That’s the title of my latest column at the Federalist analyzing a law review article mentioned in that recent New York Times “news” story about conservatives “weaponizing” free speech. Georgtown’s Prof. Seidman argues that the free speech right as conceptualized in American law is at its core not progressive, and I’m inclined to agree, even if his account of the history of the law and his understanding of how media works are flawed.
What got left out for space? In a column about a substantial article discussing a complex topic, plenty. I’ll mention some historical items here.
For example, something Seidman barely alludes to — and which I don’t really mention as a criticism — is that the Supreme Court did not get into the business of judging whether state laws violated the first amendment (through its “incorporation” against the States via the fourteenth amendment) in a serious way until after 1925. That’s not the only reason America’s free speech jurisprudence was less libertarian through the mid-20th century. But the fact that the Court was necessarily considering fewer speech claims through much of our history was a factor in how often the Court was obliged to wrestle with the essentially libertarian ideas at issue.
Seidman’s account of history also skips WWII, during which FDR was certainly keen to prosecute seditionists, but was moderated by his Attorney General, the need to preserve wartime secrets, and other factors. FDR was more successful in employing other tactics of censorship, though the Court was not bad on speech-related issues, including the Pledge of Allegiance case. All of this is covered in an article by Prof. Geoffrey R. Stone. Given that the Court was in other ways pliant to FDR’s wartime agenda, its fairly libertarian record on speech issues is notable, even if it does not fit Seidman’s odd retelling.
Indeed, had Seidman simply acknowledged a general long-term trend toward a libertarian reading of the first amendment (albeit not a purely straight-line path thereto), he could have more strongly made the case that the core of the text was quite likely to lead the Court where it did — which is why he thinks the first amendment can’t be progressive. He chose instead to present a more convoluted tale that seems designed to pitch fellow progressives on the idea that the Court has rarely been useful to them, even though he concedes in his introduction that it has been on occasion.
OT: Tomorrow’s the Fourth of July, so I’ll re-link to my piece on “(Fictional) Advice to John Adams.” Happy Independence Day!
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