Liptak Down: The Last Lawman At the NY Times Falls

For all the ridiculousness of the op-eds that pass muster at the New York Times, one writer held firm from falling prey to the hysteria. While shriekers like Linda Greenhouse would attack the justices of the Supreme Court as cynical tools of their political masters, doing everything she could to undermine the integrity of the least dangerous branch of government, there was still a voice of reason* at the Times who didn’t scream the sky is falling with every decision that didn’t comport with Greenhouse’s feelz. There was still Adam Liptak.

And now he’s gone.

How Conservatives Weaponized the First Amendment

When constitutional rights are reduced to “weapons” because they get in the way, it says nothing of the right and everything about the desired outcome. Sometimes it serves one tribe. Sometimes it serves the other. And when it serves the other, it’s “weaponized”? For fuck’s sake, Liptak.

On the final day of the Supreme Court term last week, Justice Elena Kagan sounded an alarm.

 *  *  *

Conservatives, said Justice Kagan, who is part of the court’s four-member liberal wing, were “weaponizing the First Amendment.”

Justice Kagan wrote this in her dissent in the Janus case, complaining of the majority’s failure to adhere to the concept of stare decisis and overruling Abood.

There is no sugarcoating today’s opinion. The majority overthrows a decision entrenched in this Nation’s law— and in its economic life—for over 40 years. As a result, it prevents the American people, acting through their state and local officials, from making important choices about workplace governance. And it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.

It was a poor, if fashionable, way to express her position. What she did not say is what Liptak says.

The two decisions were the latest in a stunning run of victories for a conservative agenda that has increasingly been built on the foundation of free speech. Conservative groups, borrowing and building on arguments developed by liberals, have used the First Amendment to justify unlimited campaign spending, discrimination against gay couples and attacks on the regulation of tobacco, pharmaceuticals and guns.

Free speech was glorious when it served to further the agenda of one tribe, but when they pushed beyond its limits to accomplish by lawfare what it failed to achieve through the legislative process, it turned dark, ugly and . . . conservative?

Many on the left have traded an absolutist commitment to free speech for one sensitive to the harms it can inflict.

Take pornography and street protests. Liberals were once largely united in fighting to protect sexually explicit materials from government censorship. Now many on the left see pornography as an assault on women’s rights.

The First Amendment didn’t change. All the same words are there, as before. Free speech didn’t change. All the same arguments and rationales remain. What changed is the rhetoric of the left, from civil liberties to “harms it can inflict.” Who does Liptak turn to explain this?

“When I was younger, I had more of the standard liberal view of civil liberties,” said Louis Michael Seidman, a law professor at Georgetown. “And 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.”

What exactly constitutes a “more just society,” one that achieves fantasy outcomes or one that secures liberty for all?

To the contrary, free speech reinforces and amplifies injustice, Catharine A. MacKinnon, a law professor at the University of Michigan, wrote in “The Free Speech Century,” a collection of essays to be published this year.

“Once a defense of the powerless, the First Amendment over the last hundred years has mainly become a weapon of the powerful,” she wrote. “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.”

Not that MacKinnon hasn’t made a career of espousing irrational nonsense, but Liptak offers her vision of free speech only for people and purposes she favors? Of course free speech can “reinforce and amplify” injustice. And justice. And everything in between. And whether it’s injustice or not isn’t left to MacKinnon, or Liptak, to decide for the rest of us.

Justice Kagan said the court’s conservatives had found a dangerous tool, “turning the First Amendment into a sword.” The United States, she said, should brace itself.

“Speech is everywhere — a part of every human activity (employment, health care, securities trading, you name it),” she wrote. “For that reason, almost all economic and regulatory policy affects or touches speech. So the majority’s road runs long. And at every stop are black-robed rulers overriding citizens’ choices.”

Citizens’ choices aren’t reflected in the nuttery of Catharine MacKinnons, and are outside the jurisdiction of black-robed rulers. The Supreme Court’s burden is to protect the constitutional rights of all, and efforts to re-engineer freedom to align with “a more just society” is precisely what the First Amendment, what our Constitution, exists to prevent.

