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LGBT Activists Arm For Further War On Free Speech

LGBT activists plan to blanket the country with laws that, behind the fig leaf of ‘anti-discrimination,’ will give the state the power to police free speech and behaviors.

Kirsten Powers’ new book, “The Silencing,” nails it by showing just how bad things have gotten for free speech in America. It’s going to get a whole lot worse, and I’ll explain why.

Powers has dubbed today’s intolerant purveyors of leftist causes the “the illiberal left” because, as a liberal herself, she sees them as anything but liberal about allowing a voice to those who don’t toe their rigid line. Her book catalogues and analyzes the dehumanization and demonization techniques the illiberal Left applies towards anyone who dares to veer from their rigid narratives. Their sacred cows include abortion, climate change, same-sex marriage, and second-wave feminism. Dissenters are systematically smeared and destroyed.

There is no small irony in the fact that the crazed reaction from the illiberal Left to Powers’ book demonstrates the very behaviors and attitudes she critiques. Social media immediately erupted with a hate-fest and swarmed Powers on Twitter, in exactly the manner described in her book. It’s yet another exercise in promoting groupthink and suppressing freedom of expression by those who want to tell us all what we must think.

But I would add that most of this is coming straight out of the Left’s holy of holies: the LGBT lobby (whose agenda Powers happens to support.) Because next up on the LGBT hit parade is the literal silencing of America—with the force of the federal government behind it.

Political Censorship in the LGBT Agenda

The American Unity Fund is a heavily funded new super-PAC looking to blanket the country with LGBT anti-discrimination laws. In effect, those laws aim to wipe out any alternative voice to the LGBT agenda. The effort is being spearheaded by billionaire hedge fund manager Paul Singer and another wealthy hedge fund manager, Tim Gill. Gill’s operations—the Gill Foundation and Gill Action—have been dedicated to “nonpartisan” gains for the LGBT lobby on the legislative and judicial fronts.

But with an expected federal win for gay marriage from the Supreme Court, the LGBT movement is poised to shift its focus to policing speech in the workplace, schools, businesses, and public squares across America.

Of course, they can’t call their campaign “Three Cheers for Thought Policing in America” or “Gag Orders for All Americans.” So, instead, they’ve adopted the Orwellian slogan “Freedom for All Americans.” The intent of the slogan and campaign is to stir up the idea that we need a lot more anti-discrimination laws in America because there is so much bigotry and hate throughout this land of ours.

The ultimate goal of the campaign, according to The New York Times, is passage of a national LGBT anti-discrimination law. In the meantime, Singer and Gill, et al. will be pushing for ever more and ever stricter “anti-discrimination” and “anti-hate” laws in state legislatures.

The “Freedom for All Americans” rollout has been accompanied by other articles that champion the case for more anti-discrimination laws in the wake of an expected Supreme Court decision that would, for all practical purposes, federally ban recognition of marriage as a male-female institution.

Republicans and Conservatives are the Prime Targets

Since the Democrats, academia, Hollywood, and the media are already arms of the LGBT lobby, the basic thrust of the American Unity Fund’s “Freedom for All Americans” campaign/slogan/meme is to persuade those darned Republicans and pesky conservatives to set aside their principles and get with the program.

On the surface, this “Freedom for All” slogan sounds innocuous, almost like motherhood (to borrow a quaint notion). Who would ever support discrimination? But this is not your grandfather’s (another quaint notion) Civil Rights Act. Because that old notion of civil rights was back in the days when the First Amendment remained intact for all to enjoy.

The LGBT lobby has always known that it needs to get Republicans, conservatives, and evangelicals on board—through their leaders—because they still command a wide swath of America, and, worse, some people might not be intimidated enough to refrain from saying things not in line with the lobby’s agenda.

Hence, there are infiltration efforts like “Log Cabin Republicans,” whose sole purpose has been to promote the LGBT lobby while claiming to be conservative. Hence also, there have been unprecedented late night arm-twisting and back room deals with Democrat governors Andrew Cuomo in New York (2011) and Martin O’Malley in Maryland (2012) to get three Republican legislators each in their respective legislatures to cause—voila!—“bipartisan” passage of same-sex marriage. That was just the beginning. The LGBT lobby is now poised to go for the jugular.

Luring Dissenters, Then Gagging Them

The LGBT lobby has ways of making Americans talk. Or not talk. It has already been a significant catalyst for the silencing that is blanketing America.

The coordinated strategy to coerce public opinion compliance with the LGBT agenda probably has its seeds in a manifesto-style 1989 book, “After the Ball,” by Marshall Kirk and Hunter Madsen. Of course, there’s a lot of social psychology behind it, like coaxing out availability cascades and spirals of silence. (Republicans are scandalously tuned out to these methods of persuasion. In fact, nary a single conservative social psychologist exists.)

