Justice Elena Kagan has a way with words. The conservative majority on the court, she said after two recent rulings, is “weaponizing the First Amendment.”
What a phrase! But what does it mean?
“Conservative groups, borrowing and building on arguments developed by liberals,” explains Adam Liptak in The New York Times, “have used the First Amendment to justify unlimited campaign spending, discrimination against gay couples and attacks on the regulation of tobacco, pharmaceuticals and guns.”
First: if “liberals” now find themselves not supporting the idea of particular freedoms, or freedom in general, are they really “liberal”?
Second: “borrowing arguments” is what we expect to happen. Logic isn’t partisan.
Third: the point of the Bill of Rights is to “weaponize” the defense of freedom.
Remember, it is freedom of speech; freedom of the press; freedom of association; freedom of exercising one’s religion. The First Amendment weaponizes their defense by disallowing Congress from legislating against them.
Now, it has long been a “problem” that these listed freedoms blend together. They all work together or don’t work at all. And each points to freedom more broadly.
Kagan wants to read freedoms narrowly — though liberals have, indeed, read them broadly in the past.
Our left-of-center justice was objecting to two recent rulings. The first, decided June 26, prohibits states from requiring pregnancy centers to talk up abortion options to their clients. An obvious free speech issue. But free speech is not the point of progressivism. Requiring businesses or charities to parrot specific lines appears to be the major point of being a progressive these days.
And of course abortion is a major fixation of the left. You mustn’t counsel a young pregnant woman about her health without telling her how nifty and legal and cheap it can be to kill her baby — why, that would be malpractice! So California’s Democratic government enacted a specific law, the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act), to force crisis pregnancy centers to notify women that California provides free or low-cost abortions. Justice Clarence Thomas, delivering the opinion of the Court, noted that “neither California nor the Ninth Circuit [which had previously ruled in favor of FACT] has identified a persuasive reason for treating professional speech as a unique category that is exempt from ordinary First Amendment principles.”
Which is where Justice Kagan gets upset. Though “liberals” have long advocated expansive readings of the First Amendment — like treating symbolic action as speech, for instance, in flag-burning cases — she doesn’t exactly like expanding freedom of speech into areas where she wants government to be heavily involved.
The second ruling, decided on the 27th, prohibits governments from backing unions in their extraction of “agency fees” from non-members. “Under Illinois law,” summarized Justice Samuel Alito, delivering the majority opinion in Janus v. AFSCME, “public employees are forced to subsidize a union, even if they choose not to join and strongly object to the positions the union takes in collective bargaining and related activities. We conclude that this arrangement violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.” Much of Alito’s decision dealt with a previous Supreme Court ruling, Abood v. Detroit Bd. of Ed, which Janus overturns. This is a major reversal.
You can see why Democrats might be worried. Unions provide a not-insignificant source of Democratic funding. Businesses also give to Democrats, but the Republicans get some of this funding, while union political donations are almost wholly directed towards the Democrats. So you can see why Democrats are especially worried.
Including a Supreme Court Justice who happens to be a Democrat.
But don’t let that dominate the conversation. For, really, what is at stake, here, is the scope of freedom. Republicans and Democrats spend much of their time carving up different sectors of society for where freedom is relevant and where freedom is irrelevant. Elena Kagan and The New York Times apparently think that “liberalism” means defending some freedoms in some contexts but denying freedom in others. But grant them their shock, for, as Liptak’s Times piece mentions how it used to be: Republican jurisprudence not long ago read the First Amendment quite narrowly.
The current rulings are decidedly not narrow.
“Speech is everywhere — a part of every human activity (employment, health care, securities trading, you name it),” the Times quotes Justice Kagan. “For that reason, almost all economic and regulatory policy affects or touches speech.”
But even this puts it too narrowly. For it is not just speech that the First Amendment is about. It is about freedom of association, too. And religion, and . . .
“So the majority’s road runs long,” she goes on. “And at every stop are black-robed rulers overriding citizens’ choices.”
And here we see where progressives always err. They think “citizens’ choices” are centered on creation of laws and access to “programs.” Yet citizens’ choices are mainly about everyday life in all contexts. Including resisting government programs. And confiscatory policies backed by states.
Freedom is relevant quite broadly. Thankfully, we have the First Amendment — the best weapon of all.