It seemed that Liptak understood this and appreciated that the protection of civil liberties would be enforced against whichever side was trying to undermine them. No longer.

*As much as you may disagree with the judicial philosophy, the interpretative perspective, the inherent value judgments, of justices of the Supreme Court, what you cannot legitimately do is deny their integrity. Even Clarence Thomas, arguably the least accomplished of the justices and the most dubiously qualified for the post, deserves better than to be denigrated. You can disagree with him about everything (Sam Alito, too), but to deny his integrity because he’s “so awful” is wrong.

48 comments on “Liptak Down: The Last Lawman At the NY Times Falls

  1. paleo

    This is not the first anti-1A opinion piece that the NYT has published. Watching an entity that is totally dependent on the First Amendment for it’s very existence advocate against it is….well, it leaves me speechless. I don’t know what to say. Their lack of self-awareness is stunning.

    And Catherine MacKinnon? Wonder what she thinks about the Constitution’s due process protections and what her advocacy has accomplished relative to their use by the powerful against the powerless?

    1. SHG Post author

      Of course it’s not the first “anti-1A opinion piece” in the Times. The post expressly said that. Dozens of posts here said that. Stop taking drugs.

      1. John Barleycorn

        Stop weaponizing your desires… Without a swing vote “drugs” are destined to become a 1st amendment slam dunk don’t ya think? And not just the ones on them TeeVee commercials that are good for your vagina or bonner either.

        Speaking of which I am going to need some representation seeing as how my county determined on Tuesday that me sending smoke signals during “no-burn days” is illegal.

        Something or another about them wanting to control the particulate matter in the message blah, blah, blah…

        Anyway, what I really need to know is whether or not I should comply or wait until Jared and Ruth have their fling, seeing as how Neil ain’t no opera fan, just to make sure ?

  2. Hunting Guy

    George Orwell.

    “So much of left-wing thought is a kind of playing with fire by people who don’t even know that fire is hot.”

  3. MollyG

    The First Amendment becomes weaponized when it is used inconstantly or to deprive others of rights. The article was poorly written by the concept is valid. An example is when SCOUTS says that it is a violation of the First Amendment for states to require fake abortion clinics to tell the truth about their services, but it is not a violation for states to require real doctors to make false statements to their patients. It is not tolerable for a baker to sell cake to a gay couple, but when a presidential candidate says he will ban Muslims, then does it, it is ok. SCOTUS interprets part of the First and Second Amendments very strictly, yet continuously guts the Fourth, Fifth, Sixth, Seventh and Eighths Amendments. I would have much more tolerance with strict interpretation of the Bill of Rights if it was consistent.

    1. SHG Post author

      I can appreciate that the concepts can be hard to understand, particularly to non-lawyers, and even disputable, but when your arg relies on basic falsehoods, then there’s nothing much to discuss.

      This is one of the most unfortunate problems with partisanship and ignorance, people believing that they can present their fantasy worldview and others should engage in discussion under their terms. It doesn’t work that way and nobody wants to play in your delusion.

        1. SHG Post author

          Not my job. You can want to know. You can want to fly. You can want to play for the NY Knicks. Not my job. Fix your own ignorance.

          1. Sgt. Schultz

            So you’re saying idiots aren’t entitled to more of your time to explain to them why they’re fucking idiots? That’s hurtful, especially when they want to know. If they want to, you must acquiesce. The stupider they are, the more you must give. Don’t be a hater.

            1. SHG Post author

              Ima lock you, Molly and Robert in a room to discuss how mean I am. And if Jake shows, he’s going in there too.

            2. MollyG

              I am not an idiot. I spend more time reading law blogs and court decisions then most lawyers spend in law school because I want to be more informed. My examples (while simplified for space) are from SCOTUS dissents or other well respected law blogs. The inconsistent interpretation of the Constitution for partisan gain is a real issue.

            3. SHG Post author

              Self-assessment is notoriously unreliable. Maybe we can move on to something not about your feelz now? Thanks for playing.

            4. Sgt. Schultz

              I’ve been reading med texts and well-respected med blogs for longer than most neurosurgeons were in med school. Want me to operate on your brain?

