Has the Right Rediscovered the First Amendment?

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The GOP has not historically been the party of the First Amendment. In the most explosive political debates since the Second World War — from the McCarthyite purges of the 1950s to the flag burning debates of the 1990s to Bush-era speech restrictions — the establishment right has tended to elevate other priotities (conformity, order, national security) above liberty of expression. Progressive journalists and politicians have generally been the champions of freedom of speech. But all this is changing.

The most recent example is the Obama administration’s adoption of an astonishingly broad definition of sexual harassment on college campuses. Under the provisions of a joint letter issued May 9 by the Departments of Justice and Education, universities must put in place unprecedented speech codes or risk losing federal funding. Eugene Volokh, a UCLA law professor and first amendment expert, has one of the best summaries of the mandate:

Under these speech codes, universities would be required to prohibit students from, for instance,

1. saying “unwelcome” “sexual or dirty jokes”

2. spreading “unwelcome” “sexual rumors” (without any limitation to false rumors)

3. … “circulating or showing e-mails of Web sites of a sexual nature”

4. engaging in “unwelcome” “display[] or distributi[on of] sexually explicit drawings, pictures or written materials”

5. making “unwelcome” sexual invitations.

This is not limited to material that a reasonable person would find offensive. Nor is limited to material that, put together, creates a “hostile, abusive, or offensive educational environment.” … Every instance of such material of a “sexual nature,” under the government’s approach, would be “sexual harassment” and would need to be banned.”

Greg Lukianoff, the president of the nonpartisan Foundation for Individual Rights in Education, pointed out in a Wall Street Journal op-ed that under the mandate, “an unsuccessful request for a date, or even assigning a potentially offensive book like ‘Lolita,’ could now be construed as harassment.” He is barely hyperbolizing when he says “the right not to be offended has been enshrined in federal mandate.”

If there are any authorities on First Amendment law outside the employ of the Obama administration who support this Orwellian policy, I am not aware of them. But what’s remarkable is that virtually all of the defenses of free speech in the wake of the mandate have come from conservative media outlets like WSJ, The American Spectator, CATO, Campus Reform, The Washington Times, The Manhattan Institute, and so on. ThinkProgress, on the other hand, said the policy is “a step in the right direction to ensure that students’ concerns are being heard.”

My point isn’t just to criticize this indefensible policy, which has already been torn to pieces by Volokh, Lukianoff and other experts. It’s to illustrate an important shift taking place in American politics: the left’s slow retreat from its historical position as the primary champion of the First Amendment.

As the Democratic party has grown more assertive in its social progressivism over the past few years, its enthusiasm for free expression has waned. A few examples: Last yearDemocratic mayors sought to expel Chik-fil-A from their cities because its president opposes gay marriage. A few months later the Obama administration pressured Google to remove an offensive anti-Muslim video from the internet. And in April of this year, left-wing groups launched a campaign to urge Rochester University to fire a professor for posting a thought experiment about sex and consent on his blog.

All these efforts to restrict speech represent earnest attempts to advance worthy goals — like inclusiveness for gay people, sensitivity toward Muslims’ religious traditions or women’s safety. But the recent wave of left-wing attempts at censorship, culminating with the federal harassment speech code, make it abundantly clear that large factions on the left don’t seem to care if they abandon the first amendment on the way to social progress. This puts conservatives in the unprecedented position of being the guardians of free expression.

Perhaps the contrast between the left and right on free speech is made more vivid by the ascent of the Rand Paul wing of the Republican party, which stresses civil liberties and individual freedom, and the decline of social conservatives intent on banning pornography and flag-burning. And of course, the fact that a Democratic administration is currently in office makes it easier for Republicans to criticize federal overreach on speech issues.

But at their most basic level, the latest developments in First Amendment politics simply confirm a maxim about freedom of speech: While it is very easy to employ the first amendment to defend speech you like, it’s much harder to defend speech you don’t like. Political appeals to free speech are usually selective.

