A recent New York Times story claiming conservatives have “weaponized” free speech put the spotlight on a law review article by Georgetown law professor Louis Michael Seidman titled, “Can Free Speech Be Progressive?” Seidman’s answer to his question is “no.” He is probably not wrong, even if some of his arguments are.
At the outset, Seidman devotes a section of his article to his version of history, in which courts were generally hostile to progressive speech, then erratic or belated in protecting such speech, and then briefly favorable under the Warren Court before taking a “sharp right turn.” His piece is more a political cost-analysis of free speech from a progressive perspective than it is a legal argument.
Seidman’s history is selective and inaccurate. For example, he writes that it was progressive for the Supreme Court to protect school children (who were Jehovah’s Witnesses) from being forced to salute the American flag or recite the Pledge of Allegiance. A few pages later, he asserts that cases aiding groups like the Jehovah’s Witnesses “were in no sense progressive.”
Seidman also faults the Supreme Court for upholding Espionage Act convictions during World War I until after the war fever subsided. He does not consider that one possible reason this happened was that the dissenters were persecuted by progressives like Woodrow Wilson and A. Mitchell Palmer. Perhaps he did not want to remind readers what progressives against free speech look like.
The simpler, more accurate way to describe American free speech jurisprudence is that it has become more libertarian over time. This trend was sometimes interrupted by political panics and sometimes accelerated by them. America’s involvement in wars – including the Cold War – generally positioned us as the beacon and guarantor of liberty against totalitarianism, and undoubtedly created political pressure to live up to our ideals in court.
This trend is what bothers Seidman. He writes that fundamentally, “free speech law is much more conducive to constitutionally required libertarianism” and “entrenches a social view at war with key progressive objectives.” Progressives are delighted when libertarianism overturns precedent to find (for example) a right to same-sex marriage. So it makes sense that Seidman makes the slippery claim that the Court has taken a “sharp right turn” on free speech recently, instead of continuing a libertarian one.
History aside, Seidman has three objections to the free speech right, observing in a footnote that many of his arguments “might be extended to attack liberal constitutional rights more generally.”
Seidman first objects that free speech is tied to the ownership of places and things – and that such ownership is largely private, corporate, and unequal. Unsurprisingly, he attacks the Court’s decision in Citizens United v. Federal Election Commission, though he concedes it was inevitable because “no one thinks that the government can prohibit The Washington Post from endorsing a Hillary Clinton for president or Penguin Books from publishing a book during election season criticizing Donald Trump.”
Nevertheless, Seidman complains that “media companies are disproportionately owned by very wealthy people,” as though The Washington Post and Penguin Books do not lean progressive, along with (to varying degrees) The New York Times, broadcast television, CNN, MSNBC, and Hollywood generally. Even the Rupert Murdoch-owned Wall Street Journal is largely staffed by journalists who complain about the paper’s editorial line.
Moreover, Seidman’s argument is weakened by the internet democratizing publishing. Thus, Seidman pivots to argue that the real threat today is not government suppression of speech, but “speech clutter,” trolling, speech siloing, and “fake news.” He complains about the cacophony on social media platforms. Yet Twitter and Facebook are controlled and staffed by progressives. Seidman can argue against free speech, but his view of how media companies function has little connection to reality.
Seidman’s second objection is that the First Amendment “assumes that speech is ‘free’ when government ‘makes no laws,’ and that it is laws that have the potential to ‘abridge’ the freedom of speech.” In contrast, progressives believe “the government has a duty to act affirmatively to counterbalance private power and correct for the unfairness of market allocations,” including in the marketplace of ideas.
This objection is technically correct. The roots of progressivism may be found in the Germany of Bismarck and Hegel. Progressivism is foreign to the classically liberal American philosophy embodied in the Constitution and Bill of Rights, which views the natural rights of humanity as endangered by government. Perhaps Seidman can convince the Democratic Party to stop pretending otherwise. More honest progressives might campaign on the idea that people’s consciences, philosophies, and religious convictions should be as easy to regulate as the sale of toothpaste.
Seidman’s final objection is that free speech law is concerned with government neutrality regarding content, viewpoint, and speaker. He observes that under classical liberalism, free speech is how political disputes get resolved; thus, “the Constitution is supposed to provide the mechanism by which people with opposing views can settle their disagreements through law rather than power.” In contrast, Seidman asserts progressivism cannot be neutral, because it has already decided the answers.
“It is a fighting faith committed to a particular and controversial outcome,” he writes. ” It follows that a progressive First Amendment necessarily violates the ground level premises of American constitutionalism.”
Indeed. Progressivism, at its core, is not interested in resolving our disputes through debate or law, but in coercion through raw power. He calls progressivism a faith, which puts him in agreement with critics who see it as a religion, not politics.
Seidman’s arguments are merely a further iteration of arguments which have been around for decades. Those who believe the state is better than the market at allocating resources will have the same attitude toward the marketplace of ideas. A movement that views America and its Enlightenment-based ideals as fundamentally illegitimate (and racist) will have little use for John Stuart Mill, often considered the progenitor of the marketplace metaphor. That such arguments are not new does not make them less revolutionary – or the four Supreme Court Justices trying to buck the libertarian trend on free speech less disturbing.