It’s Actually Easy to Find Liberals Strongly Defending Free Speech

It’s Actually Easy to Find Liberals Strongly Defending Free Speech

Sometimes Senators (including one who won’t be named because of a pending election) ask questions like: “Why is there not a liberal standing here defending the Bill of Rights and the First Amendment?” It’s a reasonable question in light of books like Steven Schifren’s 2016 book What’s Wrong With the First Amendment? But unabashed liberals who love and protect the First Amendment are actually still out there, and speaking loudly, if anyone is listening.

Protecting the First Amendment, with its priceless protections for free speech, association and rights to petition for redress of grievances, is not a partisan issue, nor an ideological one. At least not yet. Just a few examples:

AFJ Releases New Edition of Advocacy Manual for Tax-Exempt Organizations:

One of the best resources for nonprofit organizations that want to conduct advocacy within the myriad and complex rules is the Alliance for Justice‘s Bolder Advocacy program. I recommend it to audiences all the time, and will do so again next month in a Continuing Legal Education program. AFJ has just released the fourth edition of The Connection, its instruction manual showing how to conduct legal- and tax-compliant advocacy.

Concurrent Opinions Debate:

Over at the blog Concurring Opinions, a debate of sorts among famed lions of the Left on liberal support for free speech. Yesterday, Ronald Collins of the University of Washington wrote about “the liberal flight from the First Amendment,” and today Ira Glasser, Executive Director of the ACLU from 1978-2001, (pictured above) picked up the thread with “Who has the power to decide? That’s the First Amendment question.”


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. …

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.  …

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.


The key question that many “progressives” have been mostly ignoring is the question of power: Regardless of intellectual standards developed by academics to distinguish between speech that they believe has only negative or minimal value to the democratic experiment, and which therefore they believe can be distinguished from other speech and safely restricted, the only important question is who will decide how such standards are applied, and to whom. If “offensive” speech or “hate” speech were legally unprotected by the First Amendment, whose speech would be restricted in the real world under that standard would differ depending on who had the power to decide. …

The Jewish students in England in the ’70s who enthusiastically supported a student-initiated ban on racist speech were shocked when, some years later, a Zionist speaker they wanted to hear was banned under the policy they had supported. It turned out that the people with the power to decide at the time believed that Zionism was a form of racism. So the Zionist speaker was banned. The Jewish students who had supported the ban on racist speech did not get to decide. …

But as the Sedition Act of 1798, which made “false, scandalous and malicious” speech a crime, showed, the power to target disfavored political speech as “false, scandalous or malicious” (and at the very least put it on trial, and the way that law was used to prosecute and imprison political critics of John Adams), persuaded many that in order to protect true speech, false speech had to be protected as well. This was because in the world of politics and power, the ability to label disfavored speech as “false” or “malicious” would inevitably spill over onto precisely that speech the First Amendment was designed to protect, including their own.

New Strossen Book:

Nadine Strossen, President of the ACLU from 1991-2008 and now a professor at NYU, has a new book out this month: Hate: Why We Should Resist It With Free Speech, Not Censorship. From the Amazon review:

HATE dispels misunderstandings plaguing our perennial debates about “hate speech vs. free speech,” showing that the First Amendment approach promotes free speech and democracy, equality, and societal harmony. We hear too many incorrect assertions that “hate speech” — which has no generally accepted definition — is either absolutely unprotected or absolutely protected from censorship. Rather, U.S. law allows government to punish hateful or discriminatory speech in specific contexts when it directly causes imminent serious harm. Yet, government may not punish such speech solely because its message is disfavored, disturbing, or vaguely feared to possibly contribute to some future harm. When U.S. officials formerly wielded such broad censorship power, they suppressed dissident speech, including equal rights advocacy. Likewise, current politicians have attacked Black Lives Matter protests as “hate speech.”

“Hate speech” censorship proponents stress the potential harms such speech might further: discrimination, violence, and psychic injuries. However, there has been little analysis of whether censorship effectively counters the feared injuries. Citing evidence from many countries, this book shows that “hate speech” laws are at best ineffective and at worst counterproductive. Their inevitably vague terms invest enforcing officials with broad discretion, and predictably, regular targets are minority views and speakers. Therefore, prominent social justice advocates in the U.S. and beyond maintain that the best way to resist hate and promote equality is not censorship, but rather, vigorous “counterspeech” and activism.


First They Banned Pooh, Then Tigger. “And Then They Came For Peppa Pig.”

First They Banned Pooh, Then Tigger. “And Then They Came For Peppa Pig.”

Peppa Pig is a hit British cartoon series, aimed at pre-schoolers, about a little pig who has adventures such as “Happy Birthday” with her family and friends. Now she has been banned in China.

