Among the bizarrely anti-liberal positions being held by the progressive left, its contortion and rejection of the First Amendment’s protection of free speech is one of the most dangerous and inexplicable. The problem is that its promise of content neutrality by the government means it doesn’t work only in their favor, and as the aphorism goes, if it’s not for them, it’s against them.
David Cole, who’s described only as a lawyer who has argued five First Amendment cases before the Supreme Court, and whose affiliation is otherwise unmentioned at the top of his New York Times op-ed, tries to gently explain why this is wrong.
Have conservatives hijacked the First Amendment?
Critics are increasingly making this claim, maintaining that under Chief Justice John G. Roberts Jr., the First Amendment, once an important safeguard for progressive speech, has become a boon to corporations, conservatives and the powerful.
Cole is the legal director of the ACLU, an organization at the lead in compromising the Constitution for the cause, its legacy shattered for the sake of donations. But Cole is trying to thread the needle of not pissing off the myopic while appreciating that the constitution doesn’t exist as an “important safeguard” only for “progressive speech,” but for speech.
But in most instances, the First Amendment doesn’t favor speech of the right or the left; it simply takes the government out of the business of controlling speakers by virtue of what they say. It often empowers the powerless. And most important, it helps check official abuse.
Of course, that’s one of the problems. Empowering the powerless is great, provided it’s the preferred powerless. Empowering the horrible powerless, as if they get to speak too, violates an article of faith, that only good speech deserves protection. Worse still, bad speech isn’t merely speech, but violence, and violence that silences their speech, denies their humanity, cuts them like a knife with its sharp words.
Cole doesn’t confront the cries of hate speech, or wrongthink. Instead, he soft-pedals that fact that content neutrality protects the good along with the evil.
When the Roberts court ruled that the First Amendment prohibited holding the Westboro Baptist Church liable for displaying anti-gay signs outside a military funeral, its rationale would equally protect Revolutionary Communist Party demonstrators holding anti-Christian signs outside the Westboro Baptist Church.
He is, of course, right to point out that the sword of neutrality cuts both ways, but it’s unavailing. After all, “good” speech is good, so why wouldn’t it be protected? The right message should be spread, but that’s because it’s the right message, not because it’s neutral.
When it comes to “money matters,” Cole takes the issue on squarely.
Some argue that the First Amendment’s very neutrality is problematic, because in an unequal society, the amendment will favor the haves over the have-nots. We all have a formally equal right to speak, but only George Soros, the Koch brothers and a handful of others can spend hundreds of millions of dollars advancing their preferred candidates or positions.
But this argument proves too much. All rights are more valuable for the rich. The rights to have an abortion, to send your children to private school, to exclude others from your property or to hire your own criminal defense lawyer are all more fully enjoyed by people with resources. Social inequality may be a reason to support progressive taxation or robust equal protection guarantees; it’s not a reason to retreat from free speech principles.
As Pappy Greenfield used to say, “rich or poor, it’s good to have money.” Of course, he didn’t have a pot to piss in, so you can see where he was coming from.
Notably, Cole’s defense of the First Amendment isn’t so much an argument favoring free speech as an attempt to smooth over the angst of the progressive left toward free speech. There is no attack on the irrationality of their complaints, the religious-like belief that their speech is good speech and other speech is evil speech. It makes for a facile dividing line, if only everyone would embrace their ideology and accept their dichotomy of right and wrong.
Nor does Cole raise the ugliest of truths, that maybe the progressive left and its dedication to identity politics and hatred for heretics is neither “good” nor “right.” Maybe, just maybe, they don’t sit at the right hand of God and wallow in righteousness. What if, dare I say it, they’re wrong about some things, and what if some of the “bad” speech is not only not bad, but good?
When one party controls all three branches of the federal government, the checks and balances have to come from the people. It’s on us. And it’s the First Amendment that gives us the tools to act — including the rights to speak, associate, petition the government and enjoy a free press.
The irony of this palliative excuse will whoosh over the heads of most readers, but deserves to be pointed out. When one party controls all three branches of government, the people have spoken. The people have been heard. It’s just not your people. But Cole is right that it’s the First Amendment that enables those out of power to challenge the government. It’s not a promise that they will persuade anyone to come to their side, to embrace their ideology, but they get to try.
The fact that conservatives benefit from the First Amendment is not something to bemoan. It is part of the constitutional bargain. It simply means the First Amendment is operating as it should, neutrally preserving the lifeblood of democracy.
The First Amendment to the Constitution doesn’t guarantee you get your way, or the other side doesn’t get its way. It means you get the opportunity to bring others to your cause, to persuade them of the virtue of your views. And so do your adversaries. It guarantees no one hegemony, but the opportunity to express yourself. After that, you’re on your own.