The freedom of citizens and the progressives’ war against it

Floyd Abrams, dean of First Amendment law (and quite the liberal, in the classical sense) is disturbed by the left’s attempt to transform the individual’s rights recognized by our constitution into a collective one.

What seems to me most surprising and disturbing about the [McCutcheon v. FEC ] ruling, though, is not to be found in the predictably much assaulted (and I believe sound) majority opinion but in the dissent.  For there, for the first time, Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan join with Justice Stephen Breyer’s minimization of long-recognized  and well-established First Amendment interests by maintaining that, after all, the side seeking to overcome those interests had at least as strong a First Amendment argument on its side.  In McCutcheon, that argument is based on the notion that the avoidance of whatever is defined as “corruption” strengthens the First Amendment.  With the First Amendment thus placed in some sort of supposed equipoise (since “First Amendment interests lie on both sides of the legal equation”) the case becomes an easy one.  It is, in my view, but in a different direction.

In his dissenting opinion in McCutcheon, Breyer takes that a step further, concluding that “the First Amendment advances not only the individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters.”  (emphasis in original).  The First Amendment, he maintains, must be understood as promoting “a government where the laws reflect the very thoughts, views, ideas and sentiments, the expression of which the First Amendment protects.”

…[W]hat … does Justice Breyer mean by “collective speech?” In his opinion, Chief Justice John Roberts persuasively objects to relying on the “generalized conception of the public good” set forth in the Breyer dissent, taking issue with the very notion of “collective speech” as being contrary to “the whole point of the First Amendment” of not permitting the will of the majority to carry the day by preventing speech of which it disapproved.

…. But at least on this issue, only one side believes that the best protection for democracy is more rather than less speech.  That is a disturbing and recurring reality.

Those who object to the submersion of an individual’s right of free speech into an undifferentiated soup of a “collective right” might also look at what’s happening to our Second Amendment. The (retired, thank God) Supreme Court Justice John Paul Stevens is out with a book on suggested changes to our constitution; it’s full of ways to strengthen the hand of the central government at the expense of individuals and state governments, naturally, but it’s his proposed change to the Second Amendment that most clearly illuminates his intentions:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed.”

Four out of nine Supreme Court justices want to interpret the First Amendment as a right subservient to the collective good of the community and I suspect those same four would agree with Justice Steven’s proposal. After that, the Fifth? Surely, the collective good of the people trumps the right of a defendant to refuse to help the police with their inquiries.

And so on, right down the line.


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11 responses to “The freedom of citizens and the progressives’ war against it

  1. Libertarian Advocate

    Chief Justice John Roberts persuasively objects to relying on the “generalized conception of the public good” set forth in the Breyer dissent, taking issue with the very notion of “collective speech” as being contrary to “the whole point of the First Amendment” of not permitting the will of the majority to carry the day by preventing speech of which it disapproved.

    Odd how the academic left suddenly HATES the First Amendment now, isn’t it?

  2. Example of another twist First Amendment disregard is censoring, by media and politicians.
    Sunday Morning never mentioned today Nevada events and minute with nature end spot was wild horses from Rachel Carson named reserve. Dupont vs. Carson was the first great green gift to fundraiser phonies. Banning of DDT was political censorship. Proven to not be a factor in shell weakness before Silent Spring was published it is still genuflected too daily. DDT was a pest deterrent not and insecticide. Overused for sure but now allowed against Malaria bearing insect habitats.
    Silence is censorship, we should never self censor but First it up…LOUDLY!

  3. anony

    That dolt, Jerry “I ate the tamale w/o shucking it” Ford, went to his grave defending his nomination of Stevens. Jerry was stupid, intelligent Ike admitted his worst mistakes.

    Read this demented Letter from Gerald R. Ford

    Funny that moderate Rep prez’s are always “surprised” by their Supreme picks, Dems, not so much. Jerry – the guy who wanted Douglas impeached – didn’t want his legacy to be that of a dope who was hoodwinked, but instead just looked like a vain dope trying to defend his legacy.

    It didn’t work. While there are legions of “Reagan Republicans”, I can’t recall any sentient person calling themselves a “Ford Republican”. Sure, there are a few old farts like Melvin Laird that defend Ford and decry Reagan, but they are almost as extinct as the dinosaurs.

  4. Inagua

    The geriatric imperative makes it inevitable that President Hillary Clinton will appoint justices who will end this debate — Scalia is 78; Thomas is 65; and unreliable Kennedy is 77.

  5. Al Dente

    No more individual comments! That goes against the Collective.

  6. The idea that political contributions are protected free speech is a recent expansion of the First Amendment. However, it should not come as a surprise that extremely generous contributions are sometimes rewarded on one level or another. This creates a tension between the First Amendment right to contribute (now protected speech) and contributions that are one half of a quid pro quo, (which is corrupt.) McCutcheon is a rational effort to define where to draw the line, which is what the law is all about. Characterizing some of the language in this dissent as a collectivist conspiracy that threatens our Bill of Rights is a bunch of paranoid hysteria, An original advocate of a “generalized conception of the public good” was John Stuart Mill who defined “public good” as the sum total of “private good”, a present-day example of which is having enough money to go shopping on Greenwich Avenue. Our constitution is not going up in smoke.