First Amendment Coalition Not What It Used To Be

For the most part, domestic criticism of President Obama’s remarks at the United Nations yesterday faulted him for an insufficiently categorical defense of freedom of expression, or at least one that omitted any sympathy for people offended by moronic anti-Islamic videos.

But at Slate Eric Posner offers some uncomfortable reminders of the history of our own country’s commitment to freedom of expression, and of the potentially unstable coalition that supports it today:

The First Amendment earned its sacred status only in the 1960s, and then only among liberals and the left, who cheered when the courts ruled that government could not suppress the speech of dissenters, critics, scandalous artistic types, and even pornographers. Conservatives objected that these rulings helped America’s enemies while undermining public order and morality at home, but their complaints fell on deaf ears.

A totem that is sacred to one religion can become an object of devotion in another, even as the two theologies vest it with different meanings. That is what happened with the First Amendment. In the last few decades, conservatives have discovered in its uncompromising text— “Congress shall make no law … abridging the freedom of speech”—support for their own causes. These include unregulated campaign speech, unregulated commercial speech, and limited government. Most of all, conservatives have invoked the First Amendment to oppose efforts to make everyone, in universities and elsewhere, speak “civilly” about women and minorities.

Bingo. I’m not saying conservatives (this side of Pam Geller) necessarily identify with the specific slurs against Islam contained in Innocence of Muslims, but there is zero question there’s a the-enemy-of-my-enemy-deserves-constitutional-protection dynamic going on, in addition to the irresistible opportunity to claim Barack Obama is soft on Muslims.

We may be at a rare moment in U.S. history when the sort of First Amendment absolutism associated with Justice Hugo Black has majority support among elites across the political spectrum, but that doesn’t mean it came down from Mount Sinai on stone tablets. And it’s also useful to distinguish the legal and constitutional questions from Obama’s plausible argument for the futility of censorship in the age of social media, and for that matter, from the stubborn question of what sort of insecurities lead worshippers of an omnipotent God to fear sacrilege and blasphemy so intensely. But Posner is raising some legitimate questions, not only about the loneliness of the United States in opposing expressions clearly intended to incite violence and even religious war, but about the relatively recent and less-than-sturdy coalition marching under the banner of freedom of speech.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.