In Janus vs. AFSCME (American Federation of State, County, and Municipal Employees), the Supreme Court (in a 5-4 decision) ruled that government unions cannot require non-members to pay union dues.
Earlier this week, Obama-appointed Supreme Court Justice Elena Kagan wrote in her minority dissent to the Janus ruling that the Court had “weaponized the First Amendment.”
The majority opinion dwelt on issues of compelled speech, noting that “because such compulsion so plainly violates the Constitution, most of our free speech cases have involved restrictions on what can be said, rather than laws compelling speech. But measures compelling speech are at least as threatening.”
Kagan, however, has other ideas and claimed in her dissent that
28 states are “right to work” and do not allow fair share fees, while 22 states are not “right to work” and do allow them. The Janus ruling, she wrote, essentially makes the decision for local governments by banning them, “and it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.” She went so far as to call the majority “black-robed rulers overriding citizens’ choices.”
“The First Amendment was meant for better things,” she concluded.
Kagan’s fantastical notion of “black-robed rulers overriding citizens’ choices” by “weaponizing the First Amendment” is puzzling. Citizens in non-right-to-work states are completely free to join a union if they so wish, and in doing so, commit to paying union dues. The only change here is that unions can no longer extort dues from non-members in any state.
Citizens’ choices have not been overridden; indeed, citizen choice is expanded under this ruling. They can join a union or not join a union, those who do not join cannot be compelled to pay union dues, but they are also not barred from doing so if they wish.
Her point about “weaponizing the First Amendment” is equally confounding. The Founders intended the First Amendment to be a weapon . . . against government tyranny and oppression. They were insistent that freedom of speech was required to check government and to maintain a free and independent citizenry.
Free speech as we’ve been chronicling here at LI for ages has come under heightened attack in recent years, particularly on our nation’s college campuses. We’ve seen poll after poll in which large swaths of young Americans (mostly, but not exclusively, leftists) believe that speech should be more restricted.
We’ve heard politicians argue that “hate speech” is not protected by the First Amendment, and we’ve seen Yale students organize a petition to repeal the First Amendment. We’ve heard that words are “violent,” and we’ve heard that “offensive,” “triggering,” and “hurtful” speech—speech someone in ear-shot hears and feels offended, triggered, or hurt by—should be unceremoniously restricted or even banned.
Kagan’s dissenting opinion, however, appears to be the impetus needed for the anti-First Amendment left to reveal themselves on their disdain for Americans’ freedom of speech.
The New York Times, for example, published a bizarre piece entitled, “How Conservatives Weaponized the First Amendment.” In it, they argue that freedom of speech, in general, and the First Amendment, in particular, are dangerous because speech is a (you guessed it) “weapon” wielded by conservatives against the assorted and isolated identity groups on which Democrats rely.
“When I was younger, I had more of the standard liberal view of civil liberties,” said Louis Michael Seidman, a law professor at Georgetown. “And I’ve gradually changed my mind about it. What I have come to see is that it’s a mistake to think of free speech as an effective means to accomplish a more just society.”
To the contrary, free speech reinforces and amplifies injustice, Catharine A. MacKinnon, a law professor at the University of Michigan, wrote in “The Free Speech Century,” a collection of essays to be published this year.
“Once a defense of the powerless, the First Amendment over the last hundred years has mainly become a weapon of the powerful,” she wrote. “Legally, what was, toward the beginning of the 20th century, a shield for radicals, artists and activists, socialists and pacifists, the excluded and the dispossessed, has become a sword for authoritarians, racists and misogynists, Nazis and Klansmen, pornographers and corporations buying elections.”
Two things stand out: the left’s focus on a “just society,” and the pretense that the First Amendment wasn’t put in place to protect unpopular speech. We don’t need a Constitutional amendment to protect popular, politically- and socioculturally-correct viewpoints, and justice is only justice when it’s not co-opted and redefined in a narrow and therefore unavoidably unjust way.
The NYT, however, in a display of quite startling deliberate obtuseness suggests that protecting unpopular, even vile and reprehensible speech, is no longer desirable. The extension of this viewpoint is clear and laughably illogical: only approved and acceptable speech needs First Amendment protection.
The undermining of our First Amendment protections doesn’t stop with a Supreme Court justice and the formerly most-respected newspaper in the country.
The ACLU has recently announced that it will become overtly active in politics, including in elections, and as an apparent extension of the ACLU’s politicization, they are also wavering on free speech.
Apparently, they will be “weighing” their interest in protecting First Amendment rights against their commitment to “social justice.” The ACLU, who should be defending individual rights and liberties, have instead committed not to actual justice under the law but to “social justice.” Social justice, of course, has nothing at all to do with justice.
The American Civil Liberties Union will weigh its interest in protecting the First Amendment against its other commitments to social justice, racial equality, and women’s rights, given the possibility that offensive speech might undermine ACLU goals.
“Our defense of speech may have a greater or lesser harmful impact on the equality and justice work to which we are also committed,” wrote ACLU staffers in a confidential memo obtained by former board member Wendy Kaminer.
. . . . It’s hard to see this as anything other than a cowardly retreat from a full-throated defense of the First Amendment. Moving forward, when deciding whether to take a free speech case, the organization will consider “factors such as the (present and historical) context of the proposed speech; the potential effect on marginalized communities; the extent to which the speech may assist in advancing the goals of white supremacists or others whose views are contrary to our values; and the structural and power inequalities in the community in which the speech will occur.”
The memo also makes clear that the ACLU has zero interest in defending First Amendment rights in conjunction with Second Amendment rights. If controversial speakers intend to carry weapons, the ACLU “will generally not represent them.”
It’s become somewhat trite and pat to state that the left engages in projection, that the left is always the one guilty of the wrongs it attributes to others, but sometimes trite and pat make the most sense.
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