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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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?
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.
→ 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)