NY Times, Winner Of A Key 1st Amendment Case, Suddenly Seems Upset That 1st Amendment Protects Conservatives Too

from the what-the-actual... dept

Over the weekend, the NY Times' Adam Liptak, who usually does quite an excellent job covering the Supreme Court for the NY Times, published an absolutely bizarre long feature piece, claiming that conservatives had "weaponized" free speech, and that liberals who had been the leading champions of free speech for decades were now sometimes regretting their positions on free speech, because conservatives were now using it also. The whole piece is mind-bogglingly stupid for a whole variety of reasons, though Rob Beschizza probably put it best by noting:

This NYTimes op ed about "weaponized" free speech somehow manages to crudely misrepresent every opinion on free speech held by every faction in play in American politics. It is a diamond of failure glinting horribly from every perspective.https://t.co/Z3qWWtHOBg — Rob Beschizza (@Beschizza) July 1, 2018

If you can't read that, Rob notes:

This NYTimes op ed about "weaponized" free speech somehow manages to crudely misrepresent every opinion on free speech held by every faction in play in American politics. It is a diamond of failure glinting horribly from every perspective

That's about right. I'd also argue that it's a masterclass in confirmation bias and cherry-picking. It starts with the thesis of conservatives weaponizing free speech, and then tries to build a structure around that, ignoring any and all evidence to the contrary. I should also note that just about any argument that tries to lump a giant group of the population together as "conservatives" or "liberals" or "right wing" or "left wing" is generally going to be nonsense and cherry picking, rather than anything useful. And this article is no exception.

The key -- incredibly stupid -- underlying argument is that everything went downhill for "liberal" free speech when corporations started winning First Amendment cases. This is a really bad take -- and just to point out why, I'll point you to the New York Times v. Sullivan, one of the most important defamation cases ever decided by the courts, which used the First Amendment to make sure that the press had very strong protections in printing what they wanted without allowing angry litigants to take them down with defamation lawsuits. That case is only won by the NY Times -- the same publication that published this latest silly article -- because a corporation (the NY Times Company) is able to have First Amendment rights. Without corporations getting First Amendment rights, defamation cases would sink any publication doing serious reporting.

That this same NY Times is now publishing this tripe is a travesty and spits on that legacy.

Besides, if you're actually interested in the same issues about corporations using the First Amendment, a much better take on this topic was done just a couple months ago in an episode called How Corporations Got Rights. It takes a much more reasonable look at this issue and highlights why we shouldn't be so quick to complain about corporations having fundamental rights.

But Liptak's piece has none of the nuance of the On The Media segment, and instead hits you over the head again and again with anecdotes falsely arguing that free speech is now being "weaponized" against the most vulnerable, ignoring how frequently the First Amendment still is used every single day to protect the vulnerable. But that's ignored because it also protects people or ideas that the NY Times thinks "liberals" don't like:

“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.”

Basically, Liptak found some liberals who are now upset because they realize conservatives get their speech protected by the First Amendment too. The response to that should be "duh" or just (in true free speech fashion) plain mockery. Because, of course, the idea is that the First Amendment protects everyone's speech. That's the point. That some people on one side of the coin or the other are upset that it supports expression by those with opposing viewpoints really only highlights one thing: those people were never really First Amendment supporters. They were just supporters of having their own speech protected.

There may be reasonable questions to ask about the borderline between expression and action. Or if the current (extremely limited) list of exceptions to the First Amendment are appropriately bounded. But the idea that one side has "weaponized" free speech, or the idea that some people think that free speech is being used to protect ideas they don't like, is a silly concept and not one that deserves a serious think piece in the NY Times.

I mean, why give time to this nonsense without pointing out how silly it is:

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.”

Is there any evidence to back up the idea that it is "mainly" used as a weapon of the powerful? Because that would be interesting. Instead, there are just anecdotes. Anecdotes of assholes using the 1st Amendment to be assholes. But that's not actually new. Klansmen famously used the First Amendment to protect their right to march in Skokie decades ago.

Furthermore, notice how MacKinnon lumped "pornographers" in with misogynists, racists and Nazis above. Yet, there are lots of well known First Amendment cases involving pornography that I don't think anyone would have considered being "conservatives" or "the powerful" wielding the First Amendment. Rather it was the reverse. Larry Flynt winning his Supreme Court case against Jerry Falwell was not an example of a "conservative" win for free speech. Yet, why in this article is it now being lumped in as on that side of the ledger by claiming "pornography" is now conservative?

Again, Liptak is an excellent Supreme Court reporter, who does a much better job explaining the details and ins and outs of various cases than many other legal reporters. But this entire piece is garbage -- something I can say because I'm protected by the First Amendment. The NY Times has made a mockery of its own legacy as a First Amendment beacon in publishing such nonsense.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community. Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis. While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: adam liptak, conservatives, first amendment, free speech, liberals, supreme court, weaponizing free speech