Supreme Court

Has the First Amendment Become a 'Conservative' Legal Cause?

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The U.S. Supreme Court is hearing a series of cases this term that raise fundamental questions about the scope of the First Amendment, including in such areas as mandatory union dues for public-sector employees, aggregate campaign spending limits during election season, and the health care law's so-called "contractive mandate."

At the Los Angeles Times, Supreme Court correspondent David G. Savage argues that the common thread uniting these disparate cases is the presence of conservatives activists seeking to vindicate their rights against the government. "For decades, liberals wielded the 1st Amendment to protect antiwar activists, civil rights protestors and government whistle-blowers," Savage writes. "These days, however, the Constitution's protection for free speech and religious liberty has become the weapon of choice for conservatives."

In a broad sense, that sounds right. Most people tend to view antiwar speech as a liberal cause and view campaign finance speech as a conservative cause. But the details become more complicated when you take a closer look. Citizens United v. Federal Election Commission (2010), for example, the most famous—some might say most infamous—ruling in favor of broad First Amendment protection for political speech against campaign finance regulation, was also endorsed by the American Civil Liberties Union, which filed an amicus brief on behalf of the conservative non-profit corporation Citizens United. Does that stamp of approval by the ACLU make Citizens United a liberal case?

The same analysis holds true for the issue of unpopular speech during wartime. Let's reach a little further back in history and consider the case of Eugene Victor Debs, radical labor activist and perennial Socialist Party candidate for the presidency. In 1918 Debs was arrested under Woodrow Wilson's Espionage Act on charges of interfering with U.S. participation in World War I after he gave an antiwar speech. Debs ultimately spent three years in federal prison for committing that "crime."

In 1919 the Supreme Court issued a decision on his case. Because he spoke out against the war, the Court argued, Debs had effectively sought "to obstruct the recruiting and enlistment service of the United States." His conviction was upheld. The opinion was written by Justice Oliver Wendell Holmes, a hero to the Progressive Movement who is still admired today by many prominent liberal figures, including Justice Elena Kagan, who cited Holmes as a judicial role model during her 2010 Supreme Court confirmation hearings.

By contrast, one of the loudest voices raised on Debs' behalf was that of the journalist and critic H.L. Mencken, who is nobody's idea of a left-winger. Indeed, Mencken despised Debs' socialist views, yet knew perfectly well Debs was being railroaded by the government and deserved to be set free.

My point is that First Amendment cases often fail to conform to a binary left-right divide, and that's because both sides of the political spectrum are willing to accept the use of government power to silence certain voices at certain times.

NEXT: Anti-Biotech Opposition to Golden Rice Has Cost 1.4 Million 'Life Years' in India Alone. Will Anyone Be Held Accountable?

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  1. that’s because both sides of the political spectrum are willing to accept the use of government power to silence certain voices at certain times

    Which is a more complicated way of saying that neither side has any true interest in free speech; only when it’s useful to them. People need to remember that.

    1. The same holds true for those who pick and choose which rights / amendments they would defend or violate. They have no respect for any of our rights. The ones they defend today to further their agenda they would quickly trample tomorrow if it served them.

      1. I didn’t read enough. You said that regarding 1st A rights. I mean it more broadly to include all rights.

    2. Ari Fleisher = “Watch what you say”

  2. My point is that First Amendment cases often fail to conform to a binary left-right divide

    Root, yesterday you referred to Rand Paul as going “left-libertarian” in opposing NSA implying that 4th Amendment concerns do conform to a binary left-right divide

    1. No crap.

      For a magazine called reason they sure are unreasonably inconsistent in their condemnation and use of the left-right paradigm.

      ….

      DRINK!!

      1. Welch actually said “the right does it too” twice last night on The Independents. Both times he was referring to something not wholly “left-right” and he was wrong as well.

  3. ITs not about left-right. It is about authoritarian-libertarian. That is it. If you’re a libertarian you tend to be an absolutist about 1st amendment protections. I’m also an absolutist about a bunch of the other amendments (2nd? yah…)but if you are posting here you are almost certainly an absolutist on the first. Unless you are a fucking douche like Tony….

  4. Political tags ? such as royalist, communist, democrat, populist, fascist, liberal, conservative, and so forth ? are never basic criteria. The human race divides politically into those who want people to be controlled and those who have no such desire.