Suffice it to say that the LGBT movement and its narrative have all of the push-and-pull ingredients for a bandwagon effect. These include the promise of sexual freedom, a libertarian veneer of promoting autonomy, the well-coordinated public smearing of dissenters, and the huge potential for emotional blackmail of LGBT family and friends. Look no further than the ninth edition of GLAAD’s media “guidebook” to understand media obedience to regulation of speech and press demanded by the LGBT lobby.

Paving a Path to Coercive Thought Reform

That, in very abbreviated form, is the history. Where is the “Freedom for All Americans” effort going?

One of the coordinators of the project, hedge fund manager Dan Loeb, told The New York Times that pushing for these laws is “critical in order to change understanding against gays.” In other words, the laws themselves are supposed to lead to a change in the public attitudes. Can laws really do this?

Notwithstanding the awkward construction, Loeb’s statement is loaded. To claim that more anti-discrimination laws are “critical in order to change understanding against gays” basically reveals that the professed purpose of these laws is coercive thought reform.

Laws intended to change how individuals think—about anything—require enforced silencing. If the “Freedom for All Americans” meme is about freedom (which it’s not), then it’s only about negative freedom. That is, freedom from “discrimination.” Freedom from “hate.” Which basically gives carte blanche to those holding power (ultimately, the state) to define and cherry pick whatever “discrimination” and “hate” may mean before granting whatever due process is left over for the accused.

So laws of this sort, hiding under the fig leaf of “anti-discrimination,” will give the state the power to police speech and behaviors.

Paving a Path to Coercive Collectivism

Coercive “unity” of the sort proposed by Singer, Gill, et al. in their “American Unity” means a collectivist type of unity that is not voluntary, but enforced in law. The actual enforcement mechanism for anti-discrimination measures might still be up in the air, but likely involves the creation of a host of new “human rights” commissions—basically hate tribunals set up on the local, state, and federal levels. This has already been done in Canada.

Powers has written a whole book that shows how our free-speech rights are being restricted. We already see the policing of private, personal conversations in places like Marquette University, where staff have been trained to inform authorities “right away” if they hear of any employee who does not support the LGBT agenda, even if it occurs in an overheard private conversation.

But if you continue to harbor doubts about what’s in store, let’s take a virtual trip up Canada way and see how it’s been working so far up there.

Canada’s Hate Tribunals Likely Reflect America’s Future

Canada legalized same-sex marriage in 2005. Once that was a done deal, “human rights commissions” were quickly set up. They operate municipally, provincially, and federally to surveil individuals and businesses for compliance. This is likely the sort of thing Singer, Gill, and their companions have in mind for the United States.

Canadian Dawn Stefanowicz recently published an article in Public Discourse: “A Warning from Canada: Same Sex Marriage Erodes Fundamental Rights.” She describes the utter surveillance society that is entrenched up there. It’s not just the wedding business that cannot legally be served by any conscientious objectors to participation in LGBT ceremonies. Every type of business is subject to the behavior modification that these laws push for.

Same-sex marriage also put Canada on the path to legally separate children from their biological parents across the board. So the silencing goes beyond public speech. Stefanowicz explains:

“When same-sex marriage was legalized in Canada in 2005, parenting was immediately redefined. Canada’s gay marriage law, Bill C-38, included a provision to erase the term ‘natural parent’ and replace it across the board with gender-neutral ‘legal parent’ in federal law. Now all children only have ‘legal parents,’ as defined by the state. . . it is considered discriminatory to say that marriage is between a man and a woman or that every child should know and be raised by his or her biological married parents. It is not just politically incorrect in Canada to say so; you can be saddled with tens of thousands of dollars in legal fees, fined, and forced to take sensitivity training.”

Such anti-discrimination laws serve to cultivate surveillance societies. And they are doing so in Canada:

“Anyone who is offended by something you have said or written can make a complaint to the Human Rights Commissions and Tribunals. In Canada, these organizations police speech, penalizing citizens for any expression deemed in opposition to particular sexual behaviors or protected groups identified under ‘sexual orientation.’ It takes only one complaint against a person to be brought before the tribunal, costing the defendant tens of thousands of dollars in legal fees. The commissions have the power to enter private residences and remove all items pertinent to their investigations, checking for hate speech.”

Stefanowicz goes on to explain how Canada’s bureaucracy is now set up to meddle freely in children’s relationships with their parents and to silence teachers in their private lives, all in the name of anti-discrimination. In fact, the pall is cast even in church in Canada, since informants are free to report anything they deem “hate speech” that comes from the pulpit or even congregants. So, according to Stefanowicz, “Most faith communities have become ‘politically correct’ to avoid fines and loss of charitable status.”

