Look Who's Trashing
the First Amendment

The First Amendment is under attack. So often have those words been written over so many years that they rarely tell a new story. To repeat them now may suggest a frontal assault from the right - new efforts, say, to ban "dangerous" books by J.D. Salinger, Kurt Vonnegut, or Judy Blume in public schools. Or to amend the Constitution to permit states to make it a crime to burn an American flag. Or to limit, as it may suit Jesse Helms's fancy, federal funding of the so-very-threatening arts.

But there is news about the First Amendment. It is indeed under attack again. But this time its most consistent attackers are on the left. And many of its most powerful defenders are on the right.

Consider the Communications Decency Act that the Supreme Court in June held to be unconstitutional. The act made it a crime to post on the Internet material that may be "indecent" for children under eighteen even if it has serious artistic value for adults. One American political leader immediately characterized the legislation as "clearly a violation of free speech." Another defended the law's constitutionality. The first was Newt Gingrich; the second was Bill Clinton.

Or consider the continuing conflict between the editorial pages of The New York Times and The Wall Street Journal about the constitutionality of legislation limiting campaign spending. According to the Times, the Republican argument that the First Amendment bars the legislation is "ludicrous"; according to the Journal, any such legislation restricts political speech and thus "would require amending the Constitution."

Most telling, perhaps, was the forum of ten "free-speech thinkers" in The Nation's issue of July 21 raising the question whether "liberals and progressives" should "rethink their beliefs about free speech." The symposium was needed, The Nation wrote, because the First Amendment was being wielded "to thwart progressive reforms such as caps on campaign spending, public access to the airwaves, and regulation of cigarette advertising." And there was worse news yet. In all these battles, "the wrong side kept winding up with the First Amendment in its corner."

Two law professors in the forum, Ronald K. L. Collins and David M. Skover of Seattle University, went further. Since "speech is power," they said, and since powerful people and corporations are particularly active in using speech to advance their interests, "much current First Amendment law is anti-democratic."

Liberal and conservative justices on the Supreme Court in recent controversial First Amendment cases have found themselves in unfamiliar positions. When the Michigan Chamber of Commerce spent money from its general treasury funds to support a candidate for the state House of Representatives in a 1985 election, it became a potential felon; Michigan legal restrictions on corporate political expenditures barred the expenditure. When the case reached the United States Supreme Court in 1990, judicial opinions of liberal icons Thurgood Marshall and William Brennan held that the law was constitutional. According to Marshall, in an opinion often cited now by forces supporting limitations on campaign spending, "Michigan identified as a serious danger the significant possibility that corporate political expenditures will undermine the integrity of the political process, and it has implemented a narrowly tailored solution to that problem."

 Justice Antonin Scalia, one of the most consistently conservative members of the Court, carried the First Amendment banner in the case. His dissent began with the words of a mock broadcast to the public of a repressive government enforcing the same limits on speech the majority of the Court had just upheld.

 "'Attention all citizens. To assure the fairness of elections by preventing disproportionate expression of the views of any single powerful group, your Government has decided that the following associations of persons shall be prohibited from speaking or writing in support of any candidate.'" Scalia then left a blank for the insertion of the names of any of the newly speech-limited groups, concluding that "in permitting Michigan to make private corporations the first object of this Orwellian announcement, the Court today endorses the principle that too much speech is an evil that the democratic majority can proscribe."

He went on from there to argue that the limitations on campaign spending imposed by Michigan could not be squared with the First Amendment.

 Scalia has repeatedly taken the same position in cases raising the issue of when and to what degree protests by pro-life groups outside abortion clinics may be limited. Dissenting from an opinion of the Court that upheld restrictions on anti-abortion protesters outside abortion clinics, Scalia concluded that while the Court's ruling "seems to be, and will be reported by the media as, an abortion case," it "will go down in the law books, it will be cited, as a free-speech injunction case - and the damage its novel principles produce will be considerable."

Scalia's opinion, joined by Justices Anthony Kennedy and Clarence Thomas, was rooted in long-standing First Amendment notions: the nearly total ban the law has placed on injunctions against speech, including court-ordered bans on demonstrations; the all-but-absolute ban on limitations on speech based upon its content; and a cluster of others that led Scalia to conclude that the Court's ruling "ought to give all friends of liberty great concern."

Of course, not "all friends of liberty" agreed. The First Amendment protects speech, including demonstrations; it does not protect the act of physically blocking access to an abortion clinic. Drawing lines so as to protect both interests - free speech and unencumbered access - is not easy. What is extraordinary about these cases, however, is the passionate pronouncements of First Amendment principle they provoked from the most conservative members of the court.

The same turnabout is visible within the legal academy. Some of the nation's most distinguished law professors whose writings have generally been characterized as liberal have consistently taken recent positions that the First Amendment should not, after all, be read too broadly. Two of them are Yale Law School professor Owen Fiss and University of Chicago Law School professor Cass R. Sunstein.

Fiss has argued that the state is no more or less likely to restrict speech than a private institution such as CBS and that the FirstAmendment should not be read to "presume that the state will be more likely to exercise its power to distort public debate" than "any other institution." Restrictions on campaign expenditures, Fiss argues, are constitutional on the ground "that to serve the ultimate purpose of the First Amendment we may sometimes find it necessary to 'restrict the speech of some elements in our society in order to enhance the relative voice of others.'"

