by Patrick Gaffney
“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.
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.”
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.
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.
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.
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.1
1 This blog was taken from the writings of Adam Liptak, ie, “How Conservatives Weaponized the First Amendment”. The New York Times. June 30th 2018. Retrieved from https://www.nytimes.com/2018/06/30/us/politics/first-amendment-conservatives-supreme-court.html?rref=collection%2Fbyline%2Fadam-liptak&action=click&contentCollection=undefined®ion=stream&module=stream_unit&version=latest&contentPlacement=5&pgtype=collection
