The Left celebrates July 4 by denouncing the First Amendment

Thursday, July 05, 2018 by

It is not news that the Left wants to shut us up. But now the leading publication of the mainstream Left is openly coming out against the First Amendment.

(Article by Robert Tracinski republished from

The biggest news this week is that the Left has officially turned against the First Amendment and freedom of speech — and just in time for the Fourth of July!

If you’re on the Right, it is not news that the Left wants to shut us up. The only change is that this goal is being announced openly in the leading publications of the mainstream Left, specifically in a long article in The New York Times warning about “How Conservatives Weaponized the First Amendment.” Weaponized. That’s right, they’re giving the First Amendment the same treatment they gave the Second. Does free speech seem as scary and dangerous as an AR-15 yet?

So what’s wrong with the First Amendment? It protects people the Left doesn’t like. No, really, that’s the argument.

On the final day of the Supreme Court term last week, Justice Elena Kagan sounded an alarm. The court’s five conservative members, citing the First Amendment, had just dealt public [employees’] unions a devastating blow. The day before, the same majority had used the First Amendment to reject a California law requiring religiously oriented ‘crisis pregnancy centers’ to provide women with information about abortion. Conservatives, said Justice Kagan, who is part of the court’s four-member liberal wing, were ‘weaponizing the First Amendment.’

The article laments that free speech arguments at the Supreme Court used to mostly protect speech by people on the Left.

‘Because so many free-speech claims of the 1950s and 1960s involved anti-obscenity claims, or civil rights and anti-Vietnam War protests, it was easy for the left to sympathize with the speakers or believe that speech in general was harmless,’ [Frederick Schauer, a law professor at the University of Virginia] said. ‘But the claim that speech was harmless or causally inert was never true, even if it has taken recent events to convince the left of that.’

So now — the horror! — “free-speech claims” are being used to protect Christians and corporations and people who don’t like being forced into unions, and how dare anyone stand up for those people.

The Times even went so far as to commission a study counting the number of times the Supreme Court has ruled in favor of “liberal speech” and “conservative speech.” This is a highly dubious exercise, since there is a good deal of subjectivity in deciding which speech is “liberal” and which is “conservative,” and the study is so vague about its criteria (and the resulting Times article even more so) that its assertions are meaningless. Warren Henry notes that a similar study — more about that in a moment — counts rulings upholding the imprisonment of anti-war activists during World War I as “anti-progressive,” despite the fact that these cases were prosecuted by the Progressive hero Woodrow Wilson.

Yet anyone on the Right can venture a guess as to why the Supreme Court has seen more cases involving “conservative speech” in recent years and decided more frequently in favor of them. With the advent of crusades against “hate speech,” people on the Right are more likely to be targets of attempts to suppress their speech.

The glib answer here would be to chalk this up as a generational difference between the old “liberals” who preened themselves on their dedication to free speech, and the authoritarian political correctness of younger “progressives.” But the old liberals’ dedication to free speech was always a more pragmatic and instrumental than they liked to admit.

You can see this in the complaints in The New York Times article from the very same old liberals who pioneered free-speech arguments in defense of left-leaning advocacy groups or anti-war political candidates, who are now appalled that these same arguments are being used on behalf of corporations and conservative political activists. Back in the day, old liberals like John F. Kennedy talked about how “freedom is indivisible,” so that in defending the freedom of one man, you are defending the freedom of all. Now the fact that freedom of speech protects everyone is considered a problem with First Amendment jurisprudence.

In short, many of the old liberals fought for free speech largely because they wanted to protect people like them from overbearing authorities. But now people like them are the overbearing authorities. Consider the recent Masterpiece Cakeshop case, which was decided based on the way members of the Colorado Civil Rights Commission spoke contemptuously of a baker’s Christian faith before imposing a fine on him. Now that the Left holds power, they chafe at any restrictions on their authority.

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