The New York Times recently published an article titled, “How Conservatives Weaponized the First Amendment.” The piece inspired a robust national conversation, reflecting as it did a growing concern among many progressives that the First Amendment is being used to inflict harm on vulnerable Americans. Yet, while the article made many valid points, it also conflated a wide diversity of cases and overlooked some obvious reasons for why conservatives are bringing — and winning — more First Amendment challenges.
The Times’ article, published June 30, came on the heels of two Supreme Court rulings. In one, National Institute of Family and Life Advocates v. Becerra, the five conservative justices on the court struck down a California law that required religious crisis pregnancy centers to provide patients with information on abortion. The second case, Janus v. American Federation of State, County and Municipal Employees, significantly weakened the power of labor unions. The same five justices held that, under the First Amendment, non-consenting employees couldn’t be forced to pay money to a public-sector union.
According to one constitutional lawyer, the Supreme Court’s application of the First Amendment today is the same as the liberal position on free speech from the 1960s. In both cases, the aim was to limit government regulation of speech. But a study commissioned by the Times found that the court is more likely to protect conservative speech than liberal speech. The law hasn’t changed, but the winners have. And that shift has liberals worried.
For example, critics of Becerra and Janus think the court misused First Amendment free speech protections to achieve political ends. This, in their view, is not what free speech was meant to protect — as Justice Elena Kagan wrote in her Janus dissent: “The First Amendment was … meant not to undermine but to protect democratic governance.” Now more attuned to the ways powerful Americans can use speech to inflict harm on the powerless, progressives are questioning their past “absolutist commitment to free speech.” Once thought as indispensable to the creation of a just society, free speech is now used to amplify injustice.
The concern, in some contexts, is entirely valid. The “weaponization” of the First Amendment raises valid questions about corporate power and money. For example, in Citizens United v. Federal Election Commission, the five conservative justices held that the First Amendment protects unlimited campaign spending by corporations. It also makes sense to look more critically at the application of free speech principles to economic and regulatory policy. But it is a mistake to conflate these types of cases with, for example, cases about religious speech (Becerra, Masterpiece Cakeshop) cases, where the definition of “powerful” and “powerless” are not, or at least not entirely, defined by comparative wealth or political clout but instead by changing cultural attitudes.
The Times’s study found that, in recent years, conservatives are bringing more free speech challenges and winning more of their speech cases. This, to the Times, reflects a weaponization of free speech. But could there be another explanation for why there are more conservative claims and more conservative wins?
That there are more challenges by the right does not necessarily mean free speech is being weaponized — it might instead mean that conservatives have more cause to worry because the government is restricting more conservative speech. This is certainly how conservatives see cases like Hobby Lobby and the non-profit challenges against the Affordable Care Act’s mandate that religious organizations pay for their employees’ birth control. In their view, this was an unprecedented incursion on religious rights, and their legal challenges were the only way they could stave off the incursion.
Viewed in this way, the cases against the contraception mandate were not about the powerful weaponizing the First Amendment against the powerless — instead, it was a vulnerable religious community resisting an overbearing government. Some might disagree with this characterization, but in the end, it really comes down to how we’re defining power and who has it.
There’s another, less complex reason why conservatives have prevailed in their recent free speech challenges — the government’s failure to understand religious liberty jurisprudence when it enacts and then defends its laws. In religious liberty cases brought by conservatives, conservatives have prevailed because they understand one part of the legal standard much better than does the government: the least restrictive means standard in the strict scrutiny test. That standard requires the government to find the narrowest way of achieving it stated interest. It’s an important standard, because it prevents the government from enacting laws that overbroadly limit our rights in the name of some lofty goal. In the contraception cases, for example, the government said that its interest was women’s equality and broader access to birth control. But it lost its cases because it failed to show why it didn’t use any one of a number of narrower ways of achieving this goal.
That’s what the conservative justices are saying across many of these free speech cases that there are better ways to strike a balance and protect both First Amendment rights and the government’s stated interest. Even in Becerra, Justice Samuel Alito noted, “whatever unwanted burden is imposed by the representation of nonmembers in disciplinary matters can be eliminated ‘through means significantly less restrictive of associational freedoms’ than the imposition of agency fees.”
The culture war is undoubtedly real, but not everything can be explained in those terms, nor is every win by a conservative a win for the powerful against the powerless. Some of it is just about demanding more precision and sensitivity from the government when it attempts to regulate our fundamental rights. And that can only be good for us.
Asma T. Uddin is senior scholar at the Religious Freedom Center of the Freedom Forum Institute. Her email address is: [email protected].