How Conservatives Weaponized the First Amendment – The New York Times

Good long read and analysis:

On the final day of the Supreme Court term last week, Justice Elena Kagan sounded an alarm.

The court’s five conservative members, citing the First Amendment, had just dealt public unions a devastating blow. The day before, the same majority had used the First Amendment to reject a California lawrequiring religiously oriented “crisis pregnancy centers” to provide women with information about abortion.

Conservatives, said Justice Kagan, who is part of the court’s four-member liberal wing, were “weaponizing the First Amendment.”

The two decisions were the latest in a stunning run of victories for a conservative agenda that has increasingly been built on the foundation of free speech. Conservative groups, borrowing and building on arguments developed by liberals, have used the First Amendment to justify unlimited campaign spending, discrimination against gay couples and attacks on the regulation of tobacco, pharmaceuticals and guns.

“The right, which had for years been hostile to and very nervous about a strong First Amendment, has rediscovered it,” said Burt Neuborne, a law professor at New York University.

The Citizens United campaign finance case, for instance, was decided on free-speech grounds, with the five-justice conservative majority ruling that the First Amendment protects unlimited campaign spending by corporations. The government, the majority said, has no business regulating political speech.

The dissenters responded that the First Amendment did not require allowing corporate money to flood the political marketplace and corrupt democracy.

“The libertarian position has become dominant on the right on First Amendment issues,” said Ilya Shapiro, a lawyer with the Cato Institute. “It simply means that we should be skeptical of government attempts to regulate speech. That used to be an uncontroversial and nonideological point. What’s now being called the libertarian position on speech was in the 1960s the liberal position on speech.”

And an increasingly conservative judiciary has been more than a little receptive to this argument. A new analysis prepared for The New York Times found that the Supreme Court under Chief Justice John G. Roberts Jr. has been far more likely to embrace free-speech arguments concerning conservative speech than liberal speech. That is a sharp break from earlier eras.

As a result, liberals who once championed expansive First Amendment rights are now uneasy about them.

“The left was once not just on board but leading in supporting the broadest First Amendment protections,” said Floyd Abrams, a prominent First Amendment lawyer and a supporter of broad free-speech rights. “Now the progressive community is at least skeptical and sometimes distraught at the level of First Amendment protection which is being afforded in cases brought by litigants on the right.”

Many on the left have traded an absolutist commitment to free speech for one sensitive to the harms it can inflict.

Take pornography and street protests. Liberals were once largely united in fighting to protect sexually explicit materials from government censorship. Now many on the left see pornography as an assault on women’s rights.

In 1977, many liberals supported the right of the American Nazi Party to march among Holocaust survivors in Skokie, Ill. Far fewer supported the free-speech rights of the white nationalists who marched last year in Charlottesville, Va.

There was a certain naïveté in how liberals used to approach free speech, said Frederick Schauer, a law professor at the University of Virginia.

“Because so many free-speech claims of the 1950s and 1960s involved anti-obscenity claims, or civil rights and anti-Vietnam War protests, it was easy for the left to sympathize with the speakers or believe that speech in general was harmless,” he said. “But the claim that speech was harmless or causally inert was never true, even if it has taken recent events to convince the left of that. The question, then, is why the left ever believed otherwise.”

Some liberals now say that free speech disproportionately protects the powerful and the status quo.

“When I was younger, I had more of the standard liberal view of civil liberties,” said Louis Michael Seidman, a law professor at Georgetown. “And I’ve gradually changed my mind about it. What I have come to see is that it’s a mistake to think of free speech as an effective means to accomplish a more just society.”

To the contrary, free speech reinforces and amplifies injustice, Catharine A. MacKinnon, a law professor at the University of Michigan, wrote in “The Free Speech Century,” a collection of essays to be published this year.

“Once a defense of the powerless, the First Amendment over the last hundred years has mainly become a weapon of the powerful,” she wrote. “Legally, what was, toward the beginning of the 20th century, a shield for radicals, artists and activists, socialists and pacifists, the excluded and the dispossessed, has become a sword for authoritarians, racists and misogynists, Nazis and Klansmen, pornographers and corporations buying elections.”

Changing Interpretations

In the great First Amendment cases in the middle of the 20th century, few conservatives spoke up for the protection of political dissenters, including communists and civil rights leaders, comedians using vulgar language on the airwaves or artists exploring sexuality in novels and on film.

In 1971, Robert H. Bork, then a prominent conservative law professor and later a federal judge and Supreme Court nominee, wrote that the First Amendment should be interpreted narrowly in a law-review article that remains one of the most-cited of all time.

