In my post describing the odd turn of the left from speech viewed in terms of liberty, towards speech viewed in terms of equality, what I have dubbed “collective liberty,” I noted that “I imagine many in the ACLU from the Floyd Abrams generation can’t stomach this position.”
Now Floyd Abrams has weighed in. And I was right.
What seems to me most surprising and disturbing about the ruling, though, is not to be found in the predictably much assaulted (and I believe sound) majority opinion but in the dissent. For there, for the first time, Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan join with Justice Stephen Breyer’s minimization of long-recognized and well-established First Amendment interests by maintaining that, after all, the side seeking to overcome those interests had at least as strong a First Amendment argument on its side.
I similarly noted this bizarre reversal of burdens, which puts strict scrutiny on its head:
What determines if speech is protected is whether it “preserve[s] a democratic order” for the “collective” good. That is a very troubling vision of free expression. There is a lot of speech that may serve individualistic ends, and under strict scrutiny, it is the government’s burden to show why a compelling interest exists to limit that speech. It is not the individual’s burden to show that his expression is made in pursuance of some nebulously defined common good. Whether or not you agree with the majority’s (narrow) definition of corruption, Breyer’s discussion of free speech on pages 5-6 is troubling.
Abrams also surveys Active Liberty, which I noted in my previous post articulates a collective, rather than individual notion of free speech.
In his book Active Liberty: Interpreting Our Democratic Constitution (2006), Justice Breyer offered an overview of the First Amendment which posited that its primary purpose was not to protect speech from government control or limitation but “to encourage the exchange of information and ideas necessary for citizens themselves to shape that ‘public opinion which is the final source of government in a democratic state.’” A statute limiting independent spending on political speech is thus defensible against a First Amendment challenge and indeed serves First Amendment interests since it “facilitate[s] a conversation among ordinary citizens that will encourage their informed participation.” In his dissenting opinion in McCutcheon, Breyer takes that a step further, concluding that “the First Amendment advances not only the individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters.” (emphasis in original). The First Amendment, he maintains, must be understood as promoting “a government where the laws reflect the very thoughts, views, ideas and sentiments, the expression of which the First Amendment protects.”
Abrams finds these positions, joined by all 4 liberals on the court, “disquieting.”
These statements are not totally at odds with the First Amendment. But they are deeply disquieting. It is true that by restricting the ability of the government to control, let alone limit, speech, the First Amendment surely assists in preserving “democratic order.” But giving the government, in the name of advancing democracy, significant power to limit the amount of speech about who to vote for risks much that the First Amendment was adopted to protect. And what, after all, does Justice Breyer mean by “collective speech?” In his opinion, Chief Justice John Roberts persuasively objects to relying on the “generalized conception of the public good” set forth in the Breyer dissent, taking issue with the very notion of “collective speech” as being contrary to “the whole point of the First Amendment” of not permitting the will of the majority to carry the day by preventing speech of which it disapproved.
And this helpful article from The Nation traces some of the origins of this “anti-liberal” view of speech.
Call it left-wing anti-liberalism: the idea, captured by Herbert Marcuse in his 1965 essay“Repressive Tolerance,” that social justice demands curbs on freedom of expression. “[I]t is possible to define the direction in which prevailing institutions, policies, opinions would have to be changed in order to improve the chance of a peace which is not identical with cold war and a little hot war, and a satisfaction of needs which does not feed on poverty, oppression, and exploitation,” he wrote. “Consequently, it is also possible to identify policies, opinions, movements which would promote this chance, and those which would do the opposite. Suppression of the regressive ones is a prerequisite for the strengthening of the progressive ones.”
And more from Joel Gora, a long-time member of the ACLU and defender of free speech:
Secondly, the current Court clearly continues to put the burden of proof on government to justify restrictions on the funding of campaign and electoral speech, which is clearly as it should be under the First Amendment. To this Court, the benefit of the doubt clearly goes to the speaker, not the censor, in campaign finance cases and across the First Amendment spectrum.
I will try to write something further on collective liberty.