free speech’ after Charlottesville” (Aug. 21, 2017). To be fair, the A.C.L.U.’s David Cole pushed back against such charges. See David Cole, “Why Free Speech Is Not Enough,” NYRB, March 23, 2017 and David Cole, letter to the editor, NYT, Aug. 18, 2017)
Lest we forget, the New York Times editorial board once readily defended the most expansive readings of the First Amendment, including those relating to national security as in the Pentagon Papers Case(1971). Here, too, that support for free expression has not only waned in several instances but has sometimes been abandoned. Time and again, when press freedoms were not involved but free expression for others was, the editorial page has argued against, or simply ignored, the need for virtually any First Amendment protection. In cases involving campaign finance issues, commercial speech, or the expression of “pro-life” views near abortion clinics, the Times has taken a predictably Leftist stance, but one at odds with traditional free speech values.
Liberal campuses, those one-time havens of diverse viewpoints, have repeatedly violated the speech rights of students, professors and groups. Fidelity to the letter and spirit of the First Amendment has been forsaken in the name of speech codes (and trigger warnings, and “safe spaces”). Such codes have all too consistently been held unconstitutional with respect to public colleges. No matter. They continue to be enforced against politically incorrect students or groups. The actual purpose being to silence any and all speech deemed offensive to even the most sensitive of psyches. Admittedly, the object of such censorial practices is often vile or even bigoted speech, the kind that should be rebutted and openly – a point astutely made in a new book by Nadine Strossen titled HATE: Why We Should Resist It with Free Speech, Not Censorship (2018).
* * * *
Freedom of speech doesn’t disappear in one dramatic instant — or one lawsuit. Instead, it shrinks and shrivels a little at a time. That barely visible process makes the loss no less profound.
— Paul M. McMasters, May 24, 1999
The liberal divide has been widening for decades. Turn back the pages of time to the McCarthy era and the “Red scare” and you will discover that many liberals jumped ship when the “C” word was branded on any freethinking American. Even the A.C.L.U. was shockingly silent back then. Outrage by some on the Left led to the formation of the Emergency Civil Liberties Committee, which disagreed with the A.C.L.U. for not coming to the defense of people charged with violating the McCarran Act (1950). (In time, however, the A.C.L.U. came around and confessed to its sins of omission.)
Years later there was Jerome Barron’s seminal 1967 Harvard Law Reviewarticle titled “Access to the Press — A New First Amendment Right” followed by his book Freedom of the Press for Whom? The Right of Access to Media (1973). Both works called on the national government to intervene in the name of leveling the playing field in media matters by compelling public access. With that egalitarian idea, the seeds of rebellion began to stir in the soil.
Then there were those fierce debates in the liberal community on pornography (professors Nadine Strossen vs Catharine Mackinnon), commercial speech (professors Burt Neuborne vs C. Edwin Baker), campaign finance (the ACLU’s Joel Gora vs. Norman Dorsen), and hate speech (journalist Nat Hentoff vs professor Richard Delgado) (today: professors Nadine Strossen vs Jeremy Waldron).
And what about those liberals in the Clinton Administration? Have we forgotten them? If so, Google Floyd Abrams’ March 30, 1997 essay in the New York Times Magazine. In it, he observed that “it has become the norm, not the exception, for Clinton Administration lawyers to find themselves minimizing First Amendment interests and defending laws or policies that maximize threats to free expression. Time and again, the Administration has opposed serious First Amendment claims in court, acquiesced in serious First Amendment damage by legislation and ignored First Amendment limits in its own conduct.” In spirit if not in words, this trend was all there on public display some two decades ago in an issue of The Nation titled “Speech and Power” (July 21, 1998). The process was incremental but continued to this day.
While the old liberal Rome burns, First Amendment scholars in the legal academy routinely fan the fires with ever more restrictive theories of free speech – theories touching on everything from sexual speech, to corporate speech, to labor union speech, to so-called offensive speech, to hate speech, to anti-abortion speech, and to campus speech. Even the once hailed ruling in Reno v. A.C.L.U. (1997) is now coming under liberal fire. What next?
In past decades, liberal professors delighted in reciting the words of Justice Louis Brandeis. Those words emphasized that the framers of the First Amendment “valued liberty both as an end and as a means” and that they “believed liberty to be the secret of happiness and courage to be the secret of liberty.” No more . . . or at least in a wide swath of free speech cases.
Today, Brandeis’ words often fall on deaf ears. Many contemporary liberals’ value free speech liberty neither as an end nor a means. Instead, they seem willing (and sometimes eager) to place their trust in government’s censorial hands, the very ones the old liberal guard claimed the First Amendment stood as a bulwark to protect against.
Ideology has played its censorial hand in liberal circles much as it has in conservative ones. To borrow a line from a liberal of yesteryear, Nat Hentoff, “free speech for me, but not for thee.” Welcome to that world.
If there is to be any real and renewed support for First Amendment principles, it will likely be the result of liberals turning to it to the excesses of the Trump Administration. Beyond that, it seems that a quicksand fate awaits those liberals who still hold to the old principles.
Indeed, “the times, they are a-changin’.” Dylan’s famous song title and worn lines take on new life in today’s liberal free speech world. The very words that once were music to old liberals now prophesize their possible fate:
Come gather ’round people
Wherever you roam
And admit that the waters
Around you have grown
And accept it that soon
You’ll be drenched to the bone.