              You don’t grasp the holdings (Robert kinda does, but not too much) of the cases you raise, or the facts (which you present with absurdly loaded words that turn your characterizations into lies) and then have the nerve to demand that SHG waste his time explaining it to you, like some entitled asshole?

              Maybe you’re not an idiot. Maybe this is the absolute best you can be. Still, no one wants to play with dishonest people any more than idiots.

            5. SHG Post author

              Enough beating up on MG. I should have trashed her initial post rather than start this death spiral. Yet again, I regret being nice to commenters.

    2. Robert

      The Travel Ban case was not a First Amendment case—it was, essentially, an administrative law case (I.e., did the Executive ban exceed the authority Congress delegated to it in 8 USC 1182(f)). I am not a Supreme Court Justice, but I would have adhered to the Avoidance Doctrine and ended the opinion there, without broaching any constitutional discussions.

      Concerning Masterpiece Cakeshop, all that was held was that the baker gets a less overtly disparaging Colorado Board to rehear the case; the Court did not reach the 1A merits. (Heh, I can’t imagine how the particularly disparaging Board Member felt seeing the Court explicitly call him/her out for her remarks).

      And concerning the abortion clinic speech, doctors can be compelled to give the information you reference because the state strictly regulates them through a professional licensing scheme.

          1. Your mother, fool. But really, Maurice, pursuant to the clause concerning "attacks [and using a] real name.

            And your just an asshole. You may be smarter than me, but I’m informed enough to know an asshole when I see one. MG made an argument. You (and sarge) determined it to be wrong. She asked for clarification, and you dismissed her to own devices. You’re right, her ignorance of the cases is not you’re problem, but what’s the big deal in providing a brief explanation? I guess your goal is to know everything and criticize those who don’t. Probably makes you feel really good about yourself. You seem like the type of person who, because in real life you wouldn’t dare talk to people as you pompously do on the internet, create an online world where, rather than learn how to deal with people civilly and with some social wherewithal, you scream and rant, insult, badger, and laugh to your lonesome self about the results, But I don’t know you so, I’ll stick with the words “you seem like” instead of “you are”. What’s the ultimate example of pettiness, I might add, is after dismissing her, then saercastically coming to her aid, you interject in a conversation that you were no party too (albeit on your blog), where MG was feeling solace in an answer which (in her mind) on its face seemed correct, not to finally chime in with a clarification, but only to badger her some more. So is this the tough love approach you learned from your professors who “didn’t give a damn about what you thought”, or are you really the asshole as describe above?

            1. SHG Post author

              You’re right that I was unnecessarily harsh on MG. You’re wrong that I owed her an explanation, just as I don’t owe you an explanation for why I don’t run this place the way you think I should. And I appreciate your (and Kieth’s) coming to MollyG’s defense because I was an asshole toward her.

              The rules for commenting are for commenters. I’m not a commenter. This is my home and she, and you, are here at my sufferance. Most people here understand that. If you don’t, no one forces you to come here.

            2. Sgt. Schultz

              Nope. Not buying this bullshit. Someone walks into your living room, takes a dump on the floor and demands the homeowner clean up the mess? And you bitch that the homeowner was an asshole about it?

              This is a law blog, not a shit-for-brains blog. Your lame attempt at analogizing this to teaching is nonsense. MG isn’t SHG’s student. She doesn’t pay for his time to explain why her aggressive false assertions are wrong. It’s not just that he’s under no duty to coddle the clueless, but that the magnitude of effort required to undo the typical progressive lies makes this far bigger burden for SHG to clean up MG’s mess than for MG to spew bullshit in the first place.

              He doesn’t work for her. He doesn’t work for you. You contribute nothing here, yet you think you get to make the rules and call him an asshole? Nope, not buying at all.

            3. SHG Post author

              I might interject to mention that the burden is multiplied by a substantial number of non-lawyers who want to argue whatever shit is in their head, but apparently that would be wrong of me on my own blog.