“Constitutional protection should be accorded only to speech that is explicitly political,” he wrote. “There is no basis for judicial intervention to protect any other form of expression, be it scientific, literary or that variety of expression we call obscene or pornographic.”

But a transformative ruling by the Supreme Court five years later began to change that thinking. The case, a challenge to a state law that banned advertising the prices of prescription drugs, was filed by Public Citizen, a consumer rights group founded by Ralph Nader. The group argued that the law hurt consumers, and helped persuade the court, in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, to protect advertising and other commercial speech.

The only dissent in the decision came from Justice William H. Rehnquist, the court’s most conservative member.

Kathleen M. Sullivan, a former dean of Stanford Law School, wrote that it did not take long for corporations to see the opportunities presented by the decision.

Conservatives in Charge, the Supreme Court Moved Right

Justice Anthony M. Kennedy’s last Supreme Court term contained hints of his retirement and foreshadowed a lasting rightward shift.

“While the case was litigated by consumer protection advocates,” she wrote in the Harvard Law Review, “corporate speakers soon became the principal beneficiaries of subsequent rulings that, for example, struck down restrictions on including alcohol content on beer can labels, limitations on outdoor tobacco advertising near schools and rules governing how compounded drugs may be advertised.”

That trend has continued, with businesses mounting First Amendment challenges to gun control laws, securities regulations, country-of-origin labels, graphic cigarette warnings and limits on off-label drug marketing.

“I was a bit queasy about it because I had the sense that we were unleashing something, but nowhere near what happened,” Mr. Nader said. “It was one of the biggest boomerangs in judicial cases ever.”

“I couldn’t be Merlin,” he added. “We never thought the judiciary would be as conservative or corporate. This was an expansion that was not preordained by doctrine. It was preordained by the political philosophies of judges.”

Not all of the liberal scholars and lawyers who helped create modern First Amendment law are disappointed. Martin Redish, a law professor at Northwestern University, who wrote a seminal 1971 article proposing First Amendment protection for commercial speech, said he was pleased with the Roberts court’s decisions.

“Its most important contributions are in the commercial speech and corporate speech areas,” he said. “It’s a workmanlike, common sense approach.”

Liberals also played a key role in creating modern campaign finance law in Buckley v. Valeo, the 1976 decision that struck down limits on political spending by individuals and was the basis for Citizens United, the 2010 decision that did away with similar limits for corporations and unions.

One plaintiff was Senator Eugene J. McCarthy, Democrat of Minnesota, who had challenged President Lyndon B. Johnson in the 1968 presidential primaries — from the left. Another was the American Civil Liberties Union’s New York affiliate.

Professor Neuborne, a former A.C.L.U. lawyer, said he now regrets the role he played in winning the case. “I signed the brief in Buckley,” he said. “I’m going to spend long amounts of time in purgatory.”

To Professor Seidman, cases like these were part of what he describes as a right-wing takeover of the First Amendment since the liberal victories in the years Chief Justice Earl Warren led the Supreme Court.

“With the receding of Warren court liberalism, free-speech law took a sharp right turn,” Professor Seidman wrote in a new article to be published in the Columbia Law Review. “Instead of providing a shield for the powerless, the First Amendment became a sword used by people at the apex of the American hierarchy of power. Among its victims: proponents of campaign finance reform, opponents of cigarette addiction, the L.B.G.T.Q. community, labor unions, animal rights advocates, environmentalists, targets of hate speech and abortion providers.”

The title of the article asked, “Can Free Speech Be Progressive?”

“The answer,” the article said, “is no.”

Shifting Right

The right turn has been even more pronounced under Chief Justice Roberts.

The Supreme Court has agreed to hear a larger share of First Amendment cases concerning conservative speech than earlier courts had, according to the study prepared for The Times. And it has ruled in favor of conservative speech at a higher rate than liberal speech as compared to earlier courts.

The court’s docket reflects something new and distinctive about the Roberts court, according to the study, which was conducted by Lee Epstein, a law professor and political scientist at Washington University in St. Louis; Andrew D. Martin, a political scientist at the University of Michigan and the dean of its College of Literature, Science and the Arts; and Kevin Quinn, a political scientist at the University of Michigan.

“The Roberts court — more than any modern court — has trained its sights on speech promoting conservative values,” the study found. “Only the current court has resolved a higher fraction of disputes challenging the suppression of conservative rather than liberal expression.”

The court led by Chief Justice Earl Warren from 1953 to 1969 was almost exclusively concerned with cases concerning liberal speech. Of its 60 free-expression cases, only five, or about 8 percent, challenged the suppression of conservative speech.

