New York Times Declares That Conservatives Take Unfair Advantage of the First Amendment

As I posted a little earlier in the week, this past week was when the Supreme Court stepped in an saved free speech from progressives. There has been an unsettling push on the left–by advocacy groups, law professors, and by federal judges participating in the “long march through the institutions”–to make free speech a collective right that is the sole property of the government and of certain privileged demographic groups and to suppress the idea that free speech, even unpleasant and hurty-pants speech, belongs to individuals. To be fair, a lot of alleged conservatives have bought into the idea that free speech encompasses only speech that gets you invited to the right cocktail parties and they are only a hop-skip-and-jump away from embracing the idea that speech belongs to groups.


This trend of conservatives winning Supreme Court cases on First Amendment grounds has caught the attention, and ire, or the New York Times. Behold: How Conservatives Weaponized the First Amendment.

The title comes from Justice Kagan’s dissent in the Janus case:

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.

The article is fairly dishonest and/or juvenile in its analysis. It insists, for instance, in calling free speech cases brought by conservatives as “conservative speech” cases when, in fact, the principles in Janus and in NIFLA apply equally to progressive causes. These cases were only brought because conservative speech was being restricted by progressive forces once they’d gained near absolute power in various locations. The most interesting thing is the way it catalogs the left’s blatant hostility to any speech that does not conform to leftist ideology.


There was a certain naïveté in how liberals used to approach free speech, said Frederick Schauer, a law professor at the University of Virginia.

“Because so many free-speech claims of the 1950s and 1960s involved anti-obscenity claims, or civil rights and anti-Vietnam War protests, it was easy for the left to sympathize with the speakers or believe that speech in general was harmless,” he said. “But the claim that speech was harmless or causally inert was never true, even if it has taken recent events to convince the left of that. The question, then, is why the left ever believed otherwise.”

“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.”

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.”

“With the receding of Warren court liberalism, free-speech law took a sharp right turn,” Professor Seidman wrote in a new article to be published in the Columbia Law Review. “Instead of providing a shield for the powerless, the First Amendment became a sword used by people at the apex of the American hierarchy of power. Among its victims: proponents of campaign finance reform, opponents of cigarette addiction, the L.B.G.T.Q. community, labor unions, animal rights advocates, environmentalists, targets of hate speech and abortion providers.”

The title of the article asked, “Can Free Speech Be Progressive?”

“The answer,” the article said, “is no.”


This hostility is borne from the fact that the more that people know about progressive ideas, the more likely they are to reject them. And the only way the left has of retaining its stranglehold on the institutions it has seized is by forbidding subversive speech.

While, on the right, we often seem fixated on abortion when we talk about the Supreme Court and Circuit Court, we should not lose sight of the fact that on every issue we support that the keystone is free speech. Without free speech we can’t advocate for our position. We can’t fight for the Second Amendment or for the Right to Life. And, eventually, we’ll have to fight to protect the Third Amendment, too.

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