Last week, the Supreme Court eloquently reaffirmed the continuing vitality of the First Amendment. In doing so, it confirmed again our commitment to freedom of speech and the free exchange of ideas as the critical engine of American liberty.
In its opinion, the Court wrote:
â€œThe First Amendment underwrites the freedom to experiment and to create in the realm of thought and speech.â€
â€œThe civic discourse belongs to the people, and the Government may not prescribe the means used to conduct it.â€
â€œThe First Amendment confirms the freedom to think for ourselves.â€
â€œIf the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens for simply engaging in political speech.â€
One might have thought such ideas quite uncontroversial.
But the Left is in full howl over this decision. The objectivity of the law is among its most cherished strategic myths. It has repeatedly hijacked the courts for the implementation of social objectives and for the accomplishment of purely political goals. When many protest the undemocratic judicial imposition of political change, leftists pompously suggest that the law’s impartiality requires the result. It is merely a ploy to shut down debate, of course, but the Left has always squinted toward authoritarianism. When the Court has the cheek to conclude, though, that the Constitution prohibits their autocratic political projects, it suddenly becomes a â€œpolitical bodyâ€ and the objectivity of the law somehow disappears from leftist rhetoric. It is, apparently, their contention that the Supreme Court is an objective arbiter of an absolutely determinable law only when its decisions agree with their political aims.
This latest avalanche of vituperation finally strips the mask from the Left’s pretension as freedom’s guardian. The truth is that leftists believe the First Amendment exists only to protect expression with which they agree. It is their private sanctuary; it exists to protect the expression of their ideas, but not yours. In their warped world view, the First Amendment only protects pornographers, sacrilegious artists, profane protesters and unhinged leftist ideologues, like the editorial board of the New York Times.
What was the controversial holding in Citizens United v. Federal Election Commission? Just this: corporations, like individuals, enjoy the right to freedom of speech; that Congress may not enact laws that prevent anyone â€“ including corporations â€“ from expressing political opinions.
The New York Times calls the holding â€œa blow to democracyâ€. Exquisitely and willfully unmindful of the hypocrisy that enables them to be serial litigants in favor of protecting the First Amendment rights of the corporation for which they work and, at the same time, to hysterically decry a decision that safeguards the same right for all other corporations, its editorialists asset that corporations do not enjoy the right to freedom of speech. Of course, the statute they so ostentatiously defend exempts their corporation from its prohibitions, so they cannot be expected to trouble themselves with mere intellectual integrity. Not that it has ever been in abundant supply at that particular institution, but, at some point, one would expect that embarrassment, if not shame, would begin to set in for its naked ideological partisanship.
If the New York Times and leftist ideologues from the President on down are right, though, there is, as the Court pointed out, no principled reason for arguing that the New York Times enjoys freedom of the press. The Times is, after all, a corporation and, until recently, a profit making one at that. Journalists seem to think the word â€œpressâ€ that appears in the First Amendment refers to some discrete, inchoate entity rather than as shorthand for â€œthe printed wordâ€. It does no such thing. It was never intended to describe an institution or class named â€œthe pressâ€, regardless of its form, since there was no such thing at the time. It was used, rather, to indicate that the right to freedom of expression extends to the written as well as the spoken word. Press corporations, then, have no greater right to freedom of expression than any other corporations.
But the New York Times corporation does not care. After all, it was exempted from the law the Court overturned so no one but it and other media corporations enjoyed the power to express political opinions. The intellectual greed this represents is as breathtaking as the Court’s retreat to liberty is refreshing.