In the end, per Stefanowicz:

“Americans need to prepare for the same sort of surveillance-society in America if the Supreme Court rules to ban marriage as a male-female institution. It means that no matter what you believe, the government will be free to regulate your speech, your writing, your associations, and whether or not you may express your conscience. Americans also need to understand that the endgame for some in the LGBT rights movement involves centralized state power—and the end of First Amendment freedoms.”

The Brewing Storm

A few people woke up to the authoritarian nature and intent of the LGBT lobby after Mozilla CEO and Javascript inventor Brendan Eich was deposed last year for his thought crime: supporting marriage as the union of a man and a woman and not recanting.

Since the Eich episode, we’ve seen a virtual Kristallnacht campaign on wedding business owners who don’t get with the program. An amicus curiae brief to the Supreme Court that lists hundreds of big companies that promote gay marriage showcases itself like a monolithic battering ram aimed at all other businesses.

All of this should serve as a dead giveaway that the same-sex marriage meme is not about marriage. It’s not about equality. It’s not about civil rights. It’s about something else, something that involves rigid conformity. And we’re not supposed to talk about it.

Free Speech Is a Use-it-Or-Lose-It Proposition

Assuming the Supreme Court signs on to the same-sex marriage meme come June, we can expect to see a noose tightening around both public and private speech, including spontaneous conversation, in America. The ultimate effect of the “Freedom for All Americans” campaign will be to criminalize the expression of conservative as well as traditional religious thought on issues of marriage and family. In doing so, it will further stunt independent thought or debate in the wider political context.

Sadly, the LGBT lobby has served as a prime catalyst for mindless smearing. Charges of “homophobia” and “transphobia” in identity politics easily give way to other seemingly unrelated phobias diagnosed by the PC crowd, including poverty phobia and “Islamophobia.”

So we shouldn’t be surprised when folks like CNN host Chris Cuomo proclaim that “hate speech” should not be protected by the First Amendment. And the spectacle of the Constitution Center in Philadelphia hosting a “debate” on the state of free speech in America shouldn’t surprise us, either.

There’s so much to unpack here, but if pressed to dissect this vat of worms, I’d say that the Orwellian “Freedom for All Americans” meme boils down to the ancient urge to centralize power. That always begins with controlling people, which, in turn, requires the control of human relationships. To control relationships, central planners need to divide and conquer people by restricting their ability to communicate with one another.

The bottom line is that free speech is a use it or lose it proposition. That means speak now, or forever hold your peace.

Source:  The Federalist

Jeb Bush Defends Christianity And Religious Freedom. Good For Him.

Jeb Bush did something that only a few years ago may have seemed boring and unnecessary. But in the spring of 2015, it sounded downright bold. At a commencement address at Liberty University in Virginia on Saturday, he defended Christianity as good.  Religious Freedom is worth fighting for.

More than three out of every four Americans claims Christianity as his or her religion. Unlike Christians in many other countries, Christians in the United States aren’t being told to convert or die. Their biggest obstacle to attending church on Sundays tends to be brunch and more sleep. Does the faith really need to be defended?

In a world where Christians are routinely dismissed by a hostile media as bigoted, hateful and stupid, and where regular atrocities committed by Islamist extremists can’t be condemned without sophomoric references to medieval actions of Christians and high horses, it doesn’t hurt.

The context of Bush’s speech is key. He was addressing Christian graduates of a Christian university. It’s a different message than you would hear him give at a secular university. Actually, who are we kidding? Secular universities today wouldn’t tolerate a speech from anyone to the right of Barack Obama. But you know what I mean. After encouraging the students in their vocation as followers of Jesus, Bush said “there is no more powerful or liberating influence on this earth than the Christian conscience in action.” He went on:

“How strange, in our own time, to hear Christianity spoken of as some sort of backward and oppressive force. Outside these seven thousand acres of shared conviction, it’s a depressing fact that when some people think of Christianity and of Judeo-Christian values, they think of something static, narrow, and outdated. We can take this as unfair criticism, as it typically is, or we can take it as further challenge to show in our lives the most dynamic, inclusive, and joyful message that ever came into the world.

“These are the days,” as Chesterton remarked, “in which Christians are expected to praise every faith but their own.” He never accepted that limitation, and neither should we, least of all in reply to criticism. One of the great things about this faith of ours is its daring, untamed quality, which is underrated.”

He noted that loving one’s neighbors is easy but that Christianity’s call to love our enemies is another thing entirely. (Twitter would implode if this were followed.) He said he could not think of any more subversive moral idea in the world Jesus’ that “the last shall be first, and the first last.”