The proportion of challenges to restrictions on conservative speech has steadily increased. It rose to 22 percent in the court led by Chief Justice Warren E. Burger from 1969 to 1986; to 42 percent in the court led by Chief Justice William H. Rehnquist from 1986 to 2005; and to 65 percent in the Roberts court.

The Roberts court does more than hear a larger proportion of cases concerning conservative expression. It is also far more likely than earlier courts to rule for conservative speech than for liberal speech. The result, the study found, has been “a fundamental transformation of the court’s free-expression agenda.”

In past decades, broad coalitions of justices have often been receptive to First Amendment arguments. The court has protected videos of animal cruelty, hateful protests at military funerals, violent video games and lies about military awards, often by lopsided margins.

But last week’s two First Amendment blockbusters were decided by 5-to-4 votes, with the conservatives in the majority ruling in favor of conservative plaintiffs.

On Tuesday, Justice Clarence Thomas wrote for the majority that requiring health clinics opposed to abortion to tell women how to obtain the procedure violated the clinics’ free-speech rights. In dissent, Justice Stephen G. Breyer said that was a misuse of First Amendment principles.

“Using the First Amendment to strike down economic and social laws that legislatures long would have thought themselves free to enact will, for the American public, obscure, not clarify, the true value of protecting freedom of speech,” Justice Breyer wrote.

On Wednesday, in announcing the decision on public unions, Justice Samuel A. Alito Jr. said the court was applying settled and neutral First Amendment principles to protect workers from being forced to say things at odds with their beliefs. He suggested that the decision on public unions should have been unanimous.

“Compelling individuals to mouth support for views they find objectionable violates that cardinal constitutional command, and in most contexts, any such effort would be universally condemned,” he wrote. “Suppose, for example, that the State of Illinois required all residents to sign a document expressing support for a particular set of positions on controversial public issues — say, the platform of one of the major political parties. No one, we trust, would seriously argue that the First Amendment permits this.”

In response, Justice Kagan said the court’s conservatives had found a dangerous tool, “turning the First Amendment into a sword.” The United States, she said, should brace itself.

“Speech is everywhere — a part of every human activity (employment, health care, securities trading, you name it),” she wrote. “For that reason, almost all economic and regulatory policy affects or touches speech. So the majority’s road runs long. And at every stop are black-robed rulers overriding citizens’ choices.”

via How Conservatives Weaponized the First Amendment – The New York Times

ICYMI: Abigail Fisher deserves an ‘F’ for her race-baiting Supreme Court case aimed at boosting subpar white students – Salon.com

The latest court case around affirmative action:

Wednesday, the Supreme Court heard arguments in what is easily the most baffling case it’s going to hear this session, yet another attack on affirmative action policies at state universities, in this case the University of Texas at Austin. If ever there was a case that has no business in front of the high court, it is this one. The suit is a nuisance suit, it’s poorly argued, it’s disingenuous, it’s been heard before and, to make everything even more bizarre, the plaintiff’s claim to injury is demonstrably untrue. This is a case that should have been laughed out of court years ago, but instead, this is the second time — second time! — it’s being presented in front of the Supreme Court.

 At stake is the claim made by Abigail Fisher, now 25, who hails from a wealthy suburb of Houston called Sugar Land, that she was deprived of her rightful admission at UT Austin because, in her view, some person of color who didn’t deserve it stole it from her.
Throughout her now seven-year campaign to make the school pay for not letting her in, Fisher has never been able to produce any evidence that the school tossed her application to make room for a less qualified minority applicant. That’s because, as UT Austin has maintained throughout this ordeal, Fisher was never getting in to their school. Fisher’s GPA and SAT scores weren’t high enough, and she didn’t have enough external accomplishments to convince the school to give her a shot otherwise. As Pro Publica explained at the time:

It’s true that the university, for whatever reason, offered provisional admission to some students with lower test scores and grades than Fisher. Five of those students were black or Latino. Forty-two were white.

Neither Fisher nor Blum mentioned those 42 applicants in interviews. Nor did they acknowledge the 168 black and Latino students with grades as good as or better than Fisher’s who were also denied entry into the university that year.

Fisher’s case only makes sense if you assume that people of color are inherently less worthy than white people. How else do you justify an argument that assumes that every white person should have been given a shot before minority students do?

This assumption of the inherent superiority of white people, even above those people of color who have more appealing applications, was reflected in Antonin Scalia’s remarks during today’s case.

