Reason.com

Free Minds & Free Markets

Partisans United Against Free Speech

The culture of free speech has been deteriorating for long enough that politics, sadly and predictably, is catching up.

The Supreme Court this June expanded First Amendment protections to cover public employees who don't want the state extracting union dues, voters who seek to wear political clothing or paraphernalia at the polls, and some businesses that chafe at being told by the government that they must display certain information. This has been, The Volokh Conspiracy's Jonathan H. Adler concluded, "the most speech-protective Supreme Court in our nation's history."

The citizenry, meanwhile, was moving in the opposite direction. In a memo leaked in June, staffers at the American Civil Liberties Union (ACLU) agonized that the organization's fabled commitment to the First Amendment might have a "harmful impact on the equality and justice work to which we are also committed." All summer long, rightists and leftists took turns trying to get their political opponents fired from their jobs and banished from social media platforms over speech deemed intolerable. Even on the Supreme Court, Justice Elena Kagan warned that her conservative colleagues were "weaponizing the First Amendment."

A gap that wide—and widening by the day—between the constitutional parameters of free speech and the cultural support for the stuff is not tenable in the long term. That is, if you take to heart the main argument of Barry Friedman's 2009 book The Will of the People, which is that the Supreme Court, rather than hewing doggedly to principle, is in fact sensitive to public opinion, ratifying post facto where the culture has already gone.

If today's mores produce tomorrow's First Amendment jurisprudence, we might be in for a rough patch ahead, particularly considering the retirement of Justice Anthony Kennedy, whom Adler describes as "the most speech-protective justice" on the Court. But actually, we don't have to wait to see whether the cultural turn against free speech will filter into law and the enforcement thereof. It's already happening.

The most ominous recent example is the Allow States and Victims to Fight Online Sex Trafficking Act, which was passed overwhelmingly by Congress (388–25 in the House, 97–2 in the Senate) and then signed into law by President Donald Trump in April, even though it holds web publishers retroactively liable for illegal transactions conducted between their users. The law was opposed on First Amendment grounds by the ACLU, the Electronic Frontier Foundation, and such civil libertarians as Sen. Rand Paul (R–Ky.) and Sen. Ron Wyden (D–Ore.), the latter of whom warned that there could be "an enormous chilling effect on speech in America."

But even on issues like antitrust enforcement and the long-dead, ill-advised Fairness Doctrine, Republican politicians and commentators are abandoning positions they've held for decades. It's not just President Trump making threats on Twitter, either.

When the local-TV chain Sinclair Broadcast Group sought to purchase Tribune Co.'s television stations, former Republican House Majority Leader Tom DeLay objected that "the spectrum Sinclair utilizes to broadcast is limited," then added in a Politico essay the conservative-sounding twist that the merger "would set a terrible precedent by opening the door for ABC, CBS, and NBC to also buy many more TV stations. At that point, nothing can stop liberal Northeast corporate executives from telling homes in the heartland what to think." The deal was abandoned in August after the Federal Communications Commission (FCC) raised procedural objections to some of Sinclair's pre-merger activities.

The Department of Justice's less successful attempt to block a merger between AT&T and Time Warner has also inspired from the Justice Department the kind of vigorous antitrust argument "that hasn't been made by any Republican, conservative administration ever—not even by Obama," as Vanderbilt Law School's Rebecca Haw Allensworth told The Washington Post.

Politicians respond to incentives created by voters, and right now voters want speech suppressed. Sens. Bernie Sanders (I–Vt.), Elizabeth Warren (D–Mass.), and nine of their colleagues have asked the FCC to consider revoking Sinclair's license altogether, based on content concerns. Sen. Ted Cruz (R–Texas) recently said that breaking up big tech companies in the name of free speech is an issue he is "looking at seriously."

Libertarians have expended much energy over the years making the important distinction between First Amendment issues and the broader category of "free speech." But it's also crucial to recognize that, in the famous Andrew Breitbart phrase, politics is downstream from culture. The culture of free speech has been deteriorating for long enough that politics, sadly and predictably, is catching up.

Photo Credit: dane_mark/iStock

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • sarcasmic||

    I dunno. The loudest voices don't necessarily represent everyone. You'd think that there is huge popular support for gun control based upon media coverage, celebrities, and the money put into campaigns for gun control measures. But they almost always fail when put to a vote.

