By David Cole
Have conservatives hijacked the First Amendment?
Critics are increasingly making this claim, maintaining that under Chief Justice John G. Roberts Jr., the First Amendment, once an important safeguard for progressive speech, has become a boon to corporations, conservatives and the powerful.
But in most instances, the First Amendment doesn’t favor speech of the right or the left; it simply takes the government out of the business of controlling speakers by virtue of what they say. It often empowers the powerless. And most important, it helps check official abuse.
To be sure, conservatives and corporations are invoking the First Amendment, and sometimes winning. In Citizens United v. Federal Election Commission, the Roberts court deployed the First Amendment to guarantee that corporations can engage in unlimited campaign spending. A recent study found that the Roberts court has more often protected conservative than liberal speakers.
Justice Elena Kagan herself, dissenting in Janus v. American Federation of State, County and Municipal Employees, accused her conservative colleagues of “weaponizing the First Amendment” when they ruled that public sector unions cannot charge nonmembers “agency fees” because it amounts to compelled speech.
But these developments should not lead liberals or progressives to lose faith in the First Amendment. For starters, the amendment’s core requirement is that the government must remain neutral regarding the content and viewpoint of speech. As a result, a decision protecting conservative speech will equally support liberal speech.
When the Roberts court ruled that the First Amendment prohibited holding the Westboro Baptist Church liable for displaying anti-gay signs outside a military funeral, its rationale would equally 
protect Revolutionary Communist Party demonstrators holding anti-Christian signs outside the Westboro Baptist Church.
Some argue that the First Amendment’s very neutrality is problematic, because in an unequal society, the amendment will favor the haves over the have-nots. We all have a formally equal right to speak, but only George Soros, the Koch brothers and a handful of others can spend hundreds of millions of dollars advancing their preferred candidates or positions.
But this argument proves too much. All rights are more valuable for the rich. The rights to have an abortion, to send your children to private school, to exclude others from your property or to hire your own criminal defense lawyer are all more fully enjoyed by people with resources. Social inequality may be a reason to support progressive taxation or robust equal protection guarantees; it’s not a reason to retreat from free speech principles.
In a more fundamental sense, the First Amendment favors people without power and influence. In a democracy, the rich and those in the majority don’t need constitutional protections; they can generally enact their desires through ordinary political processes. The targets of censorship are typically dissidents, outsiders, the marginalized.
History illustrates the point. The Constitution’s speech protections did not emerge fully formed when the nation was founded. During World War I, for example, the Supreme Court upheld long prison sentences for merely criticizing the war. Over many years, anarchists, communists, labor unions and civil rights activists fought for and earned the speech rights we know and take for granted today.
Nor is the First Amendment outmoded. The need for its protections are as urgent as ever. In just the last year or so, my organization, the American Civil Liberties Union, has invoked the First Amendment to defend high school students disciplined for walking out from school to call for gun control, as well as other students penalized for posting pictures of guns on social media; a student newspaper denied funding after publishing a satire of “safe spaces,” as well as fans of a hip-hop band labeled gang members; Milo Yiannopoulos and the animal rights group People for the Ethical Treatment of Animals, both of whom were denied permission to advertise on the subway by the Washington Metro Authority; and anti-Trump as well as pro-Trump demonstrators. We’ve defended flag desecraters, union organizers, and citizens blocked from their representatives’ Facebook sites for their criticism. And that’s just the beginning.
As even this very partial list shows, government officials continue to be tempted to silence people for their views. Some of our clients are liberal, others conservative, but all have been singled out because they have upset those in power.
Not every First Amendment argument is justified, of course. The A.C.L.U. supported the public sector union in the Janus case, for example, saying that charging workers for services that the union is required to provide to them is not a First Amendment violation, any more than requiring people to pay taxes for government policies they oppose. But even if conservatives sometimes win free speech cases they should lose, now is not the time for anyone to dismiss the First Amendment as a tool of conservatives.
Since Donald Trump’s election in November 2016, Americans have been exercising their First Amendment rights to engage in resistance: demonstrating, calling their representatives, associating with like-minded citizens in defense of core values, shedding light on official abuse through the free press, and expressing themselves on social media.
When one party controls all three branches of the federal government, the checks and balances have to come from the people. It’s on us. And it’s the First Amendment that gives us the tools to act — including the rights to speak, associate, petition the government and enjoy a free press.