    3. non-lawyer nobody

      “require fake abortion clinics to tell the truth about their services”
      “tolerable for a baker to sell cake to a gay couple”
      “presidential candidate says he will ban Muslims, then does it”

      None of what i quoted of your post is accurate even a little bit. You don’t see your own emotionally loaded word usage and didn’t read the decisions, because otherwise you wouldn’t characterize it the way you did.

      1. SHG Post author

        My preference is not to enable comments like MG’s by explaining why it was wrong. Much as I appreciate your effort, it’s MG’s job to get her facts and law straight. And when someone is as flagrantly wrong as MG, the problem isn’t acts and law, but bias and ignorance. I’m not a fan of enabling that either.

        1. Keith

          Don’t be so harsh on MG. It’s not like this stuff is easy and the road to understanding it has to start somewhere.

          Keep reading, MG.

          1. SHG Post author

            Whether MG reads or not is up to MG. But flagrantly dishonest comments are not a good place to start.

          2. David

            Spew lies, get slammed. MG ain’t special. Would you prefer a law blog of a blog of ignorant bullshit by partisan morons?

            1. SHG Post author

              We’re at the point where there’s very little in the comments that illuminates anything relating to law anymore.

  4. Robert

    Looks like Trump has driven them all crazy.

    Assuming this and the other 1A editorials represent the core Democratic Party approach to speech, I might just abstain from voting for them as I once could be relied upon to do.

    I don’t want to see a political push for the expansion of narrowly-drawn speech exceptions. I don’t want the social policing for SJW-compliant language to be interpreted into the Speech Clause. I don’t want to give the government the precedent necessary to dial the clock back to pre-Roth and ONE Inc. days and re-censor the distribution of boy mags in the mails (well, their electronic equivalents, anyways).

    And, really, just as paleo notes, how unaware can the NYT be? They *depend* on a robust reading of the Speech Clause. The NYT cries about how *Trump* attacks journalists, but if their 1A views become constitutional law, that would be a disastrous self-pwn for them. It reminds me of the fellow who went on record in The Rolling Stone saying that nuclear war might not be such a bad thing if it results in a political course correction (which I take to mean Trump being voted out).

    Liptak and the NYT’s TIV (Trump Insanity Virus) has now progressed to full-blown TDS.

    1. SHG Post author

      So now that we’ve got delusions from the left, we get delusions from the right. This is a PSA: take your partisan delusions to reddit. If you can’t control the impulse to expose your right or left delusions, your comments will be trashed.

  5. Patrick Maupin

    The First Amendment has been weaponized? Great! Glad to hear it. What’s the problem, again?

    1. SHG Post author

      Weaponized is a negative word, making it sound mean and harmful. Why not smurfized, making it sound short and blue?

      1. Patrick Maupin

        As long as it’s not large and purple, singing a repurposed “This old man” in a nasally voice.

  6. Richard Kopf


    I read Liptak’s article after I read your post. Buried deep down is a nut of truth that Liptak missed. It has nothing to do with the First Amendment, and everything to do with the role of the Court in our lives.

    Law writ large has been weaponized when it comes to large public policy issues about which judges and justices have no expertise. It started long ago (Lochner), found its footing during the new deal, blossomed under Earl Warren, and morphed into plain “us and them” in recent decades. Even though they may have been disingenuous, conservatives used to speak of judicial restraint. No more.

    To coin a phrase stolen from Justice Kagan, the nine are all activists now. And so will be the new one. The passive virtues are passé and that is precisely why Brother Liptak misunderstands what he is seeing. Both sides have turned the Court into a weapon. It is no longer the least dangerous branch. A realist wouldn’t have needed a front-page NYT article to see what is and has been in plain sight for all of my life.


    * I agree that none of the Justices are hacks. They’re just smart lawyers, but mere lawyers nevertheless, trying to do their best in a job that is often none of their business.

    1. SHG Post author

      Today, I saw a great many young people, woefully ignorant but filled to the brim with the certainty that the Supreme Court was illegitimate, and subordinate courts as well to the extent they didn’t toe the progressive line, because people like Liptak, Toobin, Greenhouse, Tribe, et al., have been telling them that it’s all a sham, that these judges are all whores blowing their political masters. And they believe it, absolutely.

