Conservatives Wouldn’t Have to ‘Weaponize’ the First Amendment If Liberals Didn’t Keep Violating It

New York Times building / Getty Images
New York Times building / Getty Images
• July 3, 2018 6:14 am


The New York Times appeared to make an error in this Saturday's print edition. An op-ed piece headlined "How Conservatives Weaponized the First Amendment" was published on the front-page and not labeled as an opinion piece. The piece was mistakenly bylined to the Times' Supreme Court reporter Adam Liptak, rather than some sort of editorial writer.

The alternative is that the New York Times believes it's a verifiable, objective fact that conservatives are "weaponizing" the First Amendment. That'd be a good question for the public editor, if they hadn't axed that position.

The general thesis of the piece is this: once, the First Amendment was once used primarily to protect liberal speech and policy goals. Today, it is more often used to protect conservative speech and policy goals. This is the evidence conservatives on the Supreme Court are "weaponizing" the First Amendment (borrowing the phrase from a recent dissent by Justice Elena Kagan), and that is A Bad Thing.

The fig leaf for pretending this is an article rather than an op-ed is an analysis commissioned by the New York Times that purports to show that the Roberts Court "has been far more likely to embrace free-speech arguments concerning conservative speech than liberal speech" than prior courts.

Let me begin by saying I'm highly skeptical of the study the Times cites. It's based on an earlier study (which Liptak also uncritically passed along) that aimed to categorize the speaker in virtually every Supreme Court free speech case as either liberal or conservative. But few free speech cases fit nicely into a conservative-liberal dichotomy, and researchers had to make judgment calls about which tribe a litigant fell into.

The Roberts Court heard free speech cases about a pit bull enthusiast selling videos of dogfights, video game developers who make violent video games, and a father offering naked pictures of his daughter. Who's "liberal" and who's "conservative"? The study the Times analysis is based on dubiously decided that the Roberts Court ruled against "liberal speech" by siding against the pedophile and for "conservative speech" by protecting violent video games and the dogfight videos, even though no one could credibly claim the liberals and conservatives on the court empathized with their alleged ideological peers. When dealing with such a small subset of cases—the analysis claims Roberts Court only ruled on "liberal speech" 14 times in nearly as many years—even a handful of sketchy classifications drastically swings the percentage of free speech victories.

But supposing it is true that the Roberts Court is issuing more rulings protecting conservative free speech, I think the study misses why. The actual win rate of conservative speech claims before the Roberts Court is well in line with past courts—and lower than the liberal and more moderate Warren and Burger Courts. The extent of conservative "weaponization" appears to be that the number of those sorts of conservative speech cases taken up has steadily increased since the Warren Court. But that's only a sign of bias if you assume that the percentage of cert-worthy free speech cases that favor liberals/conservatives ought to remain static year-to-year, rather than fluctuating with our political culture.

In short, the Times failed to consider a possibility: perhaps the Supreme Court shifted from almost exclusively protecting liberal speech to mostly protecting conservative speech because conservative speech is now more likely to actually need protecting.

The Warren Court ruled during the height of the Cold War, when conservative elements argued that communist, civil rights, anti-war, and other forms of left-wing speech represented threats to the security of the nation. When the Warren Court defended speech, it was from attempts to ban the Communist Party (Yates v. United States), to compel loyalty oaths (Speiser v. Randall), to force the NAACP to disclose its members (Bates v. City of Little Rock), to censor gay pornographic magazines (Manual Enterprises, Inc. v. Day), to force black protesters to disperse (Edwards v. South Carolina), to force Communists to register with the government (Albertson v. Subversive Activities Control Board), and to punish those who affiliated with them (United States v. Robel).

But the Cold War is over. The Red Menace is no longer public enemy number one unless the subject is email hacking, and the level of conservative support for silencing radical speech simply doesn't exist to the same extent it once did. The last real gasp of old-school conservative censorship and a sign of the times to come was the 1989 case of Texas v. Johnson, in which young guns Antonin Scalia and Anthony Kennedy defected from Chief Justice William Rehnquist (who throughout his career supported free speech claims a shockingly low 25% of the time) and offered constitutional protection to flag desecration. Classical liberal defenses of free speech are now all but gospel among today's conservative intelligentsia.

Now the shoe is on the other foot. In many parts of the country, it's now traditionally conservative beliefs that are afforded pariah status. To my knowledge, there are no laws in conservative states requiring businesses to produce anti-gay marriage speech, requiring abortion clinics to refer patients to pro-life centers, or requiring pro-choice protesters to remain thirty feet away from a pro-life organization. There were liberal equivalents to all three in blue states that were struck down by the Roberts Court. Gone are the days when the state tried to punish pro-gay-rights speech; welcome to the age where the state tries to punish calling trans people the wrong name.

Are there still conservative localities out there still trying to stifle speech they don't like? Almost certainly. The difference is the free speech violations above all had support and backing from the ACLU, Planned Parenthood, NARAL, NAACP, Human Rights Council, Southern Poverty Law Center, and other major, powerful liberal organizations. The anti-free speech arguments were accepted by left-leaning judges on the First and Ninth Circuit Courts, the Colorado Court of Appeals, and yes, even the Supreme Court. The conservative legal institutional support for censorship is virtually nonexistent. Liberals, on the other hand, seem pretty cool with curtailing speech they don't like.

Indeed, the Times piece cites several liberal law professors who state openly that when free speech butts heads with progressive policy goals, free speech should give way. "I’ve gradually changed my mind about it. What I have come to see is that it’s a mistake to think of free speech as an effective means to accomplish a more just society," says Georgetown Law professor Louis Seidman. Seidman is the author of an upcoming Columbia Law Review article called "Can Free Speech Be Progressive?", a question he answers in the negative.

"Once a defense of the powerless, the First Amendment over the last hundred years has mainly become a weapon of the powerful. Legally, what was, toward the beginning of the 20th century, a shield for radicals, artists and activists, socialists and pacifists, the excluded and the dispossessed, has become a sword for authoritarians, racists and misogynists, Nazis and Klansmen, pornographers and corporations buying elections," laments University of Michigan law professor Catharine A. MacKinnon.

The Times article portrays the liberals who voice such anti-free speech sentiments as a "result" of the Roberts Court's numerous protections of conservative free speech. It never stops to contemplate they might be the cause.

Published under: First Amendment, New York Times