Progressive Free Speech?

On Tuesday, September 11, the Cato Institute hosted an event entitled ‘Can Free Speech be Progressive?’, which featured three liberal professors who discussed their views of free speech in America. This event came about due to one of the professors, Louis Michael Seidman from Georgetown Law, writing an article in which he argues that free speech in America cannot be progressive.

Early in his speech at the event, Seidman said: “Although the 1st amendment is useful to progressives in certain cases, progressives who think it can be used to further progressive movements are kidding themselves.” He said that “… instead of providing a shield for the powerless, the 1st Amendment has often become a sword used by people at the apex of American political power.”

He mentioned cases in which he believes that conservatives have used free speech as a weapon, and one of these includes the issue of campaign finance. He also stated that free speech depends upon the issue of property ownership, saying: “If we’re serious about free speech, then we have to be much more serious about an equitable distribution of the property that makes speech possible, and the government has a role to play in creating that equitable distribution.”

Finally, Seidman said: “I make a strong distinction between free speech law and free speech sensibilities.” Seidman disagrees with what has happened with free speech laws and implementation, but still says he values open discussion, especially at universities.

After Seidman spoke, Professor Ronald K. L. Collins from the University of Washington law school, said: “So I think Mike’s essay gets us to move if you will from blind black and white doctrine to larger questions about political philosophy.”. He also said that: “’There is much in contemporary 1st amendment law that is at war with basic tenets of conservatism.” He pointed Robert Bork’s opposition to certain commercial speech as an example of this trend.

Even though he criticized conservatives, he also said: “It cannot be denied that free speech is on the run in the liberal community.” An example of this was when Governor Cuomo of New York threatened groups who had ties to the NRA and the ACLU supported the NRA’s in this case.

Yet and still, he claimed that “At the end of the day the real problem here… isn’t 1st Amendment doctrine… the real problem, perhaps, is the 1st Amendment itself.” Finally, he said that “Those who defend a robust form of free speech… should not deny its real world consequences.” A consequence could be the issue of campaign finance.

Professor Robert F. Bauer from New York University’s school of law, described himself as a progressive with strong libertarian instincts. He disagreed with Seidman because Bauer gave the view that the 1st Amendment is progressive. He said: “I want to focus on free speech as an absolutely necessary component of effective political organizing and action, and I believe that, the ability to do politics… is grounded in a 1st Amendment associational right which is too often reduced to the notion that it is simply an aggregate of individual speech rights. It’s much more than that in my view.”

He considers speech action. He mentioned that he disagrees with many on the left on the issue of campaign finance restrictions. He said: “It is in fact, precisely, the attack of campaign finance regulation in the modern era on the ability of groups to organize that led organized labor in particular to break with the reform community….” Bauer also worries about the danger of bureaucratic control of speech, namely that it would impede the ability of people to do politics.

He concluded by commenting on the point Seidman made about free speech sensibilities and the similar point made by Collins about free speech culture, saying: “… it’s very difficult to imagine preserving a free speech culture or preserving free speech sensibilities if we don’t have robust protections for free speech itself.” He then repeated his main concern, which is that restrictions on the 1st Amendment could impede the ability of people to do politics.

Seidman suggested that maybe the government facilitating the doing of politics in other matters meant that it could facilitate speech as well. Collins discussed Seidman’s view, saying that Seidman takes issue with the modern idea of ‘rights,’ or the idea that ‘the rights domain rules.’

Bauer argued that the government can facilitate in a way we can all agree on; he mentioned the government spending more money to improve our electoral system. Seidman mentioned that he sees hate speech as a possible problem, but also thinks that attempts to regulate it are not usually done well. Close to the end of the event, Seidman said that the 1st Amendment is neutral, so it is not technically progressive. He also said that he disagrees with the idea that people are usually freer if the government does not act.

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