The Right’s First Amendment
The Politics of Free Speech & the Return of Conservative Libertarianism
Wayne Batchis

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Preface

It doesn’t take a political scientist to see that America is politically polarized. “Blue states” and “red states” have become the ubiquitous shorthand for a seemingly irreconcilable ideological gulf that has poisoned the well of collegiality, compromise, and accomplishment in Congress and in American politics generally. It likewise doesn’t take a legal scholar to see that the U.S. Supreme Court has fed this intractable divide with repeated 5–4 decisions partitioned along sharp ideological lines. The media’s obsessive focus on 5–4 opinions paints a portrait of judicial decision making that all too often resembles, not a rule of law, but a rule of raw, partisan majoritarianism.

This narrative, although simplified for public consumption, is not completely lacking in merit. Today, ideological alignment on the Court is correlated with the political party of the president who appointed the justice to an unprecedented historical extent.1 There is unquestionably a relationship between ideology and Supreme Court decision making, and many political scientists applaud this acknowledgment; indeed, many have actively focused the public eye on this relationship.2

I have a background in two traditions. I am both a political scientist and a legal scholar. I believe there is much more to the story. I believe that legal interpretation matters—and it matters in a way that is inherently distinct from politics. Law and politics, in other words, should be understood as neither purely dichotomous nor nihilistically conflated. The balance lies somewhere in between; and in my view, there is perhaps no better illustration of this messy truth than in the politics and jurisprudence of free speech—consecrated in the very first of America’s twenty-seven constitutional amendments.

Why the First Amendment? Free speech is enraging. It is degrading. It is frightening and shocking. Free speech means having one’s most cherished beliefs dragged through the proverbial mud. It means that self-esteem, cultural pride, and national honor will be trampled; deeply held social norms will be callously flouted. For the political right and left, free speech is an open-ended and empowering tool for one’s ideological adversaries. It is also—for good reason—a freedom that is among the most sacred and zealously guarded keystones of America’s civic religion.

In the abstract, free speech is lionized. In practical, everyday life, it can manifest as ugly, painful, humiliating, and arguably damaging to American security and democracy. One might presume, then, that freedom of speech—with its profound ability to either aid or wound “both” political camps—would be an example of an ideologically neutral constitutional principle that is truly above politics. This, however, is not the case. Particular constitutional rights can be favored or disfavored by the right or left respectively at different periods in political history—and the First Amendment is no exception.

This study explores the interplay between political ideology and constitutional principle. The relationship, as I try to convey, is not a simple one. It is rife with nuance. It is the kind of nuance that might make purists—if such purists indeed exist—in both the “law is law” camp and the “law is politics” camp moderately uncomfortable. I believe that such discomfort is entirely healthy. The line between constitutional principle and ideology is both blurry and essential to the framers’ design. In my view, denying the relationship between political ideology and constitutional interpretation would be naïve; but, even worse, denying there is an important and very real distinction between the two would be a democratic (with a small “d”) suicide pact.

The story of this study is not neat and tidy. Many will eagerly poke holes in the broad conclusion that the political right in the United States has moved in a speech-protective direction, pointing to the many exceptions to this thesis, both on and off the Court. As I willingly concede, qualitative and quantitative assessments of the contemporary relationship between conservatism and free-speech values run the gamut. In part, this is due to the fact that the very meaning of “free speech” is contested. How can one be said to be pro–free speech if what one supports is, to one’s detractors, not “speech” at all? Being pro–free speech might mean supporting a right to spend money, advertise Viagra, engage in sexually explicit performance art, exclude homosexuals from an association, burn draft cards, or burn crosses—and many, on both sides of the political spectrum, simply deny that the First Amendment has any relationship to these actions. The principle of free speech, in other words, cannot be separated from the meaning of free speech. One man’s freedom of speech may, to another, have nothing whatsoever to do with speech.

Furthermore, and perhaps even more confounding, what are we to make of a situation where two purported free-speech interests are pitted against each other? Is the advocate for a dissenting shareholder’s free-speech right not to be forced to speak any less pro–free speech than the advocate of unlimited corporate spending on campaign speech that disregards such shareholder dissent? How about the shopping mall owner who seeks to exercise her First Amendment right to convey a message of unbridled free-market capitalism by excluding Occupy Wall Street protestors, who themselves seek to freely express their views on mall property? Who gets to claim the prize? Who gets the gold medal for free-speech advocacy? To what extent might one’s answer turn on one’s political worldview?

Truly understanding the relationship between constitutional interpretation and political ideology—particularly with regard to the First Amendment—demands so much more than a mere crunching of judicial voting data, a favorite pastime of many political scientists. And it also quite clearly calls for looking far beyond the pure doctrinal analysis found in court opinions, a central focus of many legal scholars. In short, it’s complicated. The relationship is nonetheless a real one—one with very real implications for American society and indeed for democracy itself.

In the recent past, a robust freedom of speech has been understood to be a core value of contemporary liberalism—and perceived to be antithetical to modern conservatism. Being aggressively pro–free speech was as comfortably associated with American political liberalism as being pro-choice, pro–affirmative action, or pro–gun control. Particularly during the heyday of the Warren Court, opinions protecting the right to freely express controversial, distasteful, or ostensibly immoral ideas were derided by conservatives and hailed by liberals. Contemporary liberalism seemed to consistently stand on the side of the First Amendment, even when the short-term costs were perceived to be relatively high. Political and jurisprudential conservatives, in contrast, saw a First Amendment that was less of an absolute—a guarantee that could be balanced more comfortably against the democratic needs of civility and morality in some areas or evaded entirely in others.