Sunstein, in turn, has proposed what he characterizes as a New Deal for the First Amendment. It would permit "what seems to be government regulation of speech" so long as it actually promotes the values of free expression. Sunstein argues that the First Amendment should be held to permit significant limitations on spending in political campaigns to "reduce the distorting effects of wealth." The "constitutional attack on campaign finance reform," he says, "is a cruel irony." According to Sunstein, the government should, as well, be permitted to require the news media to provide a "right of reply for dissenting views"; and to impose in public universities significant limitations on "hate speech" on campus.

These views are serious and thoughtful. They are set forth at length and with subtlety by both these scholars in books and articles that are worthy of close study. But there can be no doubt that both scholars understand that their views are at odds with the First Amendment we have come to know. It is our "Free Speech Tradition" itself, Fiss observes, that has "oriented the Justices in the wrong direction." "Free speech absolutism," writes Sunstein, "is mere rhetoric, a form of self-congratulation."

Views such as these have not gone unanswered. Sometimes the "other" side has been articulated by institutions and individuals generally seen on the liberal side of the spectrum - the American Civil Liberties Union, for example, and law professors such as Kathleen Sullivan of Stanford Law School. But more often than not, the classical First Amendment responses to these positions have come from a new cadre of voices from the right, including conservative public interest organizations like the Washington-based Center for Individual Rights.

 One of the scholars who has defended orthodox First Amendment law most eloquently is Charles Fried, a particularly controversial solicitor general of the United States under President Reagan and now a justice of the Supreme Judicial Court of Massachusetts. Before he got that job, Fried took on directly Fiss's position that the state is no more or less likely to restrict free speech than is any private entity. "In the public domain," Fried writes, "the state is enforcing a view of the truth about itself. Because it is interested, it cannot be trusted. The public must be left to sort out the truth for itself."

As for the argument that the First Amendment should be interpreted to require the government's hand on the scale to assure greater diversity in the expression of views, Fried's response was blistering:

"What in the world are these people talking about? They cannot literally mean that their messages are drowned out in the sense that those who wish to hear them cannot. It is not as if the networks or The Wall Street Journal were actually jamming the broadcasting of anyone's views. What these people really mean is that not many people are interested; or are not interested for long; or, like myself, if interested are not at all persuaded. In this respect these critics are like annoying children who whine at their parents, 'you're not listening to me,' when what they mean is, 'however much I go on, you don't think I'm right.'"

This new sort of division - conservatives defending First Amendment interests, liberals seeking to define them narrowly - should not come as a complete surprise. The First Amendment is in many ways profoundly conservative. It is, after all, rooted in the deepest distrust of governmental power, the same distrust that conservatives have historically voiced about governmental involvement in areas other than speech.

Until recently, conservatives found the First Amendment hard going. Judge Alex Kozinski of the United States Court of Appeals once observed that commercial speech - speech advocating the purchase of goods and services - was the stepchild of First Amendment law: "liberals don't much like commercial speech because it's commercial; conservatives mistrust it because it's speech."

History has much to do with this. "The First Amendment," Yale University law professor J. M. Balkin has written, "normally has been the friend of left-wing values, whether it was French ŽmigrŽs and Republicans in the 1790s, abolitionists in the 1840s, pacifists in the 1910s, organized labor in the 1920s and 1930s, or civil rights protesters in the 1950s and 1960s."

New issues - conservative ones - have led to reconsideration by many conservatives of the First Amendment. The right to spend money to support one's political favorites, to engage in commercial speech, to say things that "hate speech" codes might punish, and to protest outside abortion clinics all resonate with conservatives. It is they, after all, who have more money to spend and who tend to run the corporations that engage in commercial speech. The young people on campus who say the often outrageous and sometimes racist things that run afoul of speech codes are often of the right. Dedicated right-to-life proponents are even more likely to be so.

But liberals, nonetheless, should resist the temptation to opt for narrowed First Amendment protections. They should recall, if only in their own self-interest, that censorship of speech has long been all too congenial to the American public. From the time of the Alien and Sedition Acts, which led to the jailing of Jefferson supporters who had criticized President John Adams, censorship in America has generally been aimed at the left. The right may profit more these days from an expansive reading of the First Amendment but the day will surely come when only a broadly interpreted First Amendment will protect speech the left cares about.

 Most of all, liberals should understand that the First Amendment is bottomed on a "worst-case scenario" - more particularly, a worst-government-case scenario. It is at the very core of the First Amendment to "presume" (in Fiss's word) that the state will use its powers to skew public discussion in its favor. It is at the very heart of the First Amendment to deny government the authority to pick and choose among speakers and messages, determining that some may and others may not be heard - and how often.

It is not hard to understand what it is about First Amendment law that has led to the current liberal disenchantment. The wrong people are speaking; they have too much money behind them; they are saying too much. But when that sort of thinking becomes a basis for legislation, it is at war with the First Amendment.

I participated in the First Amendment forum conducted by The Nation. In thinking then, as now, about whether people mean what they say about the First Amendment, I recalled Justice Oliver Wendell Holmes's incessantly quoted observation that freedom of speech means freedom for the speech we hate. That position is now so much a part of American popular culture that it sounds more fit for the Jeopardy board than Supreme Court opinion. But does anyone really mean it?

The Nation's own words tell the story. Because "the wrong side" keeps "winding up with the First Amendment in its corner," The Nation's editors suggest that we rethink our First Amendment views. Did it ever occur to them, I wonder, to rethink their political positions to avoid being on the wrong side of the First Amendment?

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