If you are a journalist of a certain age, as well as an old-guard First Amendment liberal, then you remember what it was like trying to get people to understand why you backed ACLU efforts in 1978 to defend the rights of a neo-Nazi group to march through Skokie.
Clearly this march was going to cause pain and emotional suffering, since that Chicago suburb included many Holocaust survivors. But First Amendment liberals stood firm.
If you grew up Southern Baptist in the Bible Belt, it was also hard to explain why you thought Hustler magazine had the right to publish a filthy, sophomoric satire of the Rev. Jerry Falwell, including a fake claim that he had committed incest with his mother in an outhouse.
That case went to the U.S. Supreme Court. As a New York Times report at the time noted, this Hustler piece was clearly satire and the First Amendment wasn't supposed to protect people from feeling offended or even abused by voices in the public square.
The central legal issue is whether, in the absence of the kinds of false statements purporting to be fact on which libel suits are based, a public figure like Mr. Falwell should be able to win damages from a publication that intentionally causes emotional distress through ridicule, tasteless or otherwise.
Several Justices suggested they were grappling with a conflict between the freedom of the press to carry on a long tradition of biting satire, and what Justice Antonin Scalia called the concern that ''good people should be able to enter public life'' without being exposed to wanton abuse in print.
I remember, back then, liberals saying they would be quick to defend the First Amendment rights of conservatives who spoke out on tough, tricky and even offensive issues.
This brings me to one of the most Twitter-friendly stories of this past weekend, a Times report that ran with this rather blunt headline: "Weaponizing the First Amendment: How Free Speech Became a Conservative Cudgel." It's amazing how little religious content is in this report, in light of waves of religious-liberty fights in recent years.
If you are looking for the thesis statement or statements in this article -- which I think was meant to be "news," not analysis -- here it is:
... Liberals who once championed expansive First Amendment rights are now uneasy about them.
“The left was once not just on board but leading in supporting the broadest First Amendment protections,” said Floyd Abrams, a prominent First Amendment lawyer and a supporter of broad free-speech rights. “Now the progressive community is at least skeptical and sometimes distraught at the level of First Amendment protection which is being afforded in cases brought by litigants on the right.”
Many on the left have traded an absolutist commitment to free speech for one sensitive to the harms it can inflict.
In other words, many leaders -- not all -- on the intellectual left are now using precisely the same kind of arguments that the Falwell legal team used in its unsuccessful legal battle with Hustler. Back in those heady days, journalists referred to this kind of strategy as "attacking" or even "threatening" the First Amendment.
So what is going on? Here is the Times thesis statement, part II:
... 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.”
There certainly have been problems with powerful corporations, billionaires, etc. But again, Free Speech often causes pain and offense.
But where are the battles over religious speech and acts? Isn't that part of this story?
After all, if you follow this logic of this Times analysis, then workers at low-budget religious ministries that offer women alternatives to abortion actually represent "the powerful" classes in California, in a free-speech fight with government, Planned Parenthood, et al, over whether ministries can be compelled to give women what amounted to referrals to abortion facilities.
When you apply this to other crucial First Amendment doctrines then you would find yourself defending the rights of a single baker (a traditional Christian) to decline a request to create a one-of-a-kind artistic cake celebrating a same-sex wedding rite (after offering the couple any of the standard cakes or desserts in his shop). The baker's very narrow, faith-based refusal of this task was offensive and caused pain, yet the gay couple had many other options in the local marketplace. The baker is "the powerful" force in this legal fight?
It would also be possible to defend Catholic nuns who refused government commandments that they cooperate with efforts to provide contraceptive options to their own staff, in violations of important Catholic doctrines linked to their mission. The elderly nuns represent the "the powerful" classes in this legal fight?
This Times piece, if the goal was balance, really needed to document cases of conservative forces rising up, during the past decade or two, to DENY First Amendment freedoms to liberal people and liberal organizations. Shouldn't we be seeing a wave of those? Are liberal voices being silence in public life (as opposed to inside private associations)?
For example, are there examples of liberal, perhaps mainline Protestant, churches and ministries being pressed to violate their doctrines, perhaps being compelled to deliver messages that violate elements of their evolving doctrines? Perhaps there are cases linked to the sanctuary movement?
I am left, once again, wondering what label to assign to contemporary people and groups that are weak in their defense of free speech, weak in their defense of freedom of association and weak in their defense of the free exercise of religion. What should fair-minded journalists call them? What should the Times team have called the powers that be on the "progressive" side of the debate (including the newspaper's editorial-page team)?
The one label that cannot be assigned to these groups is "liberal." That just won't fly, in the wider context of American political thought.
Over at The Federalist -- a "conservative" site, but old-guard liberal on these issues -- David Marcus wrote the following, trying to call back echoes of the First Amendment good old days:
The “I abhor your views, but will die defending your right to express them” crowd, once the solid center of liberal thought, has been pushed to the side. ...
I recently participated in a panel at the Smithsonian Museum about the arts in our society. Peter Schjeldahl, the longtime head art critic at The New Yorker, was among the panelists. Afterwards, while smoking cigarettes outside the venue, Peter said to me, “So, you’re a conservative?” I nodded. Then he said, “I’m an old, mushy liberal, but I might be a conservative now.” It’s easy to see why.
In the late ’80s, this was a guy in the middle of the fight about censorship of art. He, like me, belongs to a generation of artists and critics for whom free speech was the sun and the stars, the oxygen that gives breath to creative expression. What I believe he meant was not that he wants tax cuts and fewer environmental regulations, but rather that he does not want to live in a society that by law limits what he can see, read, or experience.
Yes, I will ask the obvious question: Where is that side of this debate, in this strange new Times analysis piece?