Politicizing the First Amendment

The First Amendment of the United States Constitution is incredibly brief considering the range of issues it is used to resolve.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

One might think that if our founders really wished to make freedom of speech an absolute right they would have expressed that intention more directly.

“Congress shall make no law abridging the freedom of speech.”

But they didn’t.  They coupled that directive with four others.  The two pertaining to religion indicated that Congress could not force one group of people to abide by the religious beliefs of another group of people.  They also clearly wished that the press be free to serve the population by disseminating information important to the functioning of the nation.  Finally, the right of peaceful assembly was expressed as a means of protecting the people from governmental excesses.  All these directives deal with insuring that the proper functioning of our democracy could not be impaired by a tyrannical government.  Shouldn’t the reference to free speech also be interpreted in the same way?

The belief that freedom of speech is an absolute right produces a vastly different world than one that incorporates the notion that freedom of speech is associated with the proper functioning of a democracy.

Lincoln Kaplan provides a thought-provoking discussion of these issues in an American Scholar article: Stress Test for Free Speech.  He discusses issues related to social media and other recent developments as well, but here we will focus on the basic interpretation of the First Amendment.  Kaplan provides his perspective on “freedom of speech.”

“The public sphere is the center of free speech in American democracy. Intangible yet indispensable, it’s the forum where speech, building on other speech, sometimes even by assailing it, demonstrates the rewards of open debate, which the First Amendment safeguards as the foundation of public opinion and the basis for self-government.”

“The amendment has always functioned primarily to curb the power of government. It protects individuals against government infringement of elementary rights, such as the right to petition and the freedoms of religion, assembly, and the press, as well as speech.”

In other words, the purpose of the First Amendment was to protect our democracy by allowing the citizenry as a collective to express its will via the ballot and other measures.  What has occurred along with the rise of neoliberal economic ideas is that the focus of “free speech” has drifted from that of the collective participating in democracy to that of individuals expressing themselves.  And, of course, corporations gradually became individuals in the eyes of the courts.

Kaplan attributes the traditional interpretation of the amendment to Justices Oliver Wendell Holmes and Louis D. Brandeis.

“It regards free speech as an essential instrument of democracy and the test of speech’s health as the vitality of American governance.”

Recent conservative courts, particularly the Supreme Court under John Roberts, have overturned this principle and created its exact opposite.  Instead of supporting the workings of democracy as the expression of a collective will, Roberts and his political allies have elevated the right of individuals to express themselves over that of the collective.  This, in effect, limits what government as an expression of the collective can do.

“To the Court’s conservative majority, which has advanced the interests of big business more than any Court since the 1930s, free speech is about the individual rather than society, the speaker rather than the listener, and liberty rather than democracy. These choices are having deep and damaging consequences. The Court’s libertarian and antiregulatory bent, expanding the economic activity that the First Amendment covers, is shrinking what democracy can govern. The colossal mess that social media are helping to make of democracy requires the opposite, that the government have the reach to defend itself against them and steer them to serve rather than to undermine its interests, or fail.

With the recognition in the 1970s that businesses had First Amendment rights came the possibility for corporations to use those rights to their individual advantage and strike down expressions of collective needs and desires.  There are numerous examples of such political opportunism such as those related to corporate spending on political issues. 

“For the past decade, however, corporations have used the idea of commercial speech as a basis for sweeping claims about what the First Amendment entitles them to as speakers, and they have persuaded courts to strike down a broad range of well-founded regulations, from health warnings on cigarette packs to bans against pharmacies’ sale of prescription data for marketing.”

“These claims have been described by legal scholar Leslie Kendrick and others as ‘First Amendment opportunism’.” 

Kaplan includes a lesser known case as an illustration of how restrictive courts can be in protecting the individual (business) from the workings of democracy.

“A remarkable example is a 2013 decision by the U.S. Court of Appeals for the District of Columbia Circuit, called National Association of Manufacturers v. National Labor Relations Board. In a longtime practice, the board required private employers to post their employees’ rights at work for such matters as the right to join a union or to discuss their wages with other workers. The association challenged the requirement on grounds that it violated the free-speech rights of employers by compelling them to speak. The D.C. Circuit agreed.”

The First Amendment has become a bludgeon with which justices with conservative political views can impose those views on society as a whole; and in so doing bypass the processes of a democracy.

“Free-speech law is often treated as a body of immutable principles articulated in the First Amendment, available for all when their rights have been violated. In reality, that body of law is a set of mutable propositions argued about and applied by judges in ways that reflect contradictory views on political and legal values and, in the end, reflect the balance of power on the Supreme Court.”

“’More than any other modern Court,’ scholars Lee Epstein, Andrew D. Martin, and Kevin Quinn wrote in June, after analyzing 2,967 votes cast by justices voting in 338 free-speech cases over 65 Supreme Court terms from 1953 to 2017, ‘the Roberts Court has trained its sights on speech promoting conservative values.’ In the Janus case, the conservative cause was attacking unions. The liberal cause was supporting them. Why have today’s justices seemed to reverse the Warren Court (1953–69) pattern of liberals’ supporting speech and conservatives’ supporting regulation? Because of ‘the increase in conservative expression cases’: on the Warren, Burger, and Rehnquist courts, the justices picked by Republican presidents and by Democratic presidents supported conservative and liberal free-speech cases in close to the same percentages; ‘only the Roberts Court’s Ds and Rs are statistically different.’ Here, the Rs have supported conservative expression in 67.9 percent of the cases and liberal expression in only 23.8 percent. The Ds have supported conservative expression in 42.4 percent of the cases and liberal expression in 47.4 percent.”

Whether it is its attempts to disenfranchise voters, to allow the few to pollute the environment of the many, or to transfer wealth from the many with low incomes to the few with high incomes, the Republican Party and its judicial minions are determined to weaken the underpinnings of democracy in this country.

Remember that the next time you have an opportunity to vote.