    I think it's the same way with free speech. Yeah there's a bunch of crybabies on both sides who want to silence their critics, and there are the emotional twits who feel that words are worse than sticks and stones; but I'd like to believe that the majority thinks they're all a bunch of morons.

  • sarcasmic||

    And the court appears to confirm this when the 2A is put to the test. Hopefully it will go the same way with the 1A.

  • DiegoF||

    Free speech has been in pretty good hands with this Court. The predominant "conservative" judicial philosophical tendencies are all very strong on it; and the "liberals" have been conditionally decent. Kavanaugh would be an unpleasant surprise indeed if he proves as deferential on 1A as he is feared to be on the 4A. Even Garland, who consensus suggests would have been the single most sweepingly deferential justice in a long time, was considered quite good on this issue.

  • Conchfritters||

    Justice Elena Kagan warned that her conservative colleagues were "weaponizing the First Amendment."

    She is really the most useless member of the court. Even RBG is right about 2% of the time. And with respect to Paul and Wyden - - that's great that they stood up against FOSTA, but if my memory serves me correctly, I think they might have been the only two.

  • Unicorn Abattoir||

    Conservatives are weaponizing the 1st while the left tries to disarm the 2nd?

  • Brett Bellmore||

    I guess "weaponizing" a right consists of upholding it even when your political foes would rather you didn't?

  • Quo Usque Tandem||

    "...and right now voters want speech suppressed."

    Citation?

  • Shirley Knott||

    FOSTA, local anti-signage ordinances, limits on political spending/speech, 'truth' checkers for media, safe spaces, trigger warnings. The list goes on and on.
    The people who push for this shit are voters. The people who pass this shit are voters. The people who approve of this shit are voters. The people calling for more of this shit are voters.

  • Quo Usque Tandem||

    Understood, but surely not a plurality of voters actually want this; my question is actually how many people registered to vote are in favor of restrictions; 20, 30, 40%? I am inclined to think it is the usual suspects, being self appointed liberal coastal and metropolitan "elites." who believe they should never hear or see anything with which they do not agree and want their agenda to predominate. And of course they have a lot of friends in the media, which serves to amplify their bullshit. I was just wondering if anyone has bothered to conduct an honest poll [ok quit laughing] on this.

  • Entropy Drehmaschine Void||

    I see what you did there ...

  • Entropy Drehmaschine Void||

    I see what you did there ...

  • damikesc||

    Most voters find campaign laws as an extremely low priority.

    The MEDIA is obsessed with it because it gives them MORE power.

    Don't confuse a story with lots of coverage with one that people give two shits about.

  • Azathoth!!||

    'On both sides'

    Reason will bend its ass through infinite dimensions to twist something to the point where they can blame the right for the left's behavior to get that precious 'on both sides'

    The extent of the right's 'attack' on the First has been as follows---'if you're going to fire MY person for doing X, you've gotta fire YOUR person for doing X'

    Demanding equality before the law/ToS/guidelines is NOT attacking the amendment. It's not attacking anything except the left's penchant for 'It's okay when WE do it'.

  • Diane Reynolds (Paul.)||

    It would be nice if someone would take some higher ground. Sure, it'll mean losing some fights here (by that I mean "conservatives" are going to get fired and thought-crimed out of public spaces at an alarmingly higher rate than "liberals/progressives") but someone needs to take a stand.

    For all of Bill Maher's faults-- he's been good on free speech and took his own audience to task over Alex Jones being unpersoned by the big tech companies.

  • Kivlor||

    The conservatives tried that, and it has not been working.

  • UnrepentantCurmudgeon||

    Maher has his moments. He's also been strong on Islam, unless I've missed something lately

  • Entropy Drehmaschine Void||

    Progtardian mantra: Principals over Principles.

  • Mongo||

    I understand when 1A 'opponents' argue that free speech only applies to powers-running-the-show (the System has always squelched harshly unpopular opinions) and therefore should be adjusted or re-thought but I counter with my personal enjoyment of the loud cacacophy of democracy.

