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Fighting Free Speech at the New York Times

As the leaders of Western Europe continue to surrender their countries to Islam – and to punish those who resist by trying to shut them up – one fact of which we've all been reminded is that Americans are very lucky indeed to have a First Amendment. Across Western Europe, citizens who are worried about Islamization express envy for America's free-speech protections. Meanwhile, American leftists who, unable to answer their opponents' arguments effectively, would prefer to be able to shut them down, tend increasingly to view the First Amendment as a thorn in their side.

Even many members of the Fourth Estate, whom you might expect to be vigorous First Amendment champions, are now taking on what they deride as an excessive attachment to free-speech rights. At the vanguard of this unholy crusade is the New York Times. On June 5, the Times ran an op-ed by Harvard Law professor Noah Feldman, who on several previous occasions has taken to its pages to defend sharia law. This time, Feldman argued against applying the First Amendment to social media on the grounds that it would “make it harder or even impossible for the platforms to limit fake news, online harassment and hate speech.”

The one good argument Feldman has on his side is that Facebook and Twitter are private companies with the right to ban whomever they wish. On the other hand, both of these platforms have become huge parts of the public square, not only in the U.S. but around the world. As for Feldman's reference to “hate speech,” it's a concept that has no proper place in American law and that is, by definition, in the eye of the beholder. On this score, Feldman failed to acknowledge that both firms are notorious for having banned (for example) users posting objective facts about Islam even as they allow terrorist groups to continue to employ their services.

But enough about Feldman. More problematic than his op-ed was an article by Adam Liptak – which ran, note well, as a news story, not an opinion piece – that the increasingly senile Gray Lady published on July 1. The headline, “How Conservatives Weaponized the First Amendment” (on the front page of the Times's website, it read “How Free Speech Is Being Used as a Weapon by Conservatives”; in the print edition, it was “How Free Speech Was Weaponized By Conservatives”), drew on a June 25 comment by Supreme Court Justice Elena Kagan. When the Court, on First Amendment grounds, struck down a California law forcing pro-life “crisis pregnancy centers” to post information on their premises about where to get an abortion, Kagan complained in her dissent that conservatives were “weaponizing the First Amendment.”

Interesting turn of phrase. What it comes down to is the age-old sentiment that my speech should be protected but yours shouldn't. When I say something you don't like, I'm safeguarded by the First Amendment; if you say something I don't like, you're “weaponizing” that amendment. Coming from the likes of Elena Kagan, of course, the use of the word “weaponize” is especially priceless. Kagan is, after all, a perfect example of the kind of judge who, when she is out to justify practices she likes, is gifted at “discovering” in the Constitution rights that the Founders never put there and that nobody ever noticed before. In other words, she's an extremely loose constructionist. But when she sees her ideological opponents actually making use of their very clearly spelled-out First Amendment rights to say things she deplores, Kagan is eager to find some way to pretend that the First Amendment doesn't say what it quite explicitly says.

Disturbing stuff. But Liptak found – surprise! – several law professors who were more than willing to back up Kagan. Louis Michael Seidman, Georgetown: “When I was younger, I had more of the standard liberal view of civil liberties....And I’ve gradually changed my mind about it. What I have come to see is that it’s a mistake to think of free speech as an effective means to accomplish a more just society.” Frederick Schauer, University of Virginia: “Because so many free-speech claims of the 1950s and 1960s involved anti-obscenity claims, or civil rights and anti-Vietnam War protests, it was easy for the left to...believe that speech in general was harmless....But the claim that speech was harmless or causally inert was never true.”

Liptak even managed to dig up a quote from University of Michigan law professor Catharine A. MacKinnon, who decades ago made headlines with her attempt to shut down the porn industry on radical feminist grounds. “Once a defense of the powerless,” MacKinnon wrote, “the First Amendment over the last hundred years has mainly become a weapon of the powerful....Legally, what was...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.”

MacKinnon speaks of the “powerless” and the “powerful,” but the difference between, say, socialists (whom she puts in the former category) and Nazis (whom she puts in the latter) isn't that socialists are powerless and Nazis powerful; on the contrary, in the Western world today, the opposite is the case. No, as MacKinnon's weapon vs. shield imagery points up, her attitude – and that of Liptak's other left-wing First Amendment skeptics – isn't that of people who see themselves as living in a free society and as participants, therefore, in free, open, and mutually respectful debate with ideological opponents. It's that of people who, despite their elite law-school positions, see themselves as engaged on the side of the downtrodden in a revolution against oppression.

One weapon in this revolution, as we well know, is an inordinate emphasis on the notion that words can cause not only offense but actual pain. “Many on the left,” writes Liptak, “have traded an absolutist commitment to free speech for one sensitive to the harms it can inflict.” This brings us to the heart of the matter. Today, identity-group membership trumps all else. Millennials have been taught to see themselves, above all, as group members. Some groups are victims, others victimizers. Above all, the whole thing is about power – and so, therefore, is speech. In the view of people like Seidman, Schauer, and MacKinnon, victim-group members use their voices to speak truth to power, and such speech acts deserve total protection. Members of victimizing groups, however, can use their voices to reinforce oppression and hurt feelings. That is evil – and, in the view of the social and cultural establishment (and all too many legal scholars), should not be allowed. To think otherwise is to have what Liptak describes as “an absolutist commitment to free speech.”

Think about that term. To call a free-speech champion an “absolutist” – “free-speech fundamentalist” is also popular – is highly useful for moral-equivalency purposes. Do you insist on your right to speak up against Islamic “fundamentalists” or “absolutists,” even if you make some Muslims feel bad? Well, that makes you a free-speech fundamentalist or absolutist – terms that imply a lack of prudence, restraint, and reasonableness. Thus do leftists neatly liken a determination to massacre infidels in the name of your faith to a readiness to defend to the death your ideological adversaries' right to speak their minds.

Briefly put, what Liptak served up in his 2400-word article was a truckload of mischievous leftist rhetoric intended to justify the silencing of opponents. On this topic, the bottom line is exceedingly clear and simple: free speech is at the root of all other freedoms. To try to impose blanket limits on it, or to rule that some people should have broader free-speech rights than others, is to take the first and crucial step toward the utter destruction of free society. Anyone who doubts this fact need only look at what's happening on the other side of the Atlantic. Alas, too many of the enemies of free speech in America view the growing tendency in Western Europe to punish certain kinds of expression not with concern but with envy.