The Left’s unprincipled attack on the Court’s decision is also oddly disconnected to the structure of First Amendment. As Justice Scalia put it in his concurrence, â€œThis section of the dissent purports to show that today’s decision is not supported by the original understanding of the First Amendment. The dissent attempts this demonstration, however, in splendid isolation from the text of the First Amendment.â€
The First Amendment does not, as many believe, say that the citizens have the right to freedom of speech and the press. It says â€œCongress shall make no law â€¦ abridging the freedom of speechâ€¦â€. That means that the citizens’ â€œrightâ€ is protected through the Constitutional prohibition of government’s making laws that inhibit speech. The amendment says that Congress has no right to make any law that prevents anyone from freely expressing ideas. It does not make exceptions for legal constructs like corporations or any distinctions between what sort of person or entity might engage in that expression. It simply says that Congress cannot limit anyone from freely speaking. And â€œfreedom of speechâ€ is not capitalized so it is not a defined term carrying with it any assumption such as that it is a particular right belonging to a limited number of entities, human or otherwise. That stands to reason inasmuch as much expression then, as now, was carried out by profit making enterprises.
The Founders were not directing their lawmaking to those enjoying the right. To understand this, one must understand what prompted the enactment of the Bill of Rights to begin with. The debates over the adoption of the Constitution revolved around concerns on the part of such as Patrick Henry and Samuel Adams that the Constitution provided no limits on the new government.
It was universally accepted that the federal government should be small and strong enough only to overcome the fractiousness institutionalized by the Articles of Confederation that gave supreme power to the individual states. These â€œanti-federalistsâ€ argued that without specific prohibitions, the new government would arrogate to itself power that might have the effect of impairing the hard fought liberties everyone believed were the God-given rights of man. It was their view that rights were given by God and inherent in man, not granted by the government.
The Bill of Rights, then, was directed not toward the people but as a means of limiting the government. That is why rather than spelling out the rights themselves, by saying, for example, â€œThe citizens have the right to freedom of speech.â€, it prohibited the government from enacting laws that encroached on human effort that was considered protected. That is also why the amendments did not limit the prohibitions to the acts of individuals recognizing, as they did, that political action is concerted action by collections of people and seldom the action of an individual alone.
It is absurd, then, to suggest that the Founders intended to limit the right to free expression to each individual engaging in it. No one seriously contends that the Founders intended the right to freedom of religion, another right protected from infringement by the First Amendment, to be enforceable only by individual parishioners. Does anyone doubt that, say, the Baptist Church, as a body â€“ a collection of people into a unit of worship â€“ has the right, as an entity, to sue to protect the freedom to practice its faith? Of course not.
But all of this is lost on the Left and the constitutional geniuses on the New York Times editorial board who argue that this decision â€œundermines democracyâ€. How, pray, does an expansion in the expression of ideas, philosophies and perspectives undermine democracy? Undermines democracy? What, with more ideas to choose from? With an expansion of the marketplace of ideas so celebrated in First Amendment jurisprudence?
The Left has never been noted for intellectual honesty but this, surely, represents a new low.
Nonetheless, the Citizens United decision is victory for liberty and it points the way for conservative officeholders. If the critics have any legitimate point it is that in this decision, the Court has engaged in judicial activism at odds with the thought of Edmund Burke, so celebrated by conservative thinkers as their intellectual godfather. It illustrates why Burke, as a rhetoritician without fixed philosophy, is so unsuitable an ideological role model. Burke believed in incremental change without immutable guiding principles. He argued for the preservation of what is. If conservatism is Burkean, the Court’s decision was a bad one because it was a dramatic departure from what is. If, as I argue, conservatism is a fixed philosophy of freedom that is a collection of determined principles, then it is decidedly inconsistent with Burke’s intellectual conceit.
To the extent that it is, as I urge, a determinable and defined philosophy, then, it is justified in articulating and fighting for its ideas and that means taking the time to roll back leftist programs when it has a chance to. It means being willing to dismantle what is to move state and society toward a conservative ideal.
This decision is decidedly un-Burkean and shows the way to political conservatives in their effort to achieve an ideal state and an ideal society based on conservative principles â€“ on the principles of the founding. The fact that the Court was willing to undo what was wrongly done by the Left based on anti-freedom leftist thought, is not only remarkable but should point the way to conservative politicians who need to run on the basis of a conservative ideology that includes a commitment to dismantle the leftist state when elected.
The Supreme Court has pointed the way. They need only follow.