Why would the Chinese government ban an animated pig? Because she was becoming a viral hit among shehuiren, who can be described as “people who run counter to the mainstream values and are usually poorly educated with no stable job. They are unruly slackers roaming around and the antithesis of the young generation the Party tries to cultivate.” In other words, very much like the descriptions of many young Americans of the past and today.

Last year, the Chinese government banned Winnie the Pooh, at least in part because the animated bear was used as a proxy for Chinese strongman Xi Jinping. When the Chinese leader met with then-President Barack Obama, resulting in portrayals of Pooh and Tigger, Pooh’s tiger friend, the Chinese government banned Tigger too.


PHOTO: Reuters, via

With Facebook and Google trying to figure out what and how to censor objectionable speech on social media, perhaps this censorship trend will spread to the U.S. Actually, the Chinese censorship campaign already has, with Marriott Corporation firing an employee who apparently accidentally “liked” a pro-Tibet social media posting, and the U.S. State Department warning U.S. Citizens who travel to China that they can be detained or deported for private messages critical of the ruling Communist Party.

And Congress is taking notice.

China is not alone. Russia has just banned the comedy film “The Death of Stalin,” the first such ban since the fall of the Soviet Union. But the Russian Ministry of Culture also delayed Paddington 2, another children’s tale with a 100% rating on the ratings site Rotten Tomatoes (though that delay was nationalism, apparently to promote a Russian-made film, as opposed to political criticism).

Pavel Pozhigailo, a member of ministry of culture’s advisory council described the film as “blasphemous”. “We don’t have to be a country of masochists,” he said. “This is insulting our national symbols. The trailer goes out using our national anthem and it shows our great war marshals as … I don’t know how else to put it … idiots.”

Perhaps Google, Facebook and other media companies could review these developments before instituting or expanding their own censorship programs against speech the U.S. government might find uncomfortable, “blasphemous,” or “insulting?” There’s just no limit when censorship expands to include the kind of popular advocacy, even though this sort of free(er) expression was one of the key elements in the downfall of repressive regimes such as the Soviet Union.

It may not violate the First Amendment (which applies only to American governments), but it’s still censorship when private companies restrict or discourage advocacy.

Vox: Time for Liberals to Get Over Citizens United

Vox: Time for Liberals to Get Over Citizens United

It takes courage to buck the orthodoxy of your foundational audience, so it’s always nice in these polarized times to see a major publication like Vox offer a somewhat dissenting view from liberal orthodoxy on Citizens United and other progressive dog-whistles on campaign finance reform.  Today Scott Castleton writes: “Repealing the controversial decision is a pipe dream. And there are more promising avenues for campaign-finance reform.”

In 2017, the commissioner of the Federal Election Commission resigned, claiming “since the Supreme Court’s Citizens United decision, our political campaigns have been awash in unlimited, often dark money.” This was the animating sentiment of Bernie Sanders’s 2016 campaign for president; he even went so far as to claim that billionaires are simply “buying elections.”

This idea has given rise to a new liberal battle cry: Repeal Citizens United! Unfortunately, that tactic is naive and misguided, and relies on a misunderstanding of the law and politics surrounding the case. …

Let’s put the hated decision into context. The inundation of elections with private cash is not the result of Citizens but rather was facilitated by the 1976 decision Buckley v. Valeo. That case established the legal framework sanctioning billions of dollars of independent private campaign spending. In it, the Court ruled that limits on campaign donations — direct donations to candidates — are constitutional but said it was unconstitutional to limit non-donation expenditures, such as independently funded advertisements.

 Such independent spending — which cannot be coordinated with candidates, according to the Court — was protected under the First Amendment as not just speech but political speech. The idea is that money is a necessary instrument for supporting a political candidate, whether it’s paying for yard signs or taking out an ad in the newspaper.

Not unreasonably, the Court ruled that limitations on independent expenditures would constitute limitations on one’s ability to support a candidate through any number of media. Placing a dollar limit on such expenditures would arbitrarily prevent certain kinds of campaign support simply by the fact of how expensive they are. …

Citizens simply has not had the seismic legal impact that many think. Since Buckley protected money as speech, the only question was whether corporations were legitimate speakers. It may surprise some to hear, but the Court had already answered this question in 1978. In First National Bank of Boston v. Bellotti, the Supreme Court recognized a corporate right to free speech, concluding that the value of speech in the course of political debate does not depend on the identity of the speakerCitizens simply followed the precedent of these two cases.

