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. Read More