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.
Vox PPLI 