      Your comment is somewhat nuanced, and I understand that your speaking to competing ideologies and philosophies, honestly held but in open conflict on certain issues. However, a comment like this is susceptible to gross misinterpretation, proof that their beliefs that the justices are partisan scum to be ridiculed and reviled for any decision that doesn’t comport with their ideology. I see your footnote, which somewhat addresses their good will, but still taints the justice with too much, and too little, smarts.

      Lawyers understand they’re human and subject to the same foibles as the rest of us. But I implore you to be truly careful so that you don’t feed the idiocrisy. If I was the next nominee, I would wear a bulletproof vest. That’s how crazy people are getting and it only takes one nutjob with a gun to kill. As for SCOTUS, I’ve ripped them to shreds for decisions over the years, but once they lose their legitimacy, we’re fucked. And they are well on the way to losing their legitimacy, thanks to Liptak etc.

      1. Richard Kopf


        One additional thought.

        Perhaps the best way to look at the Court is to consider that its the only institution of government that absolutely requires competing actors to articulate their views in a highly reasoned way. So, while I wish there was less of it, at least we can take solace in the fact that stunningly brilliant lawyers and truly decent people, turned Justices, must articulate their positions at a high level or suffer the consequences of disdain. Dolts don’t survive in that milieu. At the Court, feelz is never enough. Highly sophisticated argumentation, both oral and written, is the coin of the Court’s realm.

        I am willing, grudgingly, to a take what I can get. Thanks for the reminder.

        All the best.


  7. Rigelsen

    “Even Clarence Thomas, arguably the least accomplished of the justices and the most dubiously qualified for the post, deserves better than to be denigrated.”

    I’ve seen similar and often worse “judgements” about Clarence Thomas, but the actual arguments are a mix of mere disagreement and emotion-heavy assumptions bordering on shallow racism. You can disagree with Thomas, and since he is generally among the clearest writer of the Justices, and most diligent in separating assumption and derivation/logic, it is easy to decide what you agree or disagree with. Compare that to Sotomayor, for example, whose writing is hard to distinguish from that of a polemicist even if you happen to agree with her on the merits. Or even if you disregard the Wise Latina who seems to regard her role more that of King Solomon rather than a member of a third co-equal branch, it is a refreshing change from the consequentialism and resulting muddled reasoning of much of the rest of the SCOTUS opinions.

    I only point this out because lines like this, throwaway they may be, betray a similar irrationality to that you seem to decry in others. And you may decry his denigration, but isn’t this denigration too?

  8. Appellate Squawk

    “In my court I decide all First Amendment cases by determining which side represents the Powerless. I determine Powerlessness (downtroddeness, vulnerableness, marginalizeness, voicelessness, etc.) with a 12-factor test which inter alia requires that they not make more money than I do.”
    All the best,
    Wool, J.
    Justice of the Court of Utterances and Nuisances

  9. Bryan Burroughs

    Wow. It’s kind of horrifying to see a Supreme Court justice bemoan that the 1st Amendment is being used to prevent the government from squashing free expression and speech. “Weaponizing the First Amendment” is not something that should be coming out of the mouth (or pen) of a Supreme Court justice.

    Even sillier that she complains that it’s being done to intervene in economic and social policies put forth by the government. Would she be so keen to make that argument if the policy in question involved preventing Muslims from wearing head-scarves in public, or would she rightly see that policy must conform to the Constitution?

    1. SHG Post author

      The problem with using a phrase to trendy and meme-prone is that to the extent it was intended to be nuanced, they’re no change of that being the result. Kagan may have realized this, which makes it more disturbing.

  10. Pingback: The free-speech crackup | LIKELIHOOD OF CONFUSION™

  11. SH

    What did Liptak write that was objectionable? I kept waiting to read a normative statement from him, as opposed to the people he quoted, and couldn’t find one. Did I not read carefully enough?

    1. SHG Post author

      You’ve answered your own question without, apparently, realizing it, although there are normative statements from Liptak, most notably the conclusion, which show his conclusion. Bear in mind, this isn’t an op-ed, but a front page news story.

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