Liberals Turn on the First Amendment

It is no surprise that today’s Left has little use for free speech. Its predominant tactic is trying to bully its opponents into silence. Still, this New York Times article, titled “First Amendment, ‘Patron Saint’ of Protesters, Is Embraced by Corporations,” is of interest, if only for the lack of self-knowledge on display.

Liberals used to love the First Amendment. But that was in an era when courts used it mostly to protect powerless people like civil rights activists and war protesters.

The First Amendment protects people who are being told to shut up. These days, those people are mostly conservatives.

Tim Wu, a law professor at Columbia, described the shift in First Amendment doctrine in 2013 in The New Republic.

“Once the patron saint of protesters and the disenfranchised, the First Amendment has become the darling of economic libertarians and corporate lawyers who have recognized its power to immunize private enterprise from legal restraint,” Professor Wu wrote.

From legal restraint on speech, yes. That is the purpose of the First Amendment. Corporations like the New York Times Company and the Sierra Club have free speech rights, just like individuals.

In the next two decades, the Supreme Court continued to protect dissent, twice voting to strike down laws banning flag burning. But now, Professor Neuborne wrote, broad coalitions of justices also voted to protect the powerful.

Have you noticed a clause in the First Amendment saying that it doesn’t apply to “the powerful?” No, I haven’t either. Of course, when liberals refer to “the powerful,” they don’t mean journalists, liberal philanthropists, labor unions, government officials and so on. They mean people who have money that the liberals would like to get their hands on.

Before 1976, First Amendment challenges from corporations generally involved companies in the business of free expression, like newspapers, book publishers and film producers. More recently, companies have filed free-speech challenges to laws regulating how ordinary products may be marketed or advertised.

Of course, the First Amendment doesn’t only apply to people who are “in the business of free expression.” It protects you and me, and companies that don’t publish newspapers, too.

Professor Coates also analyzed data from federal appeals courts, finding that “businesses are growing steadily more aggressive in their use of the First Amendment.” Court dockets these days are full of free-speech challenges from pharmaceutical firms, tobacco companies, miners, meat producers and airlines.

Such lawsuits, he wrote, have pernicious consequences for both free enterprise and the rule of law. Corporations are diverting resources from research and innovation to litigation, he wrote.

This is unintentionally hilarious. Litigation distracts companies from research and innovation? Do tell! Liberals have finally found a category of litigation they don’t like.

In a recent essay, Laurence H. Tribe, a law professor at Harvard, offered a cautious partial defense of the Citizens United decision. But he said it was an instance of a larger phenomenon.

“It is part of a trend in First Amendment law that is transforming that body of doctrine into a charter of largely untrammeled libertarianism,” he wrote….

“A charter of largely untrammeled libertarianism” is a pretty good description of the First Amendment, and, for that matter, the Constitution as a whole. Liberals’ hostility toward free speech is merely a function of the fact that their oxen are now, on occasion, being gored.

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