Instead of telling her where to shove it, the Supreme Court sent Fisher’s case back to the appeals court. Now she and her lawyers are back again. This time, they’ve tweaked their argument a bit, trying to argue that diversity itself is an illegitimate goal for schools and, to add a bit of extra nastiness sauce to it, they’re claiming that diversity is bad for students of color.

In other words, Fisher and her lawyers are concern-trolling the Supreme Court.

Most of UT Austin’s admissions are on the basis of high school class standing — about 80 percent of its class in the year that Fisher applied. But the other 20 percent are determined in a holistic fashion, by looking at grades, extracurricular activities, test scores, writing samples, the usual stuff. Because of the school’s commitment to diversity, race and class background is also taken into consideration. Someone who shows potential but faced some obstacles gets a closer look than someone who hasn’t had similar obstacles.

When you read about this case, it quickly becomes self-evident why the admissions committee didn’t think Fisher had some hidden potential that wasn’t reflected in her grades. Fisher, however, has decided her unparalleled genius is going unnoticed because of the notorious racism against white people. But since that argument hasn’t gotten her very far, her lawyer, Edward Blum, is now trying a different tactic to argue that schools should admit mediocre white people over talented students of color: His claim is that  giving students of color an opportunity somehow hurts them.

Source: Abigail Fisher deserves an ‘F’ for her race-baiting Supreme Court case aimed at boosting subpar white students – Salon.com

In a Case of Religious Dress, US Justices Explore the Obligations of Employers – NYTimes.com

US Supreme Court hearings on religious accommodation (the Abercrombie & Fitch case):

Justice Samuel A. Alito Jr. on Wednesday warned that “this is going to sound like a joke,” and then posed an unusual question about four hypothetical job applicants. If a Sikh man wears a turban, a Hasidic man wears a hat, a Muslim woman wears a hijab and a Catholic nun wears a habit, must employers recognize that their garb connotes faith — or should they assume, Justice Alito asked, that it is “a fashion statement”?

The question arose in a vigorous Supreme Court argument that explored religious stereotypes, employment discrimination and the symbolism of the Muslim head scarf known as the hijab, all arising from a 2008 encounter at Woodland Hills Mall in Tulsa, Okla.

Samantha Elauf, then 17, sought a job in a children’s clothing store owned by Abercrombie & Fitch. She wore a black head scarf but did not say why.

The company declined to hire her, saying her scarf clashed with the company’s dress code, which called for a “classic East Coast collegiate style.” The desired look, Justice Alito said, was that of “the mythical preppy.”

…In response to Justice Alito’s question about the four hypothetical applicants, Shay Dvoretzky, a lawyer for the company, conceded that some kinds of religious dress presented harder questions, but he said the court should require applicants to raise the issue of religious accommodations.

Several justices suggested that an employer should simply describe its dress code and ask if it posed a problem. That would shift the burden to the applicant, they said. If the applicant then raised a religious objection, the employer would be required to offer an accommodation so long as it did not place an undue burden on the business.

That approach, Mr. Dvoretzky said, would itself require stereotyping.

But Justice Elena Kagan said that the approach was the lesser of two evils. On the one hand, it could require an “awkward conversation,” she said. “But the alternative to that rule is a rule where Abercrombie just gets to say, ‘We’re going to stereotype people and prevent them from getting jobs.’ ”

Justice Ruth Bader Ginsburg added that Ms. Elauf had not even known that her hijab was a problem.

“How could she ask for something when she didn’t know the employer had such a rule?” Justice Ginsburg said.

In a Case of Religious Dress, Justices Explore the Obligations of Employers – NYTimes.com.

Judging The Beards Of Believers – SCOTUS decision

The latest US SC ruling on religious freedom, this time with respect to beards. Similar to Canadian approach. Commentary below by Carrie Severino:

[This ruling] emphasizes that it is the religiously-motivated view of an action, not the unbelieving bystander’s judgment of its importance, that determines whether a burden is substantial. That is particularly important where, as here, courts are dealing with a minority or unpopular religion.

The Court also clarified some key points respecting substantial burdens. First, it noted that permission to engage in many other aspects of religions exercise – here, praying daily, keeping a prayer rug, corresponding with religious advisors, keeping a halal diet, and observing religious holidays – does not cancel out the effect of denying Holt the ability to carry out his simultaneous religious obligation to grow a beard. Additionally, the Court corrected a misunderstanding below that only “compelled” religious practices could be substantially burdened or that disagreements within the Muslim community about the necessity of growing a beard meant curtailing that ability was not a substantial burden. After all, courts have no business making a judgment call about the fundamentally theological questions of how much religious practice is “enough” or which view of a certain religion is correct.

Judging The Beards Of Believers « The Dish.