The fact that conservatives benefit from the First Amendment is not something to bemoan. It is part of the constitutional bargain. It simply means the First Amendment is operating as it should, neutrally preserving the lifeblood of democracy.
David Cole (@DavidColeACLU) is the national legal director of the American Civil Liberties Union.
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The ACLU itself generally does a good job and provides real value to society. Most of their political groups are dishonest and useless so it’s important to distinguish between the two.
Amen.
The twisted logic of the ACLU trying to convince people that they still care about the First Amendment over the liberal political agenda.
Amen to that also.
In terms of the First Amendment argument, corporations are taxed entities… unions are non-taxed entities. And unions, especially public sector unions, have an interest to see corporations taxed so that the union members can get greater pay and benefits.
Also, unions are still able to influence union membership and union wages from employees that they cover and bargain for by demonstrating service value commensurate with the union dues. This change will force the union bosses to get back to focusing on the welfare of their members instead of the current practice of being a professional political action organization.
My beef isn’t with the rights of public unions to charge, its that public employee unions exist at all.
Your beef is my beef… but I also have a moral issue with employees being forced to pay union dues without representation for the spending of their dues on political campaigns.
The argument of whether corporations are “people” is significantly different than the first amendment rights. I do not believe corporations are “people” and I am deeply skeptical of union messaging. For example the California Nurses would have you believe they want to lower the amount we spend on healthcare. It’s a like the UAW advocating for banning cars, there has to be a “gotcha” hidden in there somewhere.
I don’t see corporations as people, but they are a taxed legal entity and hence should have a representative voice in politics to influence policy in their best interest.
Those that don’t like corporations being able to spend money to influence elections might want to consider getting rid of business taxes and instead implement a national sales tax to replace that revenue.
Unions are not taxed entities. And public sector unions have a clear conflict of interest for being able to influence politics for more government money. Public sector unions corrupt the democratic process. This SCOTUS ruling was a step in the right direction toward eventually eliminating the right for government employees to unionize and/or collectively bargain for compensation.
Bicycles and dogs are also taxed. Where is their vote?
I don’t believe that bicycles and dogs are recognized legal entities.
“Summary:
This Article develops the proposition that non-human animals can possess and exercise legal rights. This proposal is supported by the fact that our legal system already accommodates a number of animal interests within the criminal anti-cruelty laws and civil trust laws.”
https://www.animallaw.info/article/living-property-new-status-animals-within-legal-system
Surprisingly perhaps dogs and bicycles actually exist as opposed to being an abstraction. If you want to invest personhood in abstractions then all the people that don’t exist should vote as well. A -0- person is just as valid as a -1- person if you want to value abstractions the same as physical people.
Also note that unlike dogs, corporations can not be incarcerated so they have less of a vested interest in laws.
True that Corporations cannot be incarcerated for crimes, but neither can bicycles and dogs. And apparently some crooked politicians cannot be incarcerated but they can still vote.
I still come back to corporations being a specific taxed legal entity. And the owners, officers, employees… none of them are in the position of the corporate entity in defending its unique purpose, needs and freedoms to exist and operate. In fact, it would be a legal risk for an owner, officer or employee to represent the corporation as an individual as that would risk piercing the corporate veil and introducing personal liability.
If, for example, the CEO of the corporation and its board of directors sees a risk to the ability of the corporation to operate due to pending or potential legislation, it would be inappropriate for the CEO and/or board members to contribute personal money to political campaigns to be spent on the corporation’s behalf to prevent that legislation.
Likewise, since corporations are legal entities required by law to create and maintain corporate documents of governance that often memorialize operating principals that support the mission and success of the organization, it would seem reasonable that the corporation should be allowed to contribute money to social and political causes in accordance with these operating principles.
And we need to remember that a 501C4 is a corporation that often exists solely to influence social and political causes and outcomes. So how do we discriminate between types of corporations without cutting the heart out of the entire liberal social justice activist infrastructure?
Dogs can and are incarcerated on a regular basis. Go to 140 Tony Diaz Dr C, Woodland, CA 95776 to see for yourself.
” it would be inappropriate for the CEO and/or board members to contribute personal money to political campaigns to be spent on the corporation’s behalf to prevent that legislation.”
