I have posted to SSRN my new article, “Collective Liberty.” This article brings together several themes I’ve developed on the blog over the years with respect to the move on the left towards a collective notion of free speech and exercise, mirrored by the move on the right towards more robust protection for freedom of speech and exercise. Here is the abstract:
The story of our Constitution is a tale of two liberties: individual freedom and collective freedom. The inherent tension between these the two is well known. Judicial protection of individual liberty inhibits the collective from freely arranging society through the democratic process. In contrast, judicial protection of this collective freedom to structure society may infringe on individual liberty, especially for those out of the mainstream. Like a pendulum, over the last century, the rights of free speech and exercise have swung between the individual and the collective, between right and left. This article traces these arcs from individual liberty to collective liberty, and back.
Historically, progressives tended to favor broad conceptions of individual rights, with respect to protecting unpopular speech and minority religious groups. Conservatives, in contrast, often disfavored such rights to the extent they impeded the preservation of traditional social norms and structuring society. In recent years there has been a reversal, as the right has asserted the mantle of individual liberty against claims of governmental intrusion into time-honored institutions. But for the left, a robust freedom of speech and religion—no longer serving progressive causes of social justice and equality—can now more easily be subordinated to what Justice Breyer referred to as “collective” liberty.
By looking at two controversial cases in this arena—McCutcheon v. FEC and Burwell v. Hobby Lobby—this article chronicles the juxtaposition of positions on the right and left between collective, and individual views of rights, and explains what this means for the development of the First Amendment on the Roberts Court, as freedom from government clashes with freedom by government.
I will be presenting this paper next week at the Floyd Abrams Freedom of Expression Scholars Conference at Yale Law School. The hosts of the conference said my proposal was “provocative.” I suspect it will be.
I welcome any comments or insights you have.