  • Mongo||

    And, you know, I really, really dig 'cacacophy' ... especially when supermodels do it.
    CACOPHONY

  • Qsl||

    I'll venture into probable hypocrisy territory and state there is a difference in outright bans and restrictions of the time/place variety (although having government regulations opens up just as many difficulties as having billboards with graphic depictions of corprophillia). I don't see much difference in government restriction or corporate restriction if Comcast is the only ISP available in my area and they want to dictate what goes across their tubes. Much of the difficulties stem from parties wanting to play both sides, wanting to restrict while also denying any responsibility for what is presented (if you want to ban certain speakers from your campuses, fine. But then you bear the fallout from the speakers that you do allow with type and kind restrictions).

    To an extent, free speech only seems to work if there is a degree of deference that even something like NAMBLA should have their say. Among rabid dogs, it is just calls towards vigilantism and soft censorship of using what ever means to silence opposing views.

  • Longtobefree||

    Well, after all, they are only considering commonsense speech control - - - - - - - - - -

  • Brett Bellmore||

    It's kind of deceptive treating left and right demands to 'control' speech as equivalent.

    The left is demanding that it's foes be censored.

    The right is demanding that public companies stop censoring.

    This latter is arguably a 1st amendment problem because it can interfere with the 1st amendment rights of the companies, but it's diametrically opposed to what the left wants.

  • ThomasD||

    The right is demanding that public companies claiming to be neutral platforms behave like neutral platforms or face the consequences.

  • BSL1||

    "The right is demanding that public companies stop censoring."

    Individuals demanding that of the companies is fine. Demanding that the feds force companies to stop censoring is not fine. No authority there.

  • Brett Bellmore||

    That's what I said: It's constitutionally problematic.

    But it's still diametrically opposed to what the left is demanding. Trying to stop private censorship is not the same thing as trying to impose government censorship.

  • Brett Bellmore||

    That's what I said: It's constitutionally problematic.

    But it's still diametrically opposed to what the left is demanding. Trying to stop private censorship is not the same thing as trying to impose government censorship.

  • ||

    We can but continue to fight for free speech and expression.

    Keep being vigilant.

  • NashTiger||

    Without reading the article, lemme guess, a bunch of ridiculous false equivalencies?
    How did I know?

  • MasterThief||

    "Matt Welch" is the author. Though Robby is a bit worse in this regard. Welch is more into hyping "woketarian" stuff like Flake

  • Diane Reynolds (Paul.)||

    First Amendment might have a "harmful impact on the equality and justice work to which we are also committed."

    The ACLU would be correct... or may I say "accurate" in that statement. Some of the "justice" work the ACLU takes on runs counter to the ideals of free speech.

  • Diane Reynolds (Paul.)||

    The culture of free speech has been deteriorating for long enough that politics, sadly and predictably, is catching up.

    Appropriate.

  • Pulseguy||

    Social media has a couple of problems.

    1. If it bans Conservatives it de facto says 'we approve what goes on our platforms' because it censored some things, and didn't censor others. If someone plans and organizes a terrorist act on its platform, especially one which had been flagged, then there is a case it is culpable as it approves and disapproves some posts.

    2. We don't pay for FB, for example. But, we do in the form of advertising. We agree to allow ads to run alongside our feeds in exchange for the platform. That is the payment, and it is substantial as that is how FB makes all its money. If we are misled as to what we are seeing, and what is allowed to be seen, and who gets to see our posts etc., especially if others aren't being choked in any way, then there is a case to be made that we weren't offered an honest service for our 'payment'.

    It never occurred to anyone a private company could become so big it controls public discourse. If that public company restricts the speech of one group then censorship is a real issue. Forget it isn't coming from Government. Public discourse is being affected. Would it have been fair to stop Ma Bell, for example - as it controlled the phone system, if 50 years ago any phone conversation that had more than 3 'hippy' words in it was dropped?

  • UnrepentantCurmudgeon||

    We are all in trouble the moment anyone in a position to determine what gets published and what does not decides not to adhere to the fundamental maxim that "the answer to speech is speech". The key difference between us (who may generally be described as "conservatives" in the American political spectrum) is that we care about such trivialities as Constitutional principles, while liberals generally do not. So we worry about things like calling on FB not to censor this or that, or to censor "equally", while leftists do not worry about such niceties.

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online