(Cass R. Sunstein - Bloomberg) - With respect to free speech, people seem increasingly drawn to a simple narrative
. Those on the left used to like freedom of speech — but now, not so much. Those on the right used not to like free speech — but now they’re all in.
The narrative is mostly wrong. Actually, it’s a mess. To see why, we need to look at the arc of history.
In American constitutional law, many of the defining free-speech battles were fought in the 1950s, 1960s and early 1970s. They tended to involve political dissenters — civil-rights advocates, opponents of the Vietnam War, socialists and communists.
In the three defining battles, those on the left argued for broad protection of political speech.
First, they argued that unless the government could show a “clear and present danger,” dissenters should be allowed to say what they liked. The specter of McCarthyism loomed large.
In 1969, the Supreme Court embraced that argument in Brandenburg v. Ohio. The case involved the Ku Klux Klan, but everyone knew that the principle would protect dissenters of all stripes.
The second defining battle of the period involved the use of libel law. Free-speech advocates, mostly on the left, argued that dissenters should have a robust right to criticize public officials, even if the criticisms turned out to include false statements of fact. In 1964, the Supreme Court accepted that argument in New York Times v. Sullivan.
The third defining battle involved “prior restraints” on speech — meaning the use of injunctions and licensing schemes to forbid speech. Free-speech advocates, again mostly on the left, argued that prior restraints were almost always unacceptable, even when the government claimed that national security was at risk. In the Pentagon Papers case, decided in 1971, the Supreme Court accepted that argument.
These three decisions, now broadly accepted by all sides, help to define the left’s longstanding position on freedom of speech. Above all, they focused on protection of public debate — on allowing dissenters of all kinds to say what they liked.
Pointing to the risk of genuine harm, and the need for some kind of balance, those on the right frequently disagreed. They made reasonable arguments that speech could prove dangerous even if harm was not imminent; that libelous speech could do real damage; that in the Pentagon Papers case national security was at risk.
Turn in this light to the great free-speech battles of the last two decades. Many of them have involved two issues: campaign-finance restrictions and commercial speech.
Reasonable people disagree about whether restrictions on political spending violate the free-speech principle. But those on the left aren’t hypocritical when they register their disagreement with the 2010 Citizens United decision, which protects the right of corporations to make unlimited independent expenditures on campaigns.
Liberals have long insisted that corporate expenditures, and vast sums of money in elections more broadly, turn economic inequality into political inequality — in flagrant violation of democratic ideals. In making that argument, they haven’t changed their minds or retreated from their commitments.
Until 1976, when the Supreme Court protected advertising of prescription drug prices in the Virginia State Board of Pharmacy case, it had never held that the First Amendment protects commercial advertising. Business organizations seized on that decision to argue that commercial speech deserves the same protection as political speech — and also to attack regulatory restrictions of various sorts, such as the requirement, from the Securities and Exchange Commission, that companies must disclose their use of “conflict minerals” (minerals used to finance mass atrocities).
When Justice Elena Kagan recently complained that the court’s majority is now “weaponizing the First Amendment,” she meant to object to a novel use of the free-speech principle to challenge an assortment of rules designed to protect consumers, employees and others.
Consider, for example, disclosure requirements for mortgages and credit cards; hazard warnings for workers, and nutrition labeling for food. As constitutional law is now developing, all of these rules are vulnerable.
Maybe that’s fine. Maybe they should be seriously questioned on constitutional grounds. But it’s wrong to suggest that those on the left have shifted in some way, or that they have lost their enthusiasm for freedom of speech. For decades, their conception of free speech has been focused on political speech and protection of political dissenters.
To be sure, some people are genuine free-speech libertarians; they embrace the defining decisions of the earlier era, and they would also like to protect corporate expenditures and commercial speech. And most unfortunately, some people on the left, especially on college campuses, seem willing to give up on freedom of speech when they are offended by what people have to say.
But the broader point is that the widespread narrative is all wrong. Neither the left nor the right has really shifted. Current free-speech battles don’t look even a little bit like those of the 1950s and 1960s.
It’s not hypocrisy, and it’s not even surprising, if those on the left, long focused on the protection of political speech and dissent, are not so excited about protecting commercial advertising, or about striking down disclosure requirements from the Securities and Exchange Commission.