    1. More like those who would not be controlled and those who wish they were doing the controlling

  5. My point is that First Amendment cases often fail to conform to a binary left-right divide

    But they do conform to the statist-antistatist divide.

    Also someone should petition Mozilla so they stop spell checking the word “statist”

    1. Also someone should petition Mozilla so they stop spell checking the word “statist”

      Can some smart and cool reason hit and run programer do this for me?

      Pretty pretty please.

      I will love you forever and you will be a hero of liberty!!

      http://tinyurl.com/qywwv3v

      Link goes to Mozilla dev site that tells how to add word to US English spell check dictionary

  6. “My point is that First Amendment cases often fail to conform to a binary left-right divide, and that’s because both sides of the political spectrum are willing to accept the use of government power to silence certain voices at certain times.”

    And yet you failed to support that point with any examples of anti-free-speech conservatives.

    And no, John McCain and Lindsey Graham are not conservatives.

    1. Rick Santorum

    2. The entire anti-pornography moment, though that’s been a little limp since the Internet blew a hole through any hope of regulating porn.

      1. While the right screeches about porn quite a bit, the actual laws that hurt porn the most seem to come from feminist sources.

      1. In a statement announcing the suit, Lt. Gov. Jay Dardenne said, “MoveOn.org has every right to attack Gov. Jindal, the state’s refusal to accept Medicaid or, for that matter, me personally. But they do not have the right to use our protected service mark, which is used solely for the purpose of promoting and marketing Louisiana. We own the mark and its use is under the direction of my office, not the Office of the Governor.”

        Unless other political billboards that deride Jindal are also getting sued, I’d have to say no, this is not an example.

    3. And yet you failed to support that point with any examples of anti-free-speech conservatives.

      I understand the impetus behind the movement and don’t disagree with it, but the ‘No Fed $$ for gun violence research’. Certainly puts it’s toes over the line of violating the 1st Am., IMO. Especially wrt issues like Vivek Murthy’s nomination.

      You wouldn’t find a member of Team Red that would ban the use of the words ‘gun’, ‘public’, and ‘health’ in the same sentence, but you better believe that just saying those three words would bring whatever ire K-street could bring down on you.

      1. There is no 1st Amendment right to have your pseudoscientific political activism funded by the taxpayers.

      2. ‘No Fed $$ for gun violence research’. Certainly puts it’s toes over the line of violating the 1st Am., IMO.

        You seem to believe that not paying for something is prohibiting something.

  7. Per Rick Santorum from Wikipedia:

    Since 2004, the website Savage set up for the campaign has regularly been among the top search results for Santorum’s surname, leading to what commentators have dubbed “Santorum’s Google problem”.[210][211] Santorum has characterized the campaign as a “type of vulgarity” that was spread on the Internet.[211] In September 2011, Santorum unsuccessfully requested that Google remove the content from its search engine index.[212]

    1. What lesson are you drawing from this?

      1. Just saying there ARE anti-free speech (“authoritarian”) conservatives…

        1. Because he petitioned a private company for something?

          1. I mean, I think a non-Senator would have done the same thing.

            1. I don’t know if that is true. But I get the sense that there is PLENTY of speech that a wannabe authoritarian like Santorum would love to censor.

              1. And if he HAD been a sitting senator at the time that he made this request of Google, don’t you think he might have suggested similar legislation upon their refusal?

                1. ANSWER: I don’t have the slightest idea. Do you?

                  1. Well, I tend to view the intents of MR Santorum as similar to most of our entrenched, increasingly-aristocratic political class: with a gimlet eye.

                    1. So, I think that could he have threatened the use of a legislative cudgel, I think he would have.

                    2. It’s quite possible, but the opposite is also possible, and I don’t think petitioning a private company to modify its search protocol proves anything one way or the other.

                    3. Would you concede that Mr Santorum is a proponent of bigger government?

                    4. Yes! The question is whether he would be for this particular kind of big-government.

                    5. Well, it probably wouldn’t surprise you to learn that I wouldn’t give him the benefit of the doubt. And as for the anti-pornography argument touched on above, I am also certain he would be a champion of that if he were presently an elected official…

  8. Not that I don’t think Dan Savage isn’t an asshole of Tony-like proportions….

  9. “Conservatives only want the first amendment to hide their racism behind”
    /Progsmug

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