So when liberals intone that “corporations aren’t people,” thinking they are making a knock-down argument against Citizens, they miss the point. Citizens did not make corporations persons. And corporations do not need to be persons to receive First Amendment protections. Citizens upheld the liberty, provided by Bellotti, of corporations to speak, and they speak under the rules provided by Buckley.

Castleton then suggests that the remedy for “big money” in politics is to encourage small money donations. He uses the example of small money propelling Bernie Sanders’ 2016 presidential campaign to prominence.

Castleton’s arguments are simplistic and often mis-guided, but at least he’s considering what others deem to be immovable dogma: that maybe censorship is not the answer. Just as with other forms of speech, where the correct answer to “bad” speech is more speech, maybe the answer to “the wrong” people spending “too much” money on elections is to help other people to speak their own minds.

There is another point that Castleton misses entirely: the amount of big money in politics is driven almost entirely by advertising costs. That was true in the correlation between the growth of television ad campaigns and the growth of campaign spending. Yet recent research suggests that, past a certain point, the effectiveness of these ads is zero on voter turnout, and one-half of one percent on candidates’ relative shares of the vote. Enough to affect very close campaigns, but not really a dramatic justification of the costly advertising.

In fact, recent presidential campaigns relative spending did not show an effect on the outcome, with the Clinton campaign and her allies outspending the Trump campaign and its allies two-to-one. The more effective campaigns, Obama and Trump, spent less money, and spent more of what they did spend on highly-targeted digital campaigns or similarly-targeted advertising blitzes.

The reason: the old adage of “half your advertising is wasted, but you don’t know which half” no longer applies in this era of rapid and highly-refined ad targeting. As Advertising Age reported: “And, while broadcast TV retained its dominance, the mass media mainstay of political advertising took a big blow from more targetable and data-driven ad options such as cable TV and digital.”

That dollar-driven trend will likely continue. Meaning that the question is not how much money is pouring into campaigns, but how that money is used.

The Noose Around Issue Advocacy Tightens Again Today: Google Ads Will Require “Verification” to Mention or Show A Candidate or Current Officeholder

The Noose Around Issue Advocacy Tightens Again Today: Google Ads Will Require “Verification” to Mention or Show A Candidate or Current Officeholder

Today the noose begins to tighten more around social media issue advocacy. Facebook is not the only platform censoring content; today Google announced a new requirement for advertisers who want to “purchase an election ad” on Google:

As a first step, we’ll now require additional verification for anyone who wants to purchase an election ad on Google in the U.S. and require that advertisers confirm they are a U.S. citizen or lawful permanent residents, as required by law. That means advertisers will have to provide a government-issued ID and other key information. To help people better understand who is paying for an election ad, we’re also requiring that ads incorporate a clear disclosure of who is paying for it.

Google says its version does not go as far as Facebook’s: it doesn’t also cover “issue ads,” a slippery term not entirely defined by Facebook that can mean almost anything depending on who’s speaking. But Google will likely do so in the near future, depending on its conversations with third-parties: “As we learn from these changes and our continued engagement with leaders and experts in the field, we’ll work to improve transparency of political issue ads and expand our coverage to a wider range of elections.”

Axios has more. For example:

Advertisers can go through the verification process starting at the end of May, and Google will start enforcing the new rules on July 10, the company said.

The new requirements will apply to ads featuring candidates for federal office or current officeholders in the United States.

Google will also start requiring these ads to carry a disclosure that says who paid for them.

So even though Google’s new policy says it doesn’t cover issue ads, it probably does. Many issue ads, as defined by the Supreme Court in Wisconsin Right to Life and Internal Revenue Service rules, deal with legislative issues and say things like “Write your Senator” or “Senator Jones Supports S. 123.” One assumes these would be considered “featuring … current officeholders in the United States.”

Thus, Google now restricts issue ads even without saying so. Illustrating again how difficult it is to limit speech, even in the service of some worthy purpose, without collateral damage that would make such a policy unconstitutional if done by a government subject to the First Amendment.

[Update – Reaction to new Google policy:

Jason Torchinsky, a well-known attorney to many politically-active organizations, writes: 

I think under Google’s policy – with the election related labeling – our non profit clients will have a hard time arguing that any of these ads are purely issue advertisements – no matter when they are publicly released – when they will have an “election related” label right on them.
What happens even during the 2018 lame duck session?  No calls to specific members from non profits that won’t do political activity or are near their limits?
Eric Wang, another well-known attorney to many politically-active organizations and a Senior Fellow at the Institute for Free Speech, writes:

So, voters shouldn’t have to be required to show government-issued ID to vote, but speakers should be required to show government-issued ID when talking about election-related topics (whatever that means).

 In the immortal words of the late James Traficant, “Beam me up!”