Bush went on to discuss persecuted Christians, ancient martyrs and those dying for the faith today.

“No place where the message reaches, no heart that it touches, is ever the same again. And across our own civilization, what a radically different story history would tell without it. Consider a whole alternative universe of power without restraint, conflict without reconciliation, oppression without deliverance, corruption without reformation, tragedy without renewal, achievement without grace, and it’s all just a glimpse of human experience without the Christian influence.

“No law in the world,” said Martin Luther King, “could have produced such unalloyed compassion, such genuine love, such thorough altruism.” The Christian faith, as Dr. King proclaimed, “adjourns the assemblies of the hopeless, and brings new light into the dark chambers of pessimism.”

So it is not only untrue, but also a little ungrateful, to dismiss the Christian faith as some obstacle to enlightened thought, some ancient, irrelevant creed wearing out its welcome in the modern world. Whether or not we acknowledge the source, Hebrew Scripture and the New Testament still provide the moral vocabulary we all use in America – and may it always be so.

Try to separate the ideals from the source, as C.S. Lewis observed, and it’s like “a rebellion of the branches against the tree.” Justice, equality, the worth of every life, the dignity of every person, and rights that no authority can take away – these are founding moral ideals in America, and they didn’t come out of nowhere.”

Preach, Brother Jeb! I mean, there’s the pandering way you reach out to voters to encourage them to vote for you, and then there’s this type of instructional message for all those with the ears to hear it. With some nicely turned phrases and firm but charitable assertions, this isn’t merely outreach to evangelicals but a subtle indictment of much of what many Americans have come to believe about religion and public life.

Leading a charge for religious freedom

Bush’s speech then went on to note all the ways that Christians live their faith outside of the sanctuaries where they worship. As the administrative state grows into each and every corner of our lives, it tries to limit religious expression.

More than a month ago, Indiana passed what twenty other states and the federal government have passed — a Religious Freedom Restoration Act (RFRA). Such bills allow religious people to challenge government activities that encroach on their beliefs. They have to show that the government action substantially burdens a religious belief that they sincerely hold. And if they prove all that, it falls to the government to show that the challenged action is justified as the least restrictive means of furthering a compelling governmental interest. Having a RFRA doesn’t mean that you know which side wins, it just sets the terms of the debate.

As we know, a highly orchestrated campaign fought religious freedom on the grounds that it’s anti-gay. The media joined with major corporations in characterizing religious freedom — one of the most foundational principles of our country — as bigotry. And they won. Within a few short days, Indiana decided to back down on religious freedom or risk losing business.

 But what seemed at first blush to be a tremendous victory for those who oppose religious freedom may not be a long-term victory. At the very least, the hysterical media campaign made average Americans realize that religious freedom is under serious threat. While people in newsrooms, corporate board rooms, and activist centers might not realize it, what happened in Indiana was deeply alarming to those Americans who do exercise religious freedom.

“There are consequences when you don’t genuflect to the latest secular dogmas. And those dogmas can be hard to keep up with. So we find officials in a major city demanding that pastors turn over copies of their sermons. Or federal judges mistaking themselves for elected legislators, and imposing restrictions and rights that do not exist in the Constitution. Or an agency dictating to a Catholic charity, the Little Sisters of the Poor, what has to go in their health plan – and never mind objections of conscience.

I don’t know about you, but I’m betting that when it comes to doing the right and good thing, the Little Sisters of the Poor know better than the regulators at the Department of Health and Human Services. From the standpoint of religious freedom, you might even say it’s a choice between the Little Sisters and Big Brother – and I’m going with the Sisters.

That case continues, and as usual the present administration is supporting the use of coercive federal power. What should be easy calls, in favor of religious freedom, have instead become an aggressive stance against it. Somebody here is being small-minded and intolerant, and it sure isn’t the nuns, ministers, and laymen and women who ask only to live and practice their faith. Federal authorities are demanding obedience, in complete disregard of religious conscience – and in a free society, the answer is No.”

Much of the media coverage of Bush’s event claimed that he was “courting” or “seeking” the support of evangelical Christians. Bush is Catholic and is not currently polling well with grassroots evangelicals.

Bush has positions on Common Core and immigration that would bother many conservatives even if he weren’t part of a political dynasty. He’s made it clear he won’t be moderating his positions to appease his conservative critics. As such, a strong move on religious liberty could help him win over some evangelicals and others concerned on the topic.

