With the major exception of campaign finance, I’m inclined to think that the near-libertarian consensus that’s grown around the First Amendment is a good thing. But it is an international outlier, and there is a potentially intelligent argument out there exploring the advantages of other ways of thinking about free speech, even if I would be highly unlikely to find it persuasive. But, atypically, Eric Posner’s First Amendment critique is not that — it’s somewhere between “#Slatepitch” and “outright trolling.” I hardly know where to begin. Well:
But there is another possible response. This is that Americans need to learn that the rest of the world—and not just Muslims—see no sense in the First Amendment. Even other Western nations take a more circumspect position on freedom of expression than we do, realizing that often free speech must yield to other values and the need for order. Our own history suggests that they might have a point.
Despite its 18th-century constitutional provenance, the First Amendment did not play a significant role in U.S. law until the second half of the 20th century. The First Amendment did not protect anarchists, socialists, Communists, pacifists, and various other dissenters when the U.S. government cracked down on them, as it regularly did during times of war and stress.
It is true that the modern understanding of the First Amendment did not become entrenched in American constitutionalism until the 1960s. But that’s neither here not there unless Posner can point to the advantages of the previous regime, which he rather conspicuously fails to do in a remotely convincing fashion. Personally, I don’t long for the days in which you could be thrown in horrible jails and fined the modern equivalent of hundreds of thousands of dollars for criticizing a public official, or in which a prominent labor leader could receive a ten-year prison sentence for making an anti-war speech. I don’t pine for the era in which schoolchildren could be coerced into giving a Nazi-style salute to the flag and subject to expulsion and/or physical assault if they didn’t comply. The dissenters who mocked the idea that the repression of powerless dissenters was all that stood between us and an American Stalin during the Red Scare were obviously right. The pre-Warren Court conception of free speech that Posner cites admiringly is in fact an excellent argument in favor of the contemporary understanding.
Even more depressingly, Posner gives us the same willful misunderstandings one would expect from College Republicans holding an Affirmative Action Bake Sale but are odd coming from a professor at an elite law school:
Meanwhile, some liberals began to have second thoughts. They supported enactment of hate-crime laws that raised criminal penalties for people who commit crimes against minorities because of racist or other invidious motives. They agreed that hate speech directed at women in the workplace could be the basis of sexual harassment claims against employers as well.
This is just transparently wrong. Whether one agrees with them or not, hate crimes laws don’t suppress speech per se, and taking invidious motives into account when assessing relative culpability is utterly banal. (Does Posner think that laws that make distinctions between first degree murder and manslaughter conflict with the modern understanding of the First Amendment because they take intent into account, sometimes using speech acts as evidence?) Sexual harassment laws, similarly, are not suppression of speech any more than laws banning conspiracies to extort are. Even Douglas and Black would quickly concede that when speech is brigaded with conduct it not longer automatically receives First Amendment protection.
Anyway, what are the advantages of the era in which the First Amendment was an empty shell supposed to be? Well, he never gets around to telling us, but he does have a nice non-sequitur in which he explains that actual rights should trump phoney-baloney rights:
Americans have not always been so paralyzed by constitutional symbolism. During the Cold War, the U.S. foreign policy establishment urged civil rights reform in order to counter Soviet propagandists’ gleeful reports that Americans fire-hosed black protesters and state police arrested African diplomats who violated Jim Crow laws. Rather than tell the rest of the world to respect states’ rights—an ideal as sacred in its day as free speech is now—the national government assured foreigners that it sought to correct a serious but deeply entrenched problem.
- “States’ rights” were never “sacred.” Jim Crow politicians didn’t care about state autonomy; they cared about segregation. Gilded Age judges who tried to enforce ridiculously narrow readings of the commerce clause also invented doctrines that constrained the ability of the states to regulate the economy, because they cared about laissez-faire capitalism, not about states’ “rights.” From the Louisiana Purchase to the Fugitive Slave Act southern “strict constructionists” always managed to find room in their hearts for constitutionally dubious expansions of federal power so long as they entrenched the slave power. Etc. Etc. Etc. Of course the federal government didn’t believe that “rights” nobody actually cares about should trump fundamental human rights when this created international embarrassment for the United States. What this has to do with the First Amendment I have no idea.
- I can understand why Posner would prefer not to bring this up, but if we’re going to use civil rights as a rhetorical cudgel here, it seems relevant to note that the systematic repression of freedom of speech and freedom of association were crucial to the maintenance of both the slave power and the apartheid police states that emerged after Reconstruction. Odd how this doesn’t make it into Posner’s narrative about the good old days when we weren’t bound by the “symbolism” of providing robust protection for free speech rights.
There might be a case worth hearing for why the anti-Muslim video should cause us to reflect on our current understanding of the First Amendment. Posner’s sure isn’t that.