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September 25th, 2018

Insight

Free Speech for the Goose

Laura Hollis

By Laura Hollis

Published July 4,2018

 Free Speech for the Goose

The New York Times, borrowing Supreme Court Justice Elena Kagan's language from her dissent in last week's Janus v. AFSCME case, purported in a June 30 article to explain "how conservatives (have) weaponized the First Amendment."

The plaintiff in Janus successfully argued that he should not be forced to pay public sector union dues that support political causes he opposes. And the Janus decision was released the day after National Institute of Family and Life Advocates v. Becerra. In Becerra, plaintiffs were pro-life pregnancy centers opposing California's Reproductive FACT Act, a statute which forced them to promote and advertise for abortion services. Both plaintiffs won their cases on First Amendment free speech grounds. (And three weeks prior, Masterpiece Cakeshop owner Jack Phillips won his suit challenging a Colorado Civil Rights Commission decision sanctioning him for refusing to create a wedding cake for a gay couple. Phillips, too, won on First Amendment grounds.)

As Times author Adam Liptak notes, passionate defense of First Amendment rights was once de rigueur for self-proclaimed leftists. But now that it's conservatives who are asserting their rights to free speech, the left is sounding the alarm.

Liptak writes, "(L)iberals, who once championed expansive First Amendment rights are now uneasy about them." Immediately thereafter, he quotes renowned First Amendment litigator Floyd Abrams, who says, "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."

This brief passage obscures an important distinction between traditional liberalism and its more contemporary cousin, progressivism. Historically, liberalism has defended principles, and — subject to very limited exceptions — the universal application of them. Progressivism, by contrast, exalts not universal principles, but specific outcomes (which fluctuate wildly and change when the wind blows). In the progressive worldview, principles are malleable, and useful only to the extent that they achieve whatever the outcome du jour happens to be.

The United States Constitution — and the principles enshrined therein — is no exception.

For example, after tragedies like mass shootings, there are routinely calls for gun control. But now we are hearing arguments that it is time to repeal the Second Amendment. The hue and cry following the Masterpiece Cakeshop, Becerra and Janus cases sounds suspiciously like the first salvos in an attack on the First Amendment.

Here's a poorly kept secret that the recent Supreme Court cases reveal about progressive objectives: They rarely win in a free and flourishing marketplace of ideas. As a result, progressive ideologues have resorted to legislation and lawsuits intended to stifle speech they don't like and compel that which they do.

Alas, the left is waking up to the reality that all Americans have free speech rights — not just Vietnam protesters, flag burners and abortion rights activists. Surprise! The constitutional protection that is sauce for the progressive goose is also sauce for the conservative gander.

For all their posturing about the fear of fascism under the Trump administration, it is the so-called progressive left that makes known its loathing for the constitutional protections that get in the way of whatever utopic vision they're fever-dreaming about today. And it is they, not the Christian right, who have the zeal of the converted on their quest to perfect America by dismantling the constitutional protections for anyone who gets in their way.

It is not hysteria to warn of the need to aggressively protect our liberties. Other western democracies have begun to severely curtail free speech in the name of some other progressive "good." Author and humorist Mark Steyn spent nearly two years fending off allegations of human rights violations associated with a sarcastic piece he published in Canada about the decline of western civilization, titled, "The future belongs to Islam." And just last week, a court in England upheld a city law banning prayer vigils outside of abortion clinics. The justice who handed down the court's decision acknowledged that the city law violated the rights of those who sought to peacefully pray in protest, but insisted that such a law was "a necessary step in a democratic society." Democracy for me, but not for thee, that is.

Unlike progressives, traditional liberals understood that society is stronger when everyone — even those whose ideas we find distasteful — plays by the same rules.

On this Independence Day, we would do well to treasure the gifts our forefathers gave us, and not trade our birthright as free Americans for the mess of pottage that progressives would force us to eat.

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Laura Hirschfeld Hollis is on the faculty at the University of Notre Dame, where she teaches courses in business law and entrepreneurship. She has received numerous awards for her teaching, research, community service and contributions to entrepreneurship education.

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