First Amendment Under Attack by Cary Ichter, Partner
On a knee-jerk basis, it is stunning, but after thoughtful consideration, it is hardly surprising, that elements of the political Left are now unashamedly attacking the First Amendment. And the attacks are not just emanating from wild-eyed radicals. Instead, they come from, among other places, law schools and a Supreme Court Justice, and they are being circulated by no less than the New York Times—not on the editorial page but on the front page of the Sunday Times.
It is truly frightening that liberals apparently value their short-term political agenda more than the value constitutional freedoms, Frederick Schauer, a law professor at the University of Virginia, is quoted as saying, “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. 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.”
Louis Michael Seidman, a law professor at Georgetown, explaining his abandonment of a liberal view of the First Amendment, declared, ‘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.” According to Catharine A. MacKinnon, a law professor at the University of Michigan, “free speech reinforces and amplifies injustice.” According to MacKinnon, “Once a defense of the powerless, the First Amendment over the last hundred years has mainly become a weapon of the powerful. 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.”
This is how fascism begins. These people, and many like them on the Left, apparently believe that unless you are a “radical, artist and activist, socialist and pacifist,” your views have no value and not only should not be heard, but must be actively suppressed. Apparently, when these former proponents of a liberal view of free expression were fighting for that principle, they did not understand that expression would be free for everyone and that conservatives would use it. (And they accuse people on the Right of being stupid.)
When censorship based upon content occurs, all content that fails to endorse the powerful will be in danger. The question of what speech and expression is entitled to protection will be a function of the flavor of the day. Indeed, had the emerging opposition to free expression been in vogue in the 1950s, today we would be segregated, LBGTQ activists would be in re-education camps, and political dissidents would be in gulags. And, given that “authoritarians, racists and misogynists, Nazis and Klansmen, pornographers and corporati[sts]” have been savvy enough to purportedly turn free expression into a “sword,” what will prevent the same cohorts from using the power to suppress expression to quash all dissent?
The impatience of the Left matches its intolerance. Failing to recognize that the pendulum swings in two directions and so intolerant of a diversity of thought, the Left appears to be prepared to abandon the very foundations of representative government that protect all parties and views in the long run. This element of the Left will not abide a difference of opinion—not even for a moment. If they prevail, prepare for the Inquisition.
It is truly remarkable that political observers who worry aloud about President Trump’s authoritarian inclinations would place in his hands and the hands of his successors the power to squelch dissent. Fascist is not just a label to be applied to all political opponents. Fascism involves the concentration of nearly limitless power in the state. Granting the state the ability to limit free expression is the surest path to the concentration of all power in a fascist state.
Does anyone of these people remember that Lenin and Mao’s murderous regimes were built on rhetoric of “justice”? Beware those who promise “justice and equality” while demanding the sacrifice of liberty and freedoms.