In a page‐one piece in yesterday’s New York Times, Supreme Court reporter Adam Liptak offered up a generally even‐handed account, misleadingly headlined “How Conservatives Weaponized the First Amendment,” about how liberals and the left have increasingly abandoned the First Amendment’s protection of free speech. No less than Justice Elena Kagan invoked the weaponizing charge on the Court’s last day last week when she dissented vigorously from the Court’s decision that Illinois could no longer compel a public‐sector non‐union member to support union activity he opposed. “There is no sugarcoating today’s opinion,” she wrote.
[I]t 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.
Only the day before, Justice Kagan objected similarly to the Court’s rejection of a California law that required religiously oriented “crisis pregnancy centers” to provide information to women about abortion options.
Like conservatives of old—Robert Bork argued that “constitutional protection should be accorded only to speech that is explicitly political”—many on the left today would allow a wide birth to legislatures to restrict speech, especially where they see it as harmful to interests they support—unions, as here, women (pornography), democracy (corporate campaign contributions), minorities (white supremacist marches), and, more broadly, consumers (commercial speech).
In a piece worth reading, Liptak points to areas where conservative judges have protected speech they abhor: violent video games, lies about military awards, and more. And he nicely captures the rationale for the shift on the left with a quote from Georgetown Law’s Michael Seidman:
When I was younger, I had more of the standard liberal view of civil liberties. 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.
Free speech as a means [toward progressive ends], not as an end in itself. Just which side today would weaponize the First Amendment?