Civil Liberties Can’t Survive Partisan Hatred

By David French

Monday, May 07, 2018

Democratic congressman Ted Lieu is at it again. Days after tweeting that Michael Cohen’s decision to take the Fifth in the Stormy Daniels civil litigation was “powerful confirmation that the US Attorney’s Office for SDNY was absolutely right in executing searches of Cohen under the crime-fraud exception to the attorney-client privilege,” Lieu has added a new wrinkle. In response to the news that President Trump may exercise his Fifth Amendment rights in the Mueller investigation, Lieu asserted that the decision to take the Fifth is — all by itself — reason enough to believe that a person has something “to hide from the American people.”

Lest anyone think I’m too hard on Lieu, he’s in good company. None other than President Trump himself told an Iowa crowd during a campaign rally that “The mob takes the Fifth. If you’re innocent, why are you taking the Fifth Amendment?”

And it’s not just the Fifth Amendment under fire. Consider a common left-wing response to conservative arguments for free speech: It’s all cover for racism. No, really. Here, for example, is Bloomberg View writer Noah Smith:

Basically, to the right, “free speech” is a proxy for “the right to say races and sexes are inherently different without fear of censure.” As far as I can tell, this is 100% of what the “free speech” debate is about – the idea of “group differences.” Every idea that people on the right seem to feel they can’t express in public boils down, eventually, to this.”

The notion that arguments for free speech are equivalent to arguments for white supremacy or other forms of bigotry has long been a staple of campus discourse. In 2006, for example, I represented two brave young women in a lawsuit challenging multiple unconstitutional speech policies at Georgia Tech. What was the first line of the L.A. Times story covering the case?

“Ruth Malhotra went to court last month for the right to be intolerant.”

And what was the headline of the Atlanta Journal Constitution when Ruth and her friend Orit Sklar secured a crucial victory, striking down the school’s speech code?

“Insults now allowed at Georgia Tech.”

I could go on, of course. From the disturbing habit mainstream media outlets have of putting scare quotes around “religious liberty” when Christians (and others) seek stronger protections for religious freedom to California legislators proposing a relentless series of bills aimed directly at Christian colleges, Christian employers, and expressions of orthodox Christian sexual morality, it’s almost as if opposition to conservative religious practice is now a key tenet of the #Resistance.

In more than two decades of advocacy for free speech, I’ve learned that it’s easy to persuade Americans to respect the civil liberties of people they disagree with. It’s much, much more difficult to persuade the same Americans to respect the rights of those they loathe. Demonize the opposition enough and eventually your tribe will get busy finding ways to rationalize and justify blatant censorship and double standards.

The Bill of Rights was designed to be counter-majoritarian. As the saying goes, our civil liberties aren’t up for a vote. And this is true . . . in the short and medium terms. Over the long term, however, civil liberties — just like politics — follow the culture. And when the political culture is driven by a spirit of vengeance, only the complacent believe that our fundamental freedoms will remain intact.

Consider the fact that the Supreme Court is even now pondering two key compelled-speech cases concerning the attempts of progressives in Colorado and California to force people of faith to violate their consciences. In Colorado, the state is attempting to conscript a Christian baker into using his artistic talents to help celebrate a same-sex union he believes is unholy. In California, the state is trying to force pro-life crisis-pregnancy centers to advertise for free or low-cost abortions. An adverse ruling in either case would do damage to decades of free-speech jurisprudence. But I fear that positive rulings may only stem the tide for a time.

Continue down the present path, and legislators will keep passing laws designed to suppress opposing views. Law schools will raise young lawyers to view free speech and due process as instruments of oppression. And a population that long ago rejected the culture of liberty will demand that the law conform to its vindictive ideals.

We’re fast reaching the point where the sole important question for a critical mass of Americans is simply, “Who wins?” For example, many millions of conservatives who lament the fact that corporate America is increasingly closed off to conservative points of view were also cheering President Trump’s call for the NFL to terminate football players who kneeled during the national anthem. Is there a desire for open discourse, or just a desire to protect our own?

Civil liberties are at the heart of American exceptionalism. The liberties enshrined in the Bill of Rights are a key expression of the “unalienable rights” that government exists to protect. Their legal and cultural protection is vital to the health of the American republic. And for those civil liberties to endure, we have to embrace them not just for our friends or for those with whom we disagree, but for those we hate. If we can’t do that, then, over time, American liberty will be lost.