Most bizarre statement of the day. Maybe beyond bizarre, sort of like saying “it would be inappropriate for people to donate to political campaigns based on the candidates positions on property taxes” It happens routinely so I’m not sure why you would try to deny it.
“Likewise, since corporations are legal entities required by law to create and maintain corporate documents of governance that often memorialize operating principals that support the mission and success of the organization, it would seem reasonable that the corporation should be allowed to contribute money to social and political causes in accordance with these operating principles.”
You might want to reread this as it makes no sense either. The squirrels in my back yard hide nuts for the winter, this investment should allow them to vote as well.
You are missing the point bigly. Let’s use environmental legislation for example… let’s say is passed it would harm the finances of the business. There is nothing preventing any individual from contributing as an individual to campaign against this legislation… but that would be to support their individual interests, not the corporate interests.
And related to company missions and principles, if there would be legislation or candidates that would change some laws or regulations that would conflict with those principles, then the company should be able to contribute to campaigns to help defend the mission and principles that would be harmed by the legislation and/or candidate. It is possible that the employees of the corporation have a difference of opinion. For example, let’s use the minimum wage hikes happening in liberal cities around the nation. They are not good for the company, but many employees of the company might like them. Not allowing the corporation to contribute to defend against the wage hikes would be taxation without representation. And it would support a democratic tyranny of the majority.
Just curious, do you support unions contributing to political campaigns?
Great example Jeff. “It is possible that the employees of the corporation have a difference of opinion.”
So if there was a law proposed that benefited 95% of the workers at a company and disadvantaged a couple of executives you believe it it right that the CEO spend company money opposing it because the CEO does not like it? I can go all night if you like, you are going to lose because your position is just wrong.
BTW I do not support union political donations though of course they are free to message their members to do something just as the CEO can.
Just curious of your background, because I see some significant gaps in your understanding of corporate governance.
A CEO who is a majority shareholder can, without risk to his/her position, can spend all the corporate money he/she wants to spend on political donations within the boundaries of the law. A CEO of a corporation without majority shares would risk being removed by a board of directors with the majority voting rights if that CEO takes public positions on political issues at odds with the majority voting right board members.
I am a CEO and I have to make decision in the best interest of the corporation that may or may not be in the immediate best interests of my employees, but I would be taking quite a risk to take positions outside the approval of the majority of my board.
And I might even be put in a position where I have to decide to contribute corporate dollars to politics not in my personal interest, but in the best interest of the corporation.
I really don’t think you understand the corporate entity. Maybe we should get together for coffee at some point so I can better understand your perspective.
Good to hear that you are consistent with respect to unions and corporations.
The shareholders, owners, and officers of corporations already have plenty of voice in politics. The entity they own or work for doesn’t need any special status for influencing policy. This is the abomination that was created by Citizens United. Congress clearly needs to overturn that, but that obviously won’t happen for awhile.
Well maybe there should be some legislation to prevent both unions and corporations from contributing to political campaigns. But then what about those 501 C 4 corporations? That would wipe out all the leftist activist money… what would Soros do?
https://www.opensecrets.org/outsidespending/nonprof_elec.php
Thanks for the link. Here’s one for you:
https://www.opensecrets.org/outsidespending/donor_detail.php?cycle=2016&id=U0000000364&type=I&super=N&name=Soros%2C+George
Yes, right behind Mercer and Bloomberg, and not even close to Adelson and Steyer.
I don’t actually care about Soros any more than I care about the Koch brothers. They’re playing by the rules that were written. We need to rewrite the rules.
Soros Open Society Foundation is a PAC that I believe is excluded from the dollars listed in the link you provided.
Yes, and the Koch brothers spent hundreds of millions of dollars in 2016 that isn’t shown on any of those links because of how they did it.
As I said, I think we need to rewrite the laws.
My opinion is that a corporation has no specific rights. The shareholders, officers, and employees all do have rights as individuals.
Yes, Soros is very good at masking his donations.
Yes, the Koch brothers are very good at masking their donations. You guys want to keep this nonsense up all evening? Do you think liberal billioinaires are outspending conservatives? It’s a bipartisan mess that needs to be fixed. Do you agree with that?
Yes. Yugely. Especially since most American billionaires in the US today are liberals.