Formal protections for free speech are important and necessary, but they do not amount to very much without a free-speech culture to back them up.
In response to a proposal from the editors of the Boston Globe, hundreds of newspapers on Thursday published editorials about the importance of a free press. The New York Times was among them, quoting William Brennan’s decision in Times v. Sullivan, which insisted that “debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”
Presumably, such “vehement, caustic, and sometimes unpleasantly sharp attacks” on public officials would include, inter alia, showing a film critical of Hillary Rodham Clinton while she was seeking the presidency, publishing material critical of the Obama administration’s climate policies, or advocating the protection of the right enshrined in the Second Amendment. But, of course, the people who are patting themselves on the back today for their championing of the First Amendment are the same people who have celebrated the suppression of such “uninhibited, robust, and wide-open” public discourse, often with the New York Times cheering them on.
In the first instance there is the case of Citizens United, a nonprofit advocacy group that was prohibited, in plain contravention of the First Amendment, from showing a film called Hillary: The Movie. The Supreme Court has affirmed that this was a violation of Citizens United’s rights under the First Amendment, and the response of the Democratic party — again, with the blessing of the New York Times — was to attempt to gut the First Amendment, which every Democrat in the United States Senate voted to do under the leadership of Harry Reid. In the second and third cases are the Democratic officials at the state and federal level who have been and are abusing their investigatory and regulatory powers to retaliate against organizations that are critical of certain global-warming and gun-control initiatives. Democratic activists have gone so far as to argue that Charles and David Koch should be imprisoned for their political activities, and that “climate denial” should be a criminal matter. None of that is consistent with our traditional understanding of the First Amendment and of free expression more generally.
The point here isn’t to point out the obvious hypocrisy, though hypocrisy abounds in the matter. The point, rather, is to ask: How should we think about the First Amendment — as a narrowly construed legal provision or as part of a generally liberal attitude toward free speech?
If the First Amendment is merely a slim legal carve-out, then the Times et al. probably should not be complaining very much about President Donald Trump’s attitude toward the news media. (Or maybe not at all: “Congress shall make no law,” it says.) He hasn’t proposed a law to restrict press freedoms. The president may dream of adopting a restrictive British-style libel law, but he has not attacked the press’s ability to operate without legal interference; he has attacked the press’s credibility and prestige, along with its partisanship, which is not entirely unwarranted. Yes, it’s bad form for the president to call the press an “enemy of the people.” It’s also bad form for the New York Times to label the president a “treasonous traitor” in a headline with no credible case for making such a serious charge. But if the First Amendment is only an esoteric constitutional doctrine, then it takes a lot more than bad form to violate it.
If, on the other hand, what we want is a culture of free speech with liberal norms guiding our attitude toward journalism, advocacy, and political debate, then our friends on the left have some thinking to do. The National Rifle Association is an advocacy organization; it does very little other than fight for gun rights and raise money to fund that fight. It is not, contrary to the myth, an outsized political donor: It is No. 497 (out of 16,585) on the list of political donors at OpenSecrets.org. And yet the soi-disant champions of free speech have stood idly by — or cheered — as Democratic officials in New York use their positions to lean on financial-services companies in an effort to shut down the NRA institutionally by denying it ordinary banking and insurance services. That is banana-republic stuff. And yet it is happening, and the fair-weather friends of the First Amendment are by their behavior perfectly contented with that.
Writing in the Boston Globe on August 13, Professor Dani Rodrik of Harvard’s Kennedy School proposed blacklisting any American who served in the Trump administration. The irony-immune professor argues that this is necessary because of the administration’s contempt for “liberal democratic norms.” Blacklisting academics and public figures for their political affiliations is not really quite in keeping with liberal democratic norms either, obviously. He writes: “Like other organizations” — (except bakeries) — “universities have the right to determine their practices in accordance with their values.” Would that this liberal principle were applied liberally! But if your black-hats/white-hats model of the political universe means that, e.g., the secretary of state (who is also a former congressman and CIA director with a law degree from Harvard) cannot be offered a fellowship in a diplomatic-studies program, or that Larry Kudlow must be prohibited from giving a keynote address at a business-school function, then your model is not only dopey and counterproductive, it is also deeply illiberal. Those contemplating such designs would do well to speak a little less loudly about the vindictiveness of the president.
If we want a culture of open and robust discourse, then we do not want a culture in which Brendan Eich is driven from his job for having an unpopular view on gay marriage. If we want a culture of open and robust discourse, then we do not want a culture in which there is an organized-campaign-style effort to have journalists dismissed from their positions for holding unpopular views, or a boycott every time the New York Times or the Washington Post (or, I suppose, The Atlantic) adds a columnist who is not likely to please the Bernie Sanders Campaign Historical Re-enactors Society at Reed College. It is true that none of these things is a formal violation of the First Amendment, because the First Amendment is a restriction on what kind of laws the federal government may enact. But calling CNN’s daily output “fake news” isn’t a violation of the First Amendment, either.
What’s actually at work here is a variation on “Heads I Win/Tails You Lose.” When the Left wants to stop an unpopular speaker from delivering remarks at Berkeley, then that’s just meeting speech with more speech and some firebombs. And, it’s true: There isn’t any First Amendment reason why you can’t have a riot at Berkeley every time Ann Coulter gets invited to speak there. But there are all sorts of other reasons.
If there is going to be more to freedom of speech than “Congress shall make no law” — which is what we should want — then that has to be true for everyone.
Freedom of the press is not some special license granted to organizations that incorporate as media companies. There is no intellectually defensible model of free expression that protects the editorial page of the New York Times but not Hillary: The Movie. Of course, it’s easy to think of a pretext for suppressing communication you don’t like: If you don’t like what Citizens United is saying, then you shut it down with “campaign finance reform,” which, we should remember, worked — until the Supreme Court stopped it. If you don’t like that oil companies fund organizations that criticize global-warming policies, then you claim that this amounts to “securities fraud.” If you don’t like that the NRA is an effective advocate for its positions, you use banking regulations to hamstring it financially. Don’t like somebody’s social or religious views? “Hate speech.” Easy as that.
We don’t need conjecture: We’ve seen how this goes. The Obama administration used the Espionage Act to punish whistleblowers, spy on journalists, and interfere with reporting it didn’t want done. Under Obama, the IRS targeted conservative nonprofits for harassment and more under the guise of enforcing the tax code — and it illegally disclosed private information about an advocacy group that irritated Democrats. The same people demand the power to set the terms for political debate, saying they want to “keep money out of politics,” a claim that it is impossible for any mentally functional adult to take very seriously.
Freedom of the press does not mean extending special privileges, legal or customary, to the New York Times and CNN. And freedom of speech means a lot more than the absence of formal censorship by the federal government. Formal protections for free speech are important and necessary, but they do not amount to very much without a free-speech culture to back them up.
You can have free speech, or you can have what Andrew Cuomo, Elizabeth Warren, and the editors of the New York Times have pressed for. You cannot have both.
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