Liberals Sour on the First Amendment

When in 1977 the American Civil Liberties Union defended the right of Nazis to march through a Jewish neighborhood in Skokie, Ill., the organization was lionized for its willingness to say that the principle of free speech was more important than the sensibilities of those who were offended by that demonstration. The ACLU took a similar position on campaign-finance laws, which it rightly saw as an attempt to silence the exact kind of expression — political speech — that the Founders were most anxious to protect.

No longer. An internal memo has revealed that the ACLU will stop standing up for the rights of those with whom its liberal donors disagree. And the group isn’t alone in changing its mind: After the Supreme Court’s conservative majority defended the rights of anti-abortion activists and civil-service workers in two separate cases, Justice Elena Kagan alleged that conservatives “were weaponizing the First Amendment.” The New York Times used the comment as the basis for a front-page story in its Sunday edition.

In recent years, the Court has defended the First Amendment in a variety of contexts, from campaign finance to religious expression. But, as the Times noted, while the libertarian position on speech used to be the liberal position, the willingness of conservatives to invoke the First Amendment on behalf of positions and policies that liberals dislike has soured the latter on the idea of free-speech absolutism. They see the individual rights they once zealously defended — when invoked by street protesters or pornographers — as harmful when invoked by corporations or devout religious believers. According to legal scholar Catherine McKinnon, the First Amendment has become the “sword” by which “racists” and “corporations buying elections” amplify and reinforce injustice.

Of course, while this is a departure for the ACLU, there’s nothing new about the Left in general opposing the concepts of tolerance and free speech. In his 1965 essay “Repressive Tolerance,” leftist philosopher Herbert Marcuse argued for stripping conservatives of the right to free speech and assembly. For a Marxist like Marcuse, tolerance should be extended only to those who oppose the mechanisms of liberal capitalist societies.

Marcuse’s ideas were highly influential among the New Left radicals of the 1960s, who would shut down universities and seek to silence their opponents in the name of their good intentions. His was an essentially totalitarian ideology in which left-wing ideologues who claim to speak for objective truth can punish and repress those considered unenlightened or sinful.