Has the First Amendment Become a ‘Conservative’ Legal Cause?

The U.S. Supreme Court is hearing a series of cases this term
that raise fundamental questions about the scope of the First
Amendment, including in such areas as
mandatory union dues for public-sector employees,
aggregate campaign spending limits during election season, and
the health care law’s so-called
“contractive mandate.”

At the Los Angeles Times, Supreme Court correspondent
David G. Savage argues that the common thread uniting these
disparate cases is the presence of conservatives activists seeking
to vindicate their rights against the government. “For decades,
liberals wielded the 1st Amendment to protect antiwar activists,
civil rights protestors and government whistle-blowers,”
Savage writes. “These days, however, the Constitution’s
protection for free speech and religious liberty has become the
weapon of choice for conservatives.”

In a broad sense, that sounds right. Most people tend to view
antiwar speech as a liberal cause and view campaign finance speech
as a conservative cause. But the details become more complicated
when you take a closer look. Citizens
United v. Federal Election Commission (2010), for example,
the most famous—some might say most infamous—ruling in favor of
broad First Amendment protection for political speech against
campaign finance regulation, was also endorsed by the American
Civil Liberties Union, which filed an amicus brief on
behalf of the conservative non-profit corporation Citizens United.
Does that stamp of approval by the ACLU make Citizens
United a liberal case?

The same analysis holds true for the issue of unpopular speech
during wartime. Let’s reach a little further back in history and
consider the case of Eugene Victor Debs, radical labor activist and
perennial Socialist Party candidate for the presidency. In 1918
Debs was arrested under Woodrow Wilson’s Espionage Act on charges
of interfering with U.S. participation in World War I after he gave
an antiwar speech. Debs ultimately spent three years in federal
prison for committing that “crime.”

In 1919 the Supreme Court issued a decision on his case. Because
he spoke out against the war, the Court argued, Debs had
effectively sought “to obstruct the recruiting and enlistment
service of the United States.” His conviction was upheld. The
opinion was written by Justice Oliver Wendell Holmes, a hero
to the Progressive Movement who is still admired today by many
prominent liberal figures, including Justice Elena Kagan, who cited
Holmes as a judicial
role model during her 2010 Supreme Court confirmation
hearings.

By contrast, one of the loudest voices raised on Debs’ behalf
was that of the journalist and critic H.L. Mencken, who is
nobody’s idea of a left-winger. Indeed, Mencken despised Debs’
socialist views, yet knew perfectly well Debs was being railroaded
by the government and deserved to be set free.

My point is that First Amendment cases often fail to conform to
a binary left-right divide, and that’s because both sides of the
political spectrum are willing to accept the use of government
power to silence certain voices at certain times.