With little notice, this political dynamic has been shaken to the core. Today, a critical mass of conservatives both on and off the Supreme Court are much more willing than they have been in the past to agree with their liberal counterparts that speech is deserving of First Amendment protection. In many instances, political liberals find themselves on the opposite end of the spectrum, advocating a narrower First Amendment. At the same time, the First Amendment has become an affirmative tool for advancing mainstream conservative policy objectives. A conservative legal movement has gained influence and has increasingly advocated a First Amendment approach to combating what it characterizes as liberal political correctness on college campuses. Conservatives on the Court have used the First Amendment to ensure greater corporate representation in American politics by allowing unlimited corporate spending on campaign speech. The Court has advanced conservative moral views—and curtailed minority representation—by utilizing the First Amendment’s non-textual “right of the association” to strike down laws aimed at preventing organizations such as the Boy Scouts from discriminating against homosexuals.

Constitutional principles do not live in political isolation; politicians, pundits, commentators, and ideologically inclined scholars have adopted entrenched, passionate, and influential positions on constitutional meaning. This study brings together a close examination of the evolving political and ideological perspective on free speech with a fine-grained analysis of the shifting doctrinal and jurisprudential approach taken by the conservative members of the Supreme Court. On the political side, I anchor the study in an examination of the preeminent conservative publication, National Review. Its sixty-year history tells the story of modern American conservatism and reveals a fascinating shift in the way political conservatives have come to view the expressive rights guaranteed in the First Amendment. I show how the constitutional freedom of speech now carries a much more complex and nuanced political identity. In the process, I explore the ways in which this has, or has not, translated into doctrinal change on the Court.

Once acknowledged, these broader jurisprudential and political trends raise important questions. Does this shift represent a genuine and principled change in conservative philosophy regarding the role of the First Amendment in representative democracy? In the alternative, might we explain this trend, at least in part, as a results-oriented political expedient? How do ideologically inspired goals affect legal doctrine, and vice versa? And perhaps most importantly, what do these changes suggest for the future of First Amendment interpretation?

As with any project this size, I have by necessity made hard choices as to its scope. This is not a treatise on the First Amendment, and economy required that many important and interesting First Amendment cases simply could not be discussed while others receive only brief treatment. This is also primarily a book about ideas. There is a rich backstory to the intriguing interplay of ideology and doctrine on and off the Court: the world of conservative legal advocacy. The rise of the conservative legal movement is a fascinating and consequential tale, one deserving of its own book-length treatment. And indeed, there have been a number of excellent scholarly books on the subject in recent years. I tread only lightly on this subject.

The Introduction broaches the topic by taking a broad look at the relationship between conservatism and free speech over time—both on and off the high court. I then set the stage by exploring the earliest Supreme Court First Amendment decisions, most of which focused on the rights of communists and other dissident political minorities. Chapter 1 begins by exploring the concept of political conservatism. I look at the contents of the influential publication National Review, a longstanding barometer of mainstream conservative political thought, and assess its evolving view of free speech. In Chapter 2 I contemplate the contrasting approaches to understanding judicial decision making taken by political science and legal scholarship. I ask what it means to explore the First Amendment from a political perspective and why it is a useful and important exercise. I examine the lack of consensus, scholarly or otherwise, regarding the relationship between free-speech values and conservative politics and propose a new way forward—one that draws on both political science and legal models of judicial decision making.

In Chapters 3 and 4, I examine what I refer to as the political correctness backlash. In Chapter 3 I show how the conservative war on perceived political correctness, particularly on university campuses, would come to define the political landscape in the late 1980s and 1990s and would help redefine the conservative perspective on free speech and expression. I explore the popular anti-PC literature; the high-profile controversies at schools such as Yale, Dartmouth, and the University of Pennsylvania; and the speech-code policies that ultimately led to a conservative embrace of the First Amendment. Chapter 4 turns its attention to the judiciary’s entrance into the political correctness debate, examining a number of Supreme Court decisions in depth and looking to the legal mobilization the debate inspired.

Chapters 5 and 6 focus on another significant inspiration for the evolving conservative view on the First Amendment: the rise of free-market conservatism and commercial speech. Chapter 5 focuses on the 1970s and 1980s, a period in which the conservative perspective on free speech in the commercial context was in a state of flux and a time when the Supreme Court radically remade its commercial speech doctrine. Chapter 6 moves us into the present, showing how the conservative view on commercial speech has solidified and how even traditional conservatives who had been inclined to reject broad free-speech rights moved in a speech-protective direction.

Finally, in Chapter 7 I approach the topic from a different angle. This chapter is a case study in what can go wrong in First Amendment interpretation, particularly when ideology acts as an impetus for doctrinal change. I critically examine the freedom of associational speech, a doctrine that reached its apogee in the 2010 decision Citizens United v. FEC. The chapter closely traces the politically liberal roots of the Supreme Court’s freedom of association jurisprudence and critiques the way it was ultimately utilized by conservatives in Citizens United.

Notes

1. Linda Greenhouse, for example, rightfully points out in a New York Times op-ed that for the first time in history, all Republican-appointed justices are to the right of all Democratic appointees. Linda Greenhouse, Op-Ed., Polar Vision, N.Y. TIMES, May 28, 2014, http://www.nytimes.com/2014/05/29/opinion/greenhouse-polar-vision.html.

2. See, for example, Adam Liptak, Sidebar, In Justices’ Votes, Free Speech Often Means “Speech I Agree With,” N.Y. TIMES, May 6, 2014, at A15.