Fifty years ago, liberals defended victims of Communist witch hunts less because of a moral commitment to free expression than because they disliked the morally absolutist right-wing Cold War synthesis. Republicans’ twenty-first century rediscovery of the First Amendment in the context of debates over sexual orientation, race and gender may likewise be more motivated by politics than principle. But it is a welcome development nonetheless.

I invite you to follow me on Twitter or email me at jawillick at gmail dot com.

The Independent Voter Network is dedicated to providing political analysis, unfiltered news, and rational commentary in an effort to elevate the level of our public discourse.


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  1. easy beats by dre online to use isabella423 Has the Right Rediscovered the First Amendment? – Devil's Advocate
  2. Theodore Macris Let's not forget both the hard Left and the Hard Right hate the US Consisution while they both supported the Westboro Baptist CHurch.
  3. Scotty Mcwilliams The Constitution really does need revision and redoing. We shouldn't end it, but we should revise it to fit common sense and to make it fit into this day and age.
  4. Alex Gauthier many dont consider how this can cut both ways. Theoretically, men would be just as susceptible as women to abuse the provisions, rendering them utterly unenforceable
  5. Tim T Danks-Ferguson How is the "right" finding the 1st amendment a welcome change? From this article it merely sounds like they are doing the opposite of the left. I am not sure but that sounds more like business as usual. The opposing of the opposite party merely because they have the power?
  6. Stephen Bone Apple was a failed company in the 1990s and yet today it is the largest tech company in the world. Apple's PDA also failed, and yet there is one in hundreds of millions of people's pockets all over the world today. History takes detours.
  7. Christopher Smith Democrats have never been for the 1st Amendment for all. Only for themselves and the Elites running the show. Just look back in the true history, not the one pushed by Progressive Union Thug Scholarly types that don't know their tail from a hole in the ground. Jim Crow Laws, Concentration Camps, Exterminate of Foreign Thought are all Ideology of the left, both Progressives and Liberals. Margret Sanger founder of Planned Parenthood, Racist wanting to exterminate minorities. I could post videos all day of Liberal Scholars from the 60's and 70's openly discussing the idea of concentrating and exterminating anyone that does not adhere to their utopia. Unions the same thing. I have and can post endless videos from the 60's and 70's showing Union racism. All of the Greatest Defenders of Equality and Freedom have been Republican Conservatives. Lincoln, Dr. Martin Luther King, and Reagan. The Black male was the fastest rising financial Demographic in the late 80's and 90's thanks to the War on Drugs and improvements to Education and Awareness under Reagan. The Republicans of the 60's stop Jim Crow Laws and Segregation from continuing, as the Democrats fought kicking and screaming. http://en.wikipedia.org/wiki/Jim_Crow_laws
  8. Stephen Bone The "Right" is not rediscovering anything. The Right-Left paradigm was always foreign to America. What is occurring is considerably more complex. Post-Bush American conservatives are rediscovering tradition American Classical Liberalism through the process of purging European neo-conservatism. Hopefully American liberals post-Obama will have the wisdom to do the same. Europe is failing in Europe. There is no need to let it fail here as well.
  9. John MacAulay IV Yeah, I think that using the DoJ to go after reporters and using the IRS to go after political opponents could have a much more chilling effect on freedom of speech than any policies on sexual harassment. Heck, if we are going to look at colleges, we should look at the 'free speech zones' on campuses. If you only have free speech in a specific area, that means you do not have freedom of speech anywhere else on the campus. It is kinda funny, the hippies from the 1960's who thought they were all for freedom of expression when they were younger (who never left college for the real world) are some of the biggest oppressors of free speech out there.
  10. John Henery Let,s get back to the consitition . This country should be run by the majerlty and not the few.
14 comments
Chad Peace
Chad Peace

Well said. While, aside from the Paulites and some other more libertarian Republicans, I think the defense of the First Amendment (and 4th and 5th, etc...) is largely a result of the political advantage ... was difficult to advocate with Bush in office.

jmdenn
jmdenn

Another disturbing "take" on the First Amendment is on free speech about "topics." Lefties wants to overturn SCOTUS' Citizen's United ruling and go even further to no corporate free speech. So, if a person wants to speak for or against fracking they can, but if two or more people wish to join together to do so, with limited liability, they can't? This is a slippery slope. Again, here the righties seem to be in the lead defending the first amendment.

