The announcement of the Knight Columbia First Amendment Institute was encouraging, even if its first foray into the courts seemed a bit petty. Enough so that I expressed an interest in being involved, which was summarily ignored by Jameel Jaffer. Fair enough, though it would have been nice if he replied.

In any event, when the word came out that Knight/Columbia was holding a First Amendment symposium, that sounded interesting, and indeed it was, but not in the way I would have expected. The title was curious:

A First Amendment for All? Free Expression in an Age of Inequality

Is this the Age of Inequality? Much as inequality may still exist, has there been any age more dedicated to, if not obsessed with, equality than this? Still, free expression is a fundamental virtue of the First Amendment. So where was this going?

A growing chorus of judges, lawyers, and journalists have called attention to a “Lochnerian” turn in First Amendment doctrine, as the federal courts have increasingly invalidated or narrowed regulations of socio-economic power in the name of free speech or the free exercise of religion.

What is a “Lochnerian” turn to the First Amendment? The Lochner part refers to a 1905 Supreme Court decision, Lochner v. New York, holding that the liberty interest of the Fourteenth Amendment precludes the government from creating regulations that impair the right to contract.

While many legal scholars have offered criticisms of First Amendment Lochnerism — the use of the First Amendment to entrench social and economic hierarchy — there have been few efforts to describe or defend the alternative: a First Amendment that would advance, rather than obstruct or remain indifferent to, the pursuit of social and economic equality. There has likewise been very little commentary connecting First Amendment Lochnerism to broader changes in the institutional landscape of free expression, including the proliferation of private platforms that facilitate and filter public debate.

The explanation offered, that it means “the use of the First Amendment to entrench social and economic hierarchy,” may have received little commentary for a good reason. The First Amendment is content neutral, and it can be used by anyone to promote anything because it merely provides the mechanism that prohibits the government from silencing disfavored messages. No big deal, one would think.

But this symposium’s purpose is dedicated to not merely distorting the First Amendment, but to provide a “how to” guide to abuse the Amendment to achieve a specific goal.

A First Amendment that would advance, rather than obstruct or remain indifferent to, the pursuit of social and economic equality.

Are social and economic equality good goals? To some, certainly, and many wouldn’t spend too much energy parsing the details for why “economic equality” emits an odd smell of socialism. But Knight/Columbia isn’t asking whether this should be the goal, but how to make the First Amendment into a tool of social justice.

In asking where the First Amendment goes from here, this symposium aims to break down barriers between different scholarly subfields — connecting high-level questions about the First Amendment’s meaning and function with emerging problems in areas such as Internet law, media law, labor law, antidiscrimination law, campaign finance law, and commercial speech.

More fundamentally, it aims to move First Amendment theory and practice away from critiques of past judicial rulings and toward the more affirmative project of redesigning the law of free expression for a present and future of mounting economic inequality and authoritarian challenges to democratic norms.

Much as the thrust of this symposium seems to be “how can we take the promise of Free Speech in the First Amendment and twist it into Free Speech we like and the silencing speech of we don’t,” they’ve raise an interesting weapon to do so. And to demonstrate the problem, the artfully phrased question posed here will be applied to some other Amendments in the Bill of Rights beginning with the letter “f.”

A Fourth Amendment that would advance, rather than obstruct or remain indifferent to, the pursuit of protesting victims from the scourge of the opioid epidemic.

After all, wouldn’t it be far easier for police to stem this blight if they could break down doors at will in search of grandma’s Oxy? Don’t you care about the people dying from overdoses?

A Fifth Amendment that would advance, rather than obstruct or remain indifferent to, the pursuit of rapists now allowed to hiding behind the protections of due process.

Shouldn’t we end the campus epidemic of sexual assaults, not to mention dirty jokes, that’s given PTSD to co-eds across the nation and can’t be stopped if the accused are allowed to defend themselves by proving the “survivors” might be telling “their truth” despite the facts?

It’s that easy to wrap a constitutional amendment up in words that create the impression of societal virtues, the sort of intellectual game played to undermine the right to achieve the result. Academic Mary Anne Franks has shamelessly lied about the scope of the First Amendment for years, and few academics have shown the fortitude to call her out on it, whether from fear of being marked as unwoke or because they’re far greater believers in the cause than constitutional rights.

But why a symposium dedicated to ways to subvert the constitutional protection of free speech for the purpose of promoting one side’s political cause? There is significant power in having academics write scholarly papers for the purpose of crafting a rationalization to censor speech they despise. So what if protecting hated speech was the purpose of the First Amendment, since speech people like requires no protection?

There is a deeply disturbing answer to why there is a need for a symposium of this sort. In the marketplace of ideas, speech supporting notions such as “social and economic equality” hasn’t prevailed. There is stupid opposition, as reflected in the platforms given people like Milo and Richard Spencer, and there is thoughtful opposition as reflected by Christina Hoff Sommer and many others.

While the former tends to be the target of why “bad speech” needs to be “no-platformed,” it’s the latter that poses a far greater threat to those who demand speech antagonistic to social justice be silenced. If you want to know how to twist your rhetoric to prevent intelligent discourse that demonstrates your ideology to be untenable and vapid, then this is the symposium for you. After all, if you can’t squander your scholarly cred on distorting the Constitution, what good is there in being a woke academic?