Liberals Sour on the First Amendment

By Jonathan S. Tobin

Tuesday, July 03, 2018

When in 1977 the American Civil Liberties Union defended the right of Nazis to march through a Jewish neighborhood in Skokie, Ill., the organization was lionized for its willingness to say that the principle of free speech was more important than the sensibilities of those who were offended by that demonstration. The ACLU took a similar position on campaign-finance laws, which it rightly saw as an attempt to silence the exact kind of expression — political speech — that the Founders were most anxious to protect.

No longer. An internal memo has revealed that the ACLU will stop standing up for the rights of those with whom its liberal donors disagree. And the group isn’t alone in changing its mind: After the Supreme Court’s conservative majority defended the rights of anti-abortion activists and civil-service workers in two separate cases, Justice Elena Kagan alleged that conservatives “were weaponizing the First Amendment.” The New York Times used the comment as the basis for a front-page story in its Sunday edition.

In recent years, the Court has defended the First Amendment in a variety of contexts, from campaign finance to religious expression. But, as the Times noted, while the libertarian position on speech used to be the liberal position, the willingness of conservatives to invoke the First Amendment on behalf of positions and policies that liberals dislike has soured the latter on the idea of free-speech absolutism. They see the individual rights they once zealously defended — when invoked by street protesters or pornographers — as harmful when invoked by corporations or devout religious believers. According to legal scholar Catherine McKinnon, the First Amendment has become the “sword” by which “racists” and “corporations buying elections” amplify and reinforce injustice.

Of course, while this is a departure for the ACLU, there’s nothing new about the Left in general opposing the concepts of tolerance and free speech. In his 1965 essay “Repressive Tolerance,” leftist philosopher Herbert Marcuse argued for stripping conservatives of the right to free speech and assembly. For a Marxist like Marcuse, tolerance should be extended only to those who oppose the mechanisms of liberal capitalist societies.

Marcuse’s ideas were highly influential among the New Left radicals of the 1960s, who would shut down universities and seek to silence their opponents in the name of their good intentions. His was an essentially totalitarian ideology in which left-wing ideologues who claim to speak for objective truth can punish and repress those considered unenlightened or sinful.

That such thinking is completely antithetical to the spirit of the Constitution and the Bill of Rights is inarguable. It is true that no right, not even that of free speech, is absolute. But it is a bedrock principle of American democracy that the government exists in order to defend the constitutional rights of its citizens, not to act as a referee tasked with restricting unpopular or inconvenient speech.

The practice of “free speech for me but not for thee,” as the title of the classic work by Nat Hentoff put it, is a game that conservatives play as well. But if liberals have taken the lead, that is not so much a function of tactics as it is a commentary on the way they helped transform American society in the 20th century: They are no longer the objects of government pressure but are now exerting the force of federal power against their opponents. If Christian conservatives, pro-life groups, and critics of labor unions need civil-liberties lawyers these days, it is because liberals were able to pass laws that ignored or trampled on their rights.

But the notion that conservative advocacy of First Amendment rights is “weaponizing” or exploiting the Constitution sounds more like Marcuse than like liberal traditions of principled advocacy. In fact, it’s when constitutional rights are limited to political allies that they become weapons. As Justice Alito noted in his majority opinion backing the right of public-sector workers not to be compelled to contribute to unions, the ultimate basis for the decision was settled and neutral First Amendment law. The attempt by the dissenting justices to use the law to defend unions, which remain engines of Democratic-party fundraising and activism, against those whose right to opt out of dues was at stake, illustrated the way liberal jurisprudence has become the captive of liberal politics.

That’s why the debate about whether the First Amendment is for all or just those favored by liberals is at the heart of the upcoming battle to confirm Anthony Kennedy’s replacement.

Religious conservatives stuck with Trump in 2016, despite any misgivings about his personal conduct and demeanor, because they hoped he would keep his promises to nominate judges who would defend their religious freedom. They were right to do so, as the appointment of Justice Neil Gorsuch and dozens of lower-court conservatives has bolstered support for the First Amendment.

With so many leading liberals — including the quartet on the high court — having effectively abandoned the First Amendment in many cases, Republicans must rally around Trump’s effort to sustain the current majority. And those on the left who are tempted to buy into to Marcuse-like arguments should remember that the worm always turns in politics. There may come a day when they will need the amendment’s protections again. If it is still there, it will be because conservatives have preserved it.