Legal Affairs – How Liberals Got Tired Of the Freedom Of Speech

National Journal

At the core of American freedom, wrote the late, great Justice William J. Brennan Jr. in 1964 in New York Times Co. vs. Sullivan, is "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." Attacks on private individuals are protected speech, too, as Brennan and his colleagues held in other decisions.

In those days, threats to the freedoms of speech and association came mainly from the Right, and the First Amendment’s champions were crusading liberals such as Brennan. Not so now. Uninhibited free speech has gone out of fashion in liberal circles-in the Clinton Administration, in Congress, in state and local governments, at the most prestigious universities, and at the best cocktail parties. And the national media have become selective and self-serving in defending "their precious First Amendment," in the words of one critic. While liberal free speech advocates are still active in the American Civil Liberties Union and elsewhere, conservatives such as Justices Antonin Scalia and Clarence Thomas and Sen. Mitch McConnell, R-Ky., are now among the most consistent champions of free speech.

The cases in the news that prompt these thoughts include an effort (ultimately unsuccessful) by the city of Denver and the Justice Department to pressure an Italian-American group to purge any mention of Christopher Columbus from the traditional Columbus Day parade; the Supreme Court’s June 28 decision restricting anti-abortion protesters’ rights; and a Michigan woman’s 45-day jail sentence for uttering an ugly slur ("damned spics") to her mother as they passed a Mexican-American family on their way out of a crowded restaurant.

Understandably repelled by such slurs-and by other statements that they find offensive-many liberals have yielded to the itch to censor:

• The Italian-Americans in Denver were ultimately allowed to honor Columbus during their Oct. 7 parade, amidst nonviolent protests by American Indian and Hispanic activists who see the explorer as a genocidal slave trader. But earlier, in response to threats of violent disruptions by the Indian and Hispanic activists, the city and the Justice Department’s Community Relations Service (acting as "mediators") had pressured the Italian-Americans into signing a remarkable agreement. It barred any mention or depictions of Columbus at any point in the parade, forbade wreath-laying, and specified that violations would lead to revocation of the parade permit. The agreement fell apart because of anger in the Italian-American community. And the city-perhaps fearing a lawsuit-let the parade proceed, Columbus and all.

• A federal appeals court held on Sept. 27 that federal Housing and Urban Development officials in California had flagrantly violated the First Amendment by investigating and threatening with heavy fines three law-abiding Berkeley residents who had spoken out against a proposed public housing project in their neighborhood and had filed a lawsuit to stop it. The charge was to be housing discrimination. Reeling from bad publicity, HUD officials in Washington eventually rejected the proposed prosecution. But there was evidence of a broader pattern of efforts early in the Clinton Administration to chill speech by opponents of HUD projects.

• The Supreme Court’s abortion- protest ruling upheld a Colorado law barring peaceful protesters from coming within eight feet of women entering or leaving abortion clinics. The law thereby made it impossible to hand the women unwanted leaflets. "Contradict[ing] more than a half-century of First Amendment principles," in the words of dissenting Justice Anthony M. Kennedy, the majority in the case (Hill vs. Colorado) fashioned a double standard to give less First Amendment protection to anti-abortion protesters than to labor pickets and others. The four more- liberal justices were all in the 6-3 majority. The Kennedy dissent was notable both for its passion and for the fact that he has supported abortion rights in the early months of pregnancy. But the media barely noticed the case, which First Amendment champions see as a serious setback.

• Efforts by universities to squelch expression of politically incorrect thoughts by faculty and students seem as pervasive and coercive as ever. At Columbia Law School, for example, controversy is still raging over a 1999 episode that started when Professor George P. Fletcher, a prominent criminal law expert, gave a final exam that offended many women in the class. The exam featured a bizarre hypothetical in which an "anti-fertility cultist" attacks three pregnant women in order to kill their fetuses. One of the women, who had been trying unsuccessfully to schedule an abortion, later "tells the doctors that she wants to write a thank-you note to her assailant." This raised the question of whether she had legally consented to the assault. Amid complaints from students and some professors, Dean David Leebron warned Fletcher in an ominous letter that his exam had exposed the school to "a plausible suggestion of liability and unlawfulness" for sexual harassment.

The student protests were justified. But when the dean of a top law school can suggest that an exam question-any exam question-might be a violation of federal law, the First Amendment is in trouble. And free speech risks losing not only its legal protection, but a critical constituency when "colleges and universities are teaching the values of censorship, self-censorship, and self-righteous abuse of power," as Alan Charles Kors and Harvey A. Silverglate have written. Their absorbing and alarming 1998 book, The Shadow University: The Betrayal of Liberty on America’s Campuses, provides examples by the dozen.

Taken individually, such cases of campus censorship may seem of little importance, and far from the core of the First Amendment. Collectively, however, they have fostered an atmosphere in which students and professors who think that racial preferences are wrong, or that liberal feminists are wallowing in self-imposed victimhood, dare not say what they believe lest they be charged with racial or sexual "harassment."

Meanwhile, on the national political scene, we have a silly, media-enforced taboo against another variety of free speech: "negative campaigning" and "personal attacks." When George W. Bush makes even a veiled allusion to Al Gore’s habitual lying, the pack jumps on him. And when Gore is asked at the outset of the first debate to explain his previous (and perfectly plausible) assertion that Bush lacks the experience to be President, Gore steers around the "personal attack" zone by telling another lie: "I have actually not questioned Gov. Bush’s experience."

But negative campaigning will be vital to the health of democracy until such time as all of our political candidates are entirely honest, experienced, and beyond reproach. How can you correct a lie without exposing its falsity? How can you convince voters that you would do a better job without telling them that your opponent would do a worse one?

As the campaign chugs along, campaign finance reformers continue to press their well-intentioned but probably counterproductive crusade to drive money out of politics. Currently in vogue are proposed laws that would severely inhibit the ability of the political parties and of politically active people and groups to raise enough money to buy television and radio ads. The New York Senate race suggests what post-reform campaigns might look like. Hillary Rodham Clinton and Rick A. Lazio have both raised and spent lots of money, but-to the delight of the media-the candidates and their parties have agreed to stop buying television and radio ads with large "soft-money" contributions and have asked allied interest groups to do the same.

The reformers’ gain is the voters’ loss, as explained in a letter to The New York Times by state Assemblywoman Deborah J. Glick: "Many voters are reluctant to trust the candidates’ own campaign ads, which they perceive as self-serving spin. The advocacy groups voters look to for truth about issues-groups that work tirelessly on specific subjects, like the Sierra Club and the National Abortion and Reproductive Rights Action League-are the very organizations banned from advertising."

If campaign finance reformers have their way, federal law will ban soft money and constrict political fund raising and spending by independent groups. The reformers’ primary goal is to curb the influence of money in politics. But as the same Justice Brennan wrote in another seminal decision, Buckley vs. Valeo, in 1976: "The concept that government may restrict the speech of some elements of our society in order to enhance the relative voices of others is wholly foreign to the First Amendment." And as another great liberal, Justice Louis D. Brandeis, wrote in 1928: "The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding."