Battle Being Waged Over Free Speech

September 8, 2020 by Kate Michael
Battle Being Waged Over Free Speech
Statue outside the U.S. Supreme Court. (Photo by Dan McCue)

WASHINGTON — According to the American Conservation Society, conservatives are using the First Amendment to challenge progressive legislation. They assert that the Free Speech Clause is being used by corporate and right-wing interests to undermine progressive efforts in areas such as campaign finance reform, reproductive rights, consumer protection, and labor. Progressives refer to this as weaponizing the First Amendment. 

“The phrase comes from a dissenting opinion from Justice Elena Kagan in 2018,” explained Dean Erwin Chemerinsky, speaking at a virtual conference of legal scholars convened by ACS. “This is not about the regulation of free speech in the usual sense,” he said, but rather refers to “using the First Amendment to challenge progressive legislation.”

Since 2001, it’s been a “general deregulatory festival at the Supreme Court,” according to Chemerinsky, who says that conservative efforts have taken a three-tiered strategy of unification, or removing the barrier between different types of speech; intensification; and expansion, or widening the scope of what is considered speech. Chemerinsky says this trifecta has made it harder for the government to do its job of ensuring a regulated marketplace.

“This idea that there is some sort of nefarious plot… to undermine progressive legislation, I think that is a crazy conspiracy theory,” said Larry Alexander, professor at USD School of Law and member of the Federalist Society, who took a contrarian approach to the other panelists’ views. 


“To say the rights bestowed to Americans within the Constitution face grave danger, as seen on this event flyer… I find that risible, verging on hysterical,” said Alexander.

“No one is saying it’s a nefarious plot, but what we do have is a court that’s pro-business at the expense of labor, and employees. At the expense of consumers,” said Chemerinsky. 


He offered Citizens United v. Federal Election Commission as an example of a Supreme Court case in which the free speech clause was invoked in campaign financing. The Court reversed precedent and ruled the clause prohibited the government from restricting independent expenditures for political communications by corporations, including non-profit corporations, labor unions, and other associations. Moderate conservative Justice O’Connor had recently been replaced by the more conservative Justice Alito when this case was decided. 

“It’s wrong to equate spending in an election campaign with speech,” said Chemerinsky, who disagrees with giving corporations First Amendment rights. “This is not regulation of speech as we normally would use the word… Spending money is a form of conduct. Corporations shouldn’t get free speech; corporations don’t have autonomy.”

Alexander disagreed, believing that it is valid to equate campaign spending with speech “when you spend money to purchase speech, like buying an ad in the New York Times.” He specified that in the Citizens United case both corporations and unions were given the same First Amendment rights and stated it is unions who outspend corporations in campaign contributions.

Panelists pointed to the decisions in NIFLA v. Becerra (reproductive rights), Sorrell v. IMS Health (consumer protection), and Janus v. AFSCME (labor) to further illustrate how, as Ted Mermin, interim executive director for the Center for Consumer Law and Economic Justice put it, “free speech is intersecting with commercial speech… toward the deregulation of business.”

“It’s all about the deregulation agenda,” Mermin said, as panelists touched on the idea that the Free Speech Clause could have significant implications in other legislative areas.


“The rhetoric is overheated,” Alexander said, arguing that it is wrong to identify Supreme Court justices as “corporate right-wing tools.” He also stressed that he “prefer[s] judges not in the role of platonic guardians.”

But the progressive members of the panel argued, “Ideology is driving this.” Chemerinsky said, “It’s not a coincidence that each Supreme Court case cited was a 5-4 decision.”

A+
a-

In The News

Health

Voting

Shying From Trump, Ex-Maine Gov. Paul LePage Seeks Job Back

YARMOUTH, Maine (AP) — When then-Maine Gov. Paul LePage endorsed Donald Trump in 2016, he credited himself as a prototype... Read More

YARMOUTH, Maine (AP) — When then-Maine Gov. Paul LePage endorsed Donald Trump in 2016, he credited himself as a prototype for the insurgent presidential candidate. "I was Donald Trump before Donald Trump became popular, so I think I should support him since we are one of... Read More

GOP Attacks Georgia's Abrams on Voting as Judge Rejects Suit

ATLANTA (AP) — When Democrat Stacey Abrams narrowly lost the Georgia governor's race to Republican Brian Kemp four years ago,... Read More

ATLANTA (AP) — When Democrat Stacey Abrams narrowly lost the Georgia governor's race to Republican Brian Kemp four years ago, she didn't go quietly. She ended her campaign with a nonconcession that acknowledged she wouldn't be governor, while spotlighting her claims that Kemp had used his... Read More

October 1, 2022
by Dan McCue
Election Uncertainty Abounds as Florida Cleans Up From Hurricane Ian’s Fury

TALLAHASSEE — Hurricane Ian’s march through Florida and the Carribean left at least 35 people dead in the Sunshine State,... Read More

TALLAHASSEE — Hurricane Ian’s march through Florida and the Carribean left at least 35 people dead in the Sunshine State, along with another three in Cuba, and caused anywhere from $66 billion to $75 billion in damage, depending on the estimate. But as the cleanup and... Read More

September 30, 2022
by Dan McCue
Garland Sets New Rules for DOJ’s Use of State Secrets Privilege

WASHINGTON — Attorney General Merrick Garland on Friday imposed a new set of rules Justice Department officials will have to... Read More

WASHINGTON — Attorney General Merrick Garland on Friday imposed a new set of rules Justice Department officials will have to follow to invoke the state secrets privilege in litigation in the name of protecting national security. In a memo sent to the heads of all DOJ... Read More

September 30, 2022
by Tom Ramstack
Biden’s Student Loan Rules Revised While States Sue to Stop the Debt Relief

WASHINGTON — The Biden administration changed its rules on who qualifies for student loan forgiveness Thursday as seven states filed... Read More

WASHINGTON — The Biden administration changed its rules on who qualifies for student loan forgiveness Thursday as seven states filed lawsuits to block the plan that would wipe away $10,000 of debt for most borrowers. The states said in their lawsuit the Biden administration's student debt... Read More

September 30, 2022
by Dan McCue
Detroit-Based Firm Increases Ownership Stake in Millennium Pipeline

DETROIT — DT Midstream, an owner, operator and developer of natural gas interstate and intrastate pipelines, announced Thursday that it... Read More

DETROIT — DT Midstream, an owner, operator and developer of natural gas interstate and intrastate pipelines, announced Thursday that it is acquiring an additional 26.25% ownership interest in the Millennium Pipeline. The company said the $552 million transaction will be financed with cash on hand and... Read More

News From The Well
scroll top