Joseph Sciortino
Joseph Sciortino

If you think the Obama administration is "left", you've lost the plot.

Jason Harsha
Jason Harsha

Where's the outrage at the blatant attack on the 1st when it comes to how the DoJ is going after journalists?

Stephen Bone
Stephen Bone

The "Right" is not rediscovering anything. The Right-Left paradigm was always foreign to America. What is occurring is considerably more complex. Post-Bush American conservatives are rediscovering tradition American Classical Liberalism through the process of purging European neo-conservatism. Hopefully American liberals post-Obama will have the wisdom to do the same. Europe is failing in Europe. There is no need to let it fail here as well.

John MacAulay IV
John MacAulay IV

Yeah, I think that using the DoJ to go after reporters and using the IRS to go after political opponents could have a much more chilling effect on freedom of speech than any policies on sexual harassment. Heck, if we are going to look at colleges, we should look at the 'free speech zones' on campuses. If you only have free speech in a specific area, that means you do not have freedom of speech anywhere else on the campus. It is kinda funny, the hippies from the 1960's who thought they were all for freedom of expression when they were younger (who never left college for the real world) are some of the biggest oppressors of free speech out there.

John Henery
John Henery

Let,s get back to the consitition . This country should be run by the majerlty and not the few.

Theodore Macris
Theodore Macris

Let's not forget both the hard Left and the Hard Right hate the US Consisution while they both supported the Westboro Baptist CHurch.

Alex Gauthier
Alex Gauthier

many dont consider how this can cut both ways. Theoretically, men would be just as susceptible as women to abuse the provisions, rendering them utterly unenforceable

Scotty Mcwilliams
Scotty Mcwilliams

The Constitution really does need revision and redoing. We shouldn't end it, but we should revise it to fit common sense and to make it fit into this day and age.

Tim T Danks-Ferguson
Tim T Danks-Ferguson

How is the "right" finding the 1st amendment a welcome change? From this article it merely sounds like they are doing the opposite of the left. I am not sure but that sounds more like business as usual. The opposing of the opposite party merely because they have the power?

Stephen Bone
Stephen Bone

Apple was a failed company in the 1990s and yet today it is the largest tech company in the world. Apple's PDA also failed, and yet there is one in hundreds of millions of people's pockets all over the world today. History takes detours.

Christopher Smith
Christopher Smith

Democrats have never been for the 1st Amendment for all. Only for themselves and the Elites running the show. Just look back in the true history, not the one pushed by Progressive Union Thug Scholarly types that don't know their tail from a hole in the ground. Jim Crow Laws, Concentration Camps, Exterminate of Foreign Thought are all Ideology of the left, both Progressives and Liberals. Margret Sanger founder of Planned Parenthood, Racist wanting to exterminate minorities. I could post videos all day of Liberal Scholars from the 60's and 70's openly discussing the idea of concentrating and exterminating anyone that does not adhere to their utopia. Unions the same thing. I have and can post endless videos from the 60's and 70's showing Union racism. All of the Greatest Defenders of Equality and Freedom have been Republican Conservatives. Lincoln, Dr. Martin Luther King, and Reagan. The Black male was the fastest rising financial Demographic in the late 80's and 90's thanks to the War on Drugs and improvements to Education and Awareness under Reagan. The Republicans of the 60's stop Jim Crow Laws and Segregation from continuing, as the Democrats fought kicking and screaming. http://en.wikipedia.org/wiki/Jim_Crow_laws