Source:  The Federalist

No, there’s no hate speech exception to the First Amendment

I keep hearing about a supposed “hate speech” exception to the First Amendment, or statements such as, “This isn’t free speech, it’s hate speech,” or “When does free speech stop and hate speech begin?” But there is no hate speech exception to the First Amendment. Hateful ideas (whatever exactly that might mean) are just as protected under the First Amendment as other ideas. One is as free to condemn Islam — or Muslims, or Jews, or blacks, or whites, or illegal aliens, or native-born citizens — as one is to condemn capitalism or Socialism or Democrats or Republicans.To be sure, there are some kinds of speech that are unprotected by the First Amendment. But those narrow exceptions have nothing to do with “hate speech” in any conventionally used sense of the term. For instance, there is an exception for “fighting words” — face-to-face personal insults addressed to a specific person, of the sort that are likely to start an immediate fight. But this exception isn’t limited to racial or religious insults, nor does it cover all racially or religiously offensive statements. Indeed, when the City of St. Paul tried to specifically punish bigoted fighting words, the Supreme Court held that this selective prohibition was unconstitutional (R.A.V. v. City of St. Paul (1992)), even though a broad ban on all fighting words would indeed be permissible. (And, notwithstanding CNN anchor Chris Cuomo’s Tweet that “hate speech is excluded from protection,” and his later claims that by “hate speech” he means “fighting words,” the fighting words exception is not generally labeled a “hate speech” exception, and isn’t coextensive with any established definition of “hate speech” that I know of.)

The same is true of the other narrow exceptions, such as for true threats of illegal conduct or incitement intended to and likely to produce imminent illegal conduct (i.e., illegal conduct in the next few hours or maybe days, as opposed to some illegal conduct some time in the future). Indeed, threatening to kill someone because he’s black (or white), or intentionally inciting someone to a likely and immediate attack on someone because he’s Muslim (or Christian or Jewish), can be made a crime. But this isn’t because it’s “hate speech”; it’s because it’s illegal to make true threats and incite imminent crimes against anyone and for any reason, for instance because they are police officers or capitalists or just someone who is sleeping with the speaker’s ex-girlfriend.

The Supreme Court did, in Beauharnais v. Illinois (1952), uphold a “group libel” law that outlawed statements that expose racial or religious groups to contempt or hatred, unless the speaker could show that the statements were true, and were said with “good motives” and for “justifiable ends.” But this too was treated by the Court as just a special case of a broader First Amendment exception — the one for libel generally. And  Beauharnais is widely understood to no longer be good law, given the Court’s restrictions on the libel exception. See New York Times Co. v. Sullivan (1964) (rejecting the view that libel is categorically unprotected, and holding that the libel exception requires a showing that the libelous accusations be “of and concerning” a particular person); Garrison v. Louisiana (1964) (generally rejecting the view that a defense of truth can be limited to speech that is said for “good motives” and for “justifiable ends”); Philadelphia Newspapers, Inc. v. Hepps (1986) (generally rejecting the view that the burden of proving truth can be placed on the defendant); R.A.V. v. City of St. Paul (1992) (holding that singling bigoted speech is unconstitutional, even when that speech fits within a First Amendment exception); Nuxoll ex rel. Nuxoll v. Indian Prairie Sch. Dist. # 204, 523 F.3d 668, 672 (7th Cir. 2008) (concluding that Beauharnais is no longer good law); Dworkin v. Hustler Magazine Inc., 867 F.2d 1188, 1200 (9th Cir. 1989) (likewise); Am. Booksellers Ass’n, Inc. v. Hudnut, 771 F.2d 323, 331 n.3 (7th Cir. 1985) (likewise); Collin v. Smith, 578 F.2d 1197, 1205 (7th Cir. 1978) (likewise); Tollett v. United States, 485 F.2d 1087, 1094 n.14 (8th Cir. 1973) (likewise); Erwin Chemerinsky, Constitutional Law: Principles and Policies 1043-45 (4th ed. 2011); Laurence Tribe, Constitutional Law, §12-17, at 926; Toni M. Massaro, Equality and Freedom of Expression: The Hate Speech Dilemma, 32 Wm. & Mary L. Rev. 211, 219 (1991); Robert C. Post, Cultural Heterogeneity and Law: Pornography, Blasphemy, and the First Amendment, 76 Calif. L. Rev. 297, 330-31 (1988).

Finally, “hostile environment harassment law” has sometimes been read as applying civil liability — or administrative discipline by universities — to allegedly bigoted speech in workplaces, universities, and places of public accommodation. There is a hot debate on whether those restrictions are indeed constitutional; they have generally been held unconstitutional when applied to universities, but decisions are mixed as to civil liability based on speech that creates hostile environments in workplaces (see the pages linked to at this site for more information on the subject). But even when those restrictions have been upheld, they have been justified precisely on the rationale that they do not criminalize speech (or otherwise punish it) in society at large, but only apply to particular contexts, such as workplaces. None of them represent a “hate speech” exception, nor have they been defined in terms of “hate speech.”

