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


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.