Who's 'Weaponizing the First Amendment'—the Left or the Right?
|Topics:||Free Speech & Election Law|
|Sponsors:||Corporations, Securities & Antitrust Practice Group|
On June 28th, after previously splitting 4-4 on the case, the Supreme Court declined a Petition to Rehear Friedrichs v. California Teachers Association, which involved a First Amendment challenge to laws requiring non-union public employees to pay agency fees to unions. The case is over and for now, agency fees remain in place in 25 states. Like many other First Amendment cases raised in the past few years, this case was – and still is – derided in the media and by its legal opponents as a thinly veiled conservative attempt to “weaponize” the First Amendment as a vehicle to advance conservative policies.
Truth be told, there is a trend to look at First Amendment issues through a partisan lens – but conservatives aren’t behind it.
On the contrary, it is many influential liberals in the legal community who are letting politics trump principle when it comes to the First Amendment. For instance, Linda Greenhouse of the New York Times said the claim in Friedrichs was brought by “anti-union forces” and is proof that “judicial conservatives have grown ever bolder in re-purposing existing doctrine to the service of their agenda.”
However, there is something important missing from Greenhouse’s analysis: the plaintiffs. Rebecca Friedrichs and her eight other co-plaintiffs are real people with real grievances against their union. But to read the mainstream accounts of their case you might not even know they exist. Why? Because Rebecca Friedrichs and her co-plaintiffs want to use the First Amendment to express the wrong opinions.
A recent panel for the progressive American Constitution Society on “The Weaponized First Amendment” illustrated this well. Prof. Martin Redish of Northwestern University School of Law and others discussed the Friedrichs case at length without once mentioning the existence of the actual plaintiffs and their concerns. Rather, Prof. Redish discussed the case in the abstract and proclaimed that just “Because you don't like the idea [of unions] doesn't mean you can you can't be forced to associate with the activity… You may hate the idea of unions… That doesn’t mean you can’t be forced to do it.”
In plain English, the logical extension of this belief is to conclude that people like Rebecca Friedrichs do not have their First Amendment rights violated when the government forces them to do something because they are still free to think that something is wrong. This argument works when applied to taxes, which everyone must pay regardless of whether they agree with them or not, but now it is the favored go-to argument of the left when confronted with First Amendment claims desiring to express the wrong kind of speech.
Taxes, Justice Oliver Wendell Holmes explained, “are what we pay for civilized society” – specifically the society that we all belong to. If everyone who disagreed with taxes stopped paying them, the nation would cease to exist. But Rebecca Friedrichs isn’t challenging her union’s existence. She just doesn’t want to fund its political speech. She wants the decision to support a union taken away from the legislature and placed in the hands of individual teachers on the front line. But more often than not, to take the decision about supporting a union away from the legislature is also to take it away from the Democratic Party – and this is where liberals have let politics cloud their First Amendment reasoning.
William F. Buckley was perhaps more prescient than he imagined when he joked, “Liberals claim to want to give a hearing to other views, but then are shocked and offended to discover that there are other views.” And indeed, when confronted with the reality that a teacher like Rebecca Friedrichs does not want to support her union and its aggressive political agenda, liberals act as though such dissenters do not even exist. The resulting coercion is supposedly reconciled with liberal principles by pointing out that, while being coerced into action, dissenters like Ms. Friedrichs are still free to think the act is wrong.
In fairness, there are times when the First Amendment allows restrictions on speech, but that is not – and should not be – the default. Liberals today reflexively argue that speech can be limited to thought when the speech at issue is inconvenient for liberal politics. Dissenting students and professors on campus are free to think what they please, but strict speech codes limit the expression of those thoughts. The Little Sisters of the Poor were told they are free to think whatever their religion teaches about contraceptives, but that their expression of belief will be constrained and controlled. Conservative think tanks are free to think climate change is not man-made, but criminalized for expressing those thoughts. When freedom to speak is inconvenient it is reduced to freedom to think. When the exercise of religion is inconvenient it is reduced to freedom of worship.
As a matter of legal history, the progressive interpretation of the First Amendment is simply wrong. The First Amendment does not purport to protect thoughts, which are already beyond the reach of any statute. It does, however, protect the expression of thoughts. The Supreme Court has held time and again that unless someone is attempting to incite imminent lawless action, the expression of ideas is protected by the First Amendment – no matter how unpopular those ideas are and no matter how provocative the means of expression. For instance, in Texas v. Johnson the Supreme Court protected the right of an anti-war protestor to burn an American flag outside the Republican National Convention. Justice and liberal icon William Brennan explained why the First Amendment protects the ability to express thoughts and words in the majority opinion:
The First Amendment literally forbids the abridgment only of ‘speech,’ but we have long recognized that its protection does not end at the spoken or written word.
The takeaway was clear: The First Amendment protects even the loudest and most obnoxious expressions of even the most controversial ideas.
On other occasions, the Supreme Court has upheld the right of students to express opposition to the Vietnam War by wearing black armbands to class. It further protected the right of African Americans to express their protest of segregation by staging sit-ins. And it protected the right of the Amish to express their religion through the homeschooling of their children.
If the First Amendment isn’t limited to mere words, it can’t be even further limited to mere thought. Limiting one of our founding values in such a partisan way would be wrong in terms of legal history and wrong in terms of principle. The First Amendment protects everyone’s rights – and that includes the right to express a different view – whether liberal, conservative, or something else entirely.
For more on this issue, check out some opposing views from Emily Bazelon and Elias Isquith.
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Brian Miller is an attorney at the Center for Individual Rights, the nonprofit public interest law firm that represented the Friedrichs plaintiffs.