Liberals And Free Speech

In an interesting post today, Ilya Somin criticizes President Obama’s assertion, in his inaugural address, that “The question we ask today is not whether our government is too big or too small, but whether it works.” Here’s Somin:

This is a commonly heard argument in response to concerns about the growth of government. Who could possibly be against government when it “works”? Why not instead consider each proposed expansion of the state on a case by case basis, supporting those that “work” and opposing any that don’t?

Taken seriously, this argument leads to the rejection of any systematic constraints on government power. Why should we have a general presumption against government regulation of speech or religion? Why not instead support censorship when it “works” by improving the marketplace of ideas, and oppose it when it doesn’t? Think of all the misleading speech and religious charlatans that government regulation could potentially save us from!….

But, as Somin surely knows, this argument is more than “taken seriously” by liberals today. Indeed, they assert and affirm it vigorously, even to the point of arguing that government should regulate speech in a way that restricts the speech of the powerful in order to enhance the speech of the less powerful.

As long ago as 2002 I noted (here):

From John Stuart Mill on one of the central commitments of liberalism was to free speech. Insofar as American liberals have had a religion, one of its central tenets had always been the sanctity of the First Amendment’s free speech protections. In the late 20th Century, however, much of mainstream liberalism turned away from that formerly firm conviction. Feminists favored laws against pornography. Civil rights advocates favored punishment of hate speech. Campaign finance law reformers even favored limitations on political speech, and leading liberal academics (Owen Fiss at Yale, Cass Sunstein at Chicago) began to argue that the speech of some should be limited so that the speech of others could be enhanced….

Similarly, I began a post in 2006 on “The Degradation of American Liberalism” by quoting the following from a George Will column:

For several decades in America, the aim of much of the jurisprudential thought about the First Amendment’s free-speech provision has been to justify contracting its protections. Freedom of speech is increasingly “balanced” against “competing values.” As a result, it is whittled down, often by seemingly innocuous increments, to a minor constitutional afterthought.

On campuses, speech codes have abridged the right of free expression to protect the right — for such it has become — of certain preferred groups to not be offended. The NCAA is truncating the right of some schools to express their identity using mascots deemed “insensitive” to the feelings of this or that grievance group. Campaign finance laws ration the amount and control the timing and content of political speech. The right to free political speech is now “balanced” against society’s interest in leveling the political playing field, or elevating the tone of civic discourse, or enabling politicians to spend less time soliciting contributions, or allowing candidates to control the content of their campaigns, or dispelling the “appearance” of corruption, etc.

To protect the fragile flower of womanhood, a judge has ruled that use of gender-based terms such as “foreman” or “draftsman” could create a “hostile environment” and hence constitute sexual harassment. To improve all of us, people with various agendas are itching to get government to regulate speech of this or that sort.

I then added that I thought Will’s argument

could, and thus should, have been even stronger. For the past generation the best and brightest liberal scholars — especially but not limited to those teaching in law schools — have been hard at work creating, developing, and refining highly sophisticated theories to justify restrictions on speech (see, for example, books by Owen Fiss at Yale and Cass Sunstein at Chicago)….

Here’s an earlier Will column making the same points, with criticism of “a symptomatic new book, ‘Republic.Com,’ by University of Chicago law professor Cass Sunstein.

Sunstein, who is now at Harvard and who has famously called for “a New Deal for Free Speech” that would regulate speech for purposes, and in ways, similar to the way the old New Deal pioneered regulation of the economy, has recently been selected by President Obama to head the very influential Office of Information and Regulatory Affairs.

In his new position, Sunstein will oversee reform of regulations, seeking to find smarter approaches and better results in health, environment and other domestic areas, a transition source said.

The office Sunstein will head is part of the Office of Management and Budget and is responsible for reviewing draft regulations and overseeing the implementation of government-wide policies aimed at making federal agencies more efficient, according to the mission statement on its Web site.

Hold onto your old First Amendment!

Say What? (3)

  1. CaptDMO February 2, 2009 at 12:38 pm | | Reply

    Golly, in fairness, ANYTHING

    will eventually “work”, with a large enough steady supply of other peoples treasure poured into it-with prejudice and …by any means necessary.

    Sadly, the treasure must now come from children, and grandchildren, educated with gum’mint subsidy and “oversight”, by “public” schools and colleges.

    I predict a new-found interest in mandatory daily recitation of a modified “pledge” and/or “anthem” at ALL gatherings, just like some other societies.

  2. willowglen February 3, 2009 at 2:30 pm | | Reply

    You don’t say.

    Last Friday, January 30, 2009, President Obama signed an Executive Order entitled the “Economy In Government Contracting,” which forbids reimbursement of the union-organizing expenses of federal contractors. Specifically, for contracts in which “certain costs are treated as unallowable,” the Executive Order instructs federal agencies to treat as “unallowable the costs of any activities undertaken to persuade employees—whether employees of the recipient of the Federal disbursements or of any other entity—to exercise or not to exercise, or concerning the manner of exercising, the right to organize and bargain collectively. So much for a recent Suprement Court decision ruling that the National Labor Relations Act favors “uninhibited, robust, and wide-open debate in labor disputes” and held that a California statute (similar to this executive order) was preempted because it interfered with “the right of employees . . . to receive information opposing unionization.” Chamber of Commerce v. Brown, 128 S. Ct. 2408, 2414 (2008).

    Employees need to be protected from anything negative anyone might say about unions. And of course, they can’t think for themselves. So let’s make sure someone with the right kind of worldview and academic pedigree can do it for them. Hurrah!

  3. Robert February 3, 2009 at 10:44 pm | | Reply

    Nothing can be more important than knowing the truth, so one can act on reality. There is no such right as a right not to be offended – it doesn’t exist in human nature OR in reality, unlike the right to self-ownership, which is embedded in both, which makes it real. Infringing on everyone’s ability to discover the truth in order to uphold some phony, made-up “right” does everyone an unacceptable injury. Maybe those who would dare to infringe on everyone’s right to their own conscience and ability to discover the truth need to be on the receiving end of a flood of lawsuits on that tort.

Say What?