Defining Hate Speech?

For this very reason, “hate speech” also doesn’t have any fixed legal meaning under U.S. law. U.S. law has just never had occasion to define “hate speech” — any more than it has had occasion to define rudeness, evil ideas, unpatriotic speech, or any other kind of speech that people might condemn but that does not constitute a legally relevant category.

Of course, one can certainly argue that First Amendment law should be changed to allow bans on hate speech (whether bigoted speech, blasphemy, blasphemy to which foreigners may respond with attacks on Americans or blasphemy or flag burning or anything else). Perhaps some statements of the “This isn’t free speech, it’s hate speech” variety are deliberate attempts to call for such an exception, though my sense is that they are usually (incorrect) claims that the exception already exists.

I think no such exception should be recognized, but of course, like all questions about what the law ought to be, this is a matter that can be debated. Indeed, people have a First Amendment right to call for speech restrictions, just as they have a First Amendment right to call for gun bans or bans on Islam or government-imposed race discrimination or anything else that current constitutional law forbids. Constitutional law is no more set in stone than any other law.

But those who want to make such arguments should acknowledge that they are calling for a change in First Amendment law, and should explain just what that change would be, so people can thoughtfully evaluate it. Calls for a new First Amendment exception for “hate speech” shouldn’t just rely on the undefined term “hate speech” — they should explain just what viewpoints the government would be allowed to suppress, what viewpoints would remain protected, and how judges, juries, and prosecutors are supposed to distinguish the two. Saying “this isn’t free speech, it’s hate speech” doesn’t, I think, suffice.

Source:  Washington Post.  We have added section headings, information, and/or comments for clarity.

Free Speech For Me, But Not For Thee

Progressives have successfully transformed the First Amendment’s restrictions on government into an instrument of government speech control.  Free speech is not free.  Freedom is not free.

The pilot episode of “The West Wing” features fictional progressive President Josiah Bartlet lecturing caricatured Christian leaders on America’s commitment to freedom of expression—no matter how personally distasteful the expression. The scene portrayed a familiar banality: progressives are the First Amendment’s proud defenders. Left-wing intellectuals populating America’s most elite universities join Hollywood liberals as professed sentinels of free expression. In particular, a trio of Harvard law professors supplies the intellectual bedrock of most current First Amendment understanding.

Larry Tribe, Larry Lessig, and Cass Sunstein oversee this important constitutional debate, not only in academia, but public policy, and even popular culture. The best academic journals publish their writings, they regularly testify before Congress, propose Constitutional amendments, rotate through high-level government positions, and author textbooks. Lessig, through an actor, even cameoed “The West Wing.” The paucity of conservative and libertarian faculty leaves progressive First Amendment dogma substantially unchallenged—particularly on complex applications like campaign finance. This lack of ideological competition begets sloppy, flawed, and sometimes outright erroneous analysis.

The professors’ First Amendment view contravenes Founding-era thinking, Supreme Court doctrine, and current social science. Nevertheless, everywhere except a slim Supreme Court majority, they have successfully transformed a government prohibition tethered to natural rights theory into an instrument of ordinary politics infused with egalitarianism.

The First Amendment Limits Government—Right?  Specifically, Free Speech

Along with four other guarantees, the First Amendment famously states “Congress shall make no law . . . abridging the freedom of speech.” The mandate commands our government—our democracy—to back off citizen speech.

Certainly, the guarantee is not absolute. The Supreme Court has occasionally accepted government meddling where deemed necessary, like immediate incitements to violence, minors in school, prisoners, and public employees. But political speech—what citizens say about government, policy, and candidates—receives an unconditional reprieve. At least that’s what the Roberts Court held in Citizens United v. FEC. “Political speech must prevail against laws that would suppress it, whether by design or inadvertence.”

According to Tribe, however, the Court got it all wrong. The First Amendment isn’t a straightforward limit on government, but a mix of values, including egalitarianism. In his book, “Democracy and the Problem of Free Speech,” Sunstein goes further. The First Amendment should seek the “central constitutional goal of creating a deliberative democracy.” It should ensure “new information and perspectives influence social judgments [and] an appropriate diversity of view.”

Sunstein echoes another Harvard man, the late John Hart Ely and his widely heralded book, “Democracy and Distrust.” To Ely the Constitution principally enables and safeguards politics. Of the First Amendment, he states: “the view that free expression per se, without regard to what it means to the process of government, is our preeminent right has a highly elitist cast.”

The First Amendment Only Protects Speech We Like

But who are the elitists? Tribe displays the elite academy’s hubris by admonishing the Court for interpreting the phrase “Congress shall make no law” to treat “regulation of virtually all forms of speech and all kinds of speakers . . . with the same heavy dose of judicial skepticism.”

