I recently gave a talk at the fantastic Constitutional Law Colloquium on a topic I’ve been developing, called “Collective Liberty.” Much of my talk uses the divide within the ACLU over McCutcheon as a lens to explain diverging views of the protection of free speech when it contrasts with what I broadly term “social justice.” Here is the abstract of the paper, and a video of my talk:
In McCutcheon v. FEC, Justice Breyer referred to the freedom of speech, not only as an “individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters.” This notion of a collective First Amendment was emphatically rejected by the majority opinion that explained that “the First Amendment safeguards an individual’s right to participate in the public debate through political expression and political association.” Chief Justice Roberts retorted, “there are compelling reasons not to define the boundaries of the First Amendment by reference to such a generalized conception of the public good.”
The conflict between individual liberty and collective liberty is not new. But, Justice Breyer’s opinion may signal a shifting trend in broader thought on speech, and liberty more generally, on the left. This is evident in the ACLU’s decision not to file a brief in McCutcheon, reflecting a divide among its members. As Floyd Abrams opined, the dissent offers a “very troubling vision of free expression” and is “deeply disquieting.” With respect to speech, modern-day liberalism seems to be drifting away from protecting individual freedom, and more towards constitutionality guaranteeing equality.
Historically, liberals favored broad conceptions of individual rights, with respect to protecting obscene and unpopular speech, minority religious groups, the right to private association, and others. But in recent years there has been a switch in positions. Now, conservatives advocate robust views of individual expression to promote corporate and campaign speech. Liberals, as exemplified by Justice Breyer’s dissent advocate for free speech that serves a collective good. Today, conservatives rely on a broad reading of RFRA, a law designed to protect the rights of religious minority groups, to justify denying contraceptives to employees under the Affordable Care Act. While once the membership lists of the NAACP, and the right to privately associate were held sacrosanct, today liberal groups seek to unmask those who signed petitions opposing gay marriage. Not quite fitting into that mold, but consistent, is the Second Amendment: viewed by conservatives as an individual right, and viewed by liberals as a collective right.
Collective Liberty chronicles the juxtaposition of positions among liberals and conservatives between collective, and individual views of rights, and explains what this means for the First Amendment on the Roberts Court.