Last week the folks at the New York Times received some unsettling news: people who disagree with them also have constitutional rights. This alarming revelation has left them distraught and prone to hysterical, incoherent typing on the keyboard. What else could explain Adam Liptak’s “How Conservatives Weaponized the First Amendment,” a hopeless mess of sanctimonious self-contradictions and hypocrisy. It’s not even worthy of their op-ed page much less an alleged piece of hard news.
Most disconcerting to Liptak and the sorrowful assortment of legal scholars and activists he quotes is the fact that conservatives think First Amendment rights apply to them too and, even worse, are willing to go court when those rights are violated. This evidently constitutes “weaponizing” in the blinkered world of the Old Gray Lady—not to mention that of Justice Elena Kagan, who used the term to attack her colleagues in her dissent in Janus v. AFSCME. The Supreme Court’s decisions in Janus, striking down mandatory support for public sector unions from nonmembers, and National Institute of Family and Life Advocates v. Becerra, striking down a California law compelling crisis pregnancy centers to advise women on how they can procure abortions (kill their children in the eyes of crisis pregnancy centers), are allegedly the latest fruits of a conservative constitutional arms race.
But the slightest reflection shows this overheated rhetoric to be nothing more than progressive pearl-clutching. Conservatives didn’t weaponize the First Amendment; the authors of the Bill of Rights did. At the core of the American constitutional experiment is the idea that the people are the master and the government is the servant. Thus, when government compels people to speak, as it did in Janus and Becerra, the servant is telling the master what to do. That’s not how self -government works. This principle has been at the core of the Supreme Court’s free speech jurisprudence for almost as long as there has been free speech jurisprudence. The prohibition on compelled speech is so essential that Robert Post, the former dean of Yale Law School, calls it one of three core pillars of the “classic” First Amendment tradition.
But let us imagine that a robust conception of freedom of speech isn’t there and was grafted onto it. Who did the grafting? As the article makes clear, it was the left. In fact, Liptak’s article includes several mea culpas from progressives who regret helping develop the court’s doctrine since people they disagree with have used it to defend their rights. How cheeky of them! Free speech, the article implies, should only be for the powerless, perhaps corporations like the New York Times, not those at the “hierarchy of power,” perhaps crisis pregnancy centers and individual workers tired of seeing their wages forcibly garnished to support massive unions. Of course, the rule of law depends on equality under the law, so what they really are bemoaning is the rule of law itself. Nevertheless, by Liptak’s own evidence, it was not conservatives who “weaponized” the First Amendment, but liberals.
The incoherence doesn’t end there. Citing a 1971 law review article by Robert Bork, Liptak argues that conservatives used to focus exclusively on defending political speech but have allegedly strayed into non-political speech. However, he provides no evidence that conservatives have strayed from this position. The cases that vex him are clearly about political speech. Maybe in the parochial orbit of the New York Times, ending human life in the womb isn’t a political issue, but in the real world it is. Maybe to Liptak, it’s not a political question if individuals are forced to support the political agenda of public sector unions against their will, but people like Mark Janus think otherwise. Or consider education. Even in the controversial Morse v. Frederick (aka “Bong hits for Jesus”) case, Justice Samuel Alito said in his concurrence that he joined the majority decision on the understanding that “it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue.” Liptak also trots out in the usual Pavlovian way the allegedly scandalous Citizens United. But once again, that happens to be about political speech. Normally authors are expected to provide at least some evidence that supports their accusations.
In the end, the piece amounts to little more than a sustained lament that conservative rabble happen to have rights too. The great liberal journalist Nat Hentoff wrote an entire book, Free Speech for Me—But not for Thee, devoted to exposing this kind of hypocrisy from both the left and the right. It’s too bad he’s not here to give this article the send-up it deserves.
— Joshua Dunn
Joshua Dunn is professor of political science at the University of Colorado–Colorado Springs.
Last updated July 2, 2018