As political scientist John Samples explains:

“The First Amendment offers a classic statement of negative liberty: it enjoins the government from abridging individual freedom. It does not ‘empower’ the individual to achieve some good. It does not give the individual the means to speak or to persuade others. It does not direct the government to use speech . . . to some social end. It does not require ‘good speech’ or ‘polite speech’ or ban ‘negative speech.’ ”

At first blush, the professors’ view seems anodyne.

After all, who doesn’t like democracy? Shouldn’t we encourage it? But, practically applied, this puts government, not the people, in charge of what they hear. Even Tribe recognizes this danger: “[I]t would be a mistake to leave judgments about the ‘proper’ distribution of speech to politicians. Arming them with a roving license to level the playing field by silencing or adjusting the volume of disfavored speakers is an invitation to self-serving behavior and, ultimately, tyranny.” But his “slippery slope” concern doesn’t trump his belief that government’s quest for a more egalitarian society should be unhindered by an absolute free-expression guarantee.

The professors’ approach to speech is pure progressivism. Yet they don’t cite Messrs. Roscoe Pound, John Dewey, or Herbert Croley. Instead they augustly wrap their theories in the Founding, especially James Madison. Their favorite reference is Federalist 57: “Who are to be the electors of the Federal Representatives? Not the rich more than the poor; not the learned more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscure and unpropitious fortune.” They further promote egalitarianism by invoking the mid-twentieth-century apportionment cases that conceived the constitutional principle ‘one person one vote.’ According to Tribe, this means in the context of legislative elections, each person must have an equal “voice.”

Handicap the Rich

The professors believe government must prevent the wealthy from having equal political rights. Our capitalist system produces rich people so, to be fair, rich people should enjoy less political freedom.

Equal political rights allow the wealthy to corrupt the system by gratuitously spending on advocacy: candidate contributions, Super PACs, nonprofits. Because politicians depend on this support, they provide access, influence, and, ultimately, policy preferences, while the average citizen gets hosed.

Tribe accuses the Court of ignoring “empirical reality” by sanctioning this conduct. Lessig regales raptured audiences on this social ill with flashy PowerPoint presentations. “This many contributed the maximum amount to candidates, that’s that same number of Americans as named ‘Sheldon’”—a reference to the politically active casino mogul. “This many people contributed to Super PACs, that’s the same number as named ‘Adolf,’” and so on. In fact, says Lessig, politicians can’t even run before paying homage to these funders in the “money primary” that precedes the actual primaries.

But the professors are mistaken about the First Amendment’s history, Supreme Court doctrine, social science, and the Founders’ conception of corruption. And it’s not even close.

The Founders Don’t Support Playing Speech Favorites

The First Amendment was built on distrust of government, not egalitarianism. The ratifiers’ main free-speech concern was the press, which was partisan, active, and organized political campaigning. In Federalist 84, Alexander Hamilton argued a First Amendment was unnecessary: “Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?”

The anti-Federalists, responsible for the Bill of Rights, weren’t buying it: “Such men as Milton, Sidney, Locke, Montesquieu, and Trenchard, have thought it essential to the preservation of liberty against the artful and persevering encroachments of those with whom power is trusted. . . I pay some respect to these opinions and wish that the freedom of the press may be previously secured as a constitutional and unalienable right and not left the precarious care of popular privileges which may or may not influence our new rulers.”

Madison seconded that notion when he introduced the First Amendment in Congress: “the people shall not be abridged of their right to speak, write or to publish their sentiments and the freedom of the press, as one of the great bulwarks of liberty shall be inviolable.” The Founders weren’t concerned with rich patrons financing press operations or some pamphleteer drowning out the rest by flooding the streets with ten times more pamphlets. Popular government is what kept them up at night.

And the Supreme Court, even back in the 1970s, wasn’t equating the apportionment cases (equality of votes) with equality of voices. As the first modern campaign-finance case, Buckley v. Valeo stated: “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” The belief the First Amendment owed obeisance to the “distorting effects” of political money enjoyed brief tolerability in two cases from 1990 and 2003. The Court overruled this outlier sentiment in Citizens United.

Research Says the Rich Don’t Buy Elections

The corruption arguments fare no better. Campaign spending matters, of course, but the notion the rich simply buy policy outcomes with campaign contributions or Super PAC funding is fanciful. As a well-received Ohio State study last year explained:

“There is not one clear and obvious causal mechanism between the campaign funding inputs and legislative outputs – the mechanisms are varied and they change over time . . . It is often said that money in politics is like water – restrict its flow in one place and it will find another outlet . . . if campaign money is a flowing river, traversing over constraints . . . it is only one part of a complex ecosystem of power, influence, and personal relationships that connect electoral and legislative politics.”

The American Political Science Association in 2013 agreed: “Most research suggests that there is a weak connection between campaign spending and election outcomes or between sources of campaign funding and roll-call–voting behavior.” Political scientist Seth Masket asserts, “To some extent, the money gives [the rich] access to politicians, which isn’t nothing. But politicians are wary of boldly adopting a wealthy donor’s views . . . The super wealthy are certainly paying a lot of money into the political system these days, but it’s far from clear what they’re getting out of it.”

Rick Hasen, a leading Progressive campaign finance academic, concurs: “In the end, campaign financing and public corruption are separate problems demanding separate solutions . . . The amount of public corruption then does not seem correlated with the basic campaign finance rules.” Two books dissected two successful, hard-fought policy victories, the elimination of the estate tax in 2005 and Toxic Asset Relief Program in 2008. Both concluded that campaign contributions played bit roles.

Bob Bauer, a leading Democrat lawyer, whose eye for empirical reality frequently puts him at loggerheads with reformers, put it thusly: “The challenge for Cass Sunstein and others is to explain how this case [about corruption] can be put forward with evidence that matches up to the theory.” In the congenial world of academic disputes, that is tantamount to a severe rebuke.

The Average Elite Reflects the Average American

Even the Gilens and Page study Lessig and others have cited ad nauseam is much more nuanced than depicted. The study concludes “economic elites” are “policy winners,” but quickly adds: “It turns out, in fact, that the preferences of average citizens are positively and fairly highly correlated, across issues, with the preferences of economic elites . . . Rather often, average citizens and affluent citizens . . . want the same things from government.” Thus average citizens act as free riders, receiving policy preferences without exertion. And Harvard law professors aren’t keen to see average citizens prevail where their preferences do diverge, for instance, on trade restrictions, abortion, and school prayer. (To these could be added gay marriage and immigration, which weren’t prominent when the study data stopped in 2002.)

The founding generation did worry about corruption; however, their fears centered on self-dealing majorities. They saw unconstrained exigencies of “popular government” as an arbitrary threat to the private sphere. Thus Madison quotes Thomas Jefferson in Federalist 48: “One hundred and seventy-three despots would surely be as oppressive as one . . . An elective despotism was not the government we fought for.” In Federalist 45, he assures the populace the new federal government’s powers would be “few and defined.” And in Federalist 10 he proposes a solution to the “superior force of an interested and overbearing majority.”

Even Alexander Hamilton, perhaps the most statist of the Founders, argued against a Bill of Rights in Federalist 84, because “they are not only unnecessary . . . but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?”

Imposing a Progressive View of the First Amendment

Thus the professors’ brief for an equality-infused First Amendment is built on misread history, non-analogous Supreme Court precedent, and faulty social science. But their theory does have a philosophical basis: the early twentieth-century progressive movement, which tore down and remade American political and legal philosophy in its own image.

The most influential American founders believed in Lockean natural-rights theory. In sum: we are born with certain inalienable rights and responsibilities. This moral code is pre-political. We consent to give up some of our autonomy to create a government that will allow us to pursue our ambitions as we choose; what Locke called “natural freedom.” If government fails to deliver, we can abolish it and start over. We are equal in this “social contract” to the extent law does not unfairly burden or privilege us. Jefferson expressed this view most forcefully in the Declaration of Independence, which he deemed an expression of the “American mind.”

The Constitution also embodied this philosophy. The Founders incorporated several structural barriers to restrain majorities from encroaching into Americans’ pursuit of their natural freedom. These included specifically listing the federal government’s 18 powers in Article I, the preamble, and the Ninth and Tenth Amendments.

Madison expounded the Constitution’s natural-rights foundation when he introduced the Bill of Rights, “[G]overnment is instituted, and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety.” Any government prerogatives beyond those precepts was not proper law and therefore illegitimate. As Roger Pilon explains: “America is a democracy in the most fundamental sense of that idea: authority, or legitimate power, rests ultimately with the people. But the people have no more right to tyrannize each other through democratic government than government itself has to tyrannize the people.”

This view held until the Progressive movement’s ascendency in late nineteenth century. Progressives eventually eviscerated the Constitution’s social contract, overcoming its structural limits to popular government. Doing so transformed government from a vehicle to protect rights to an arbiter and redistributor of private-sector largess through administration and politics.

From Objective Law to Subjective Law

In law, progressives nurtured the legal positivist movement. Positivists reduced all human relations to political choices; therefore, no aspect of life was nonpolitical. As Progressive icon Oliver Wendell Holmes stated, no “brooding omnipresence in the sky” directed law, only human will. Law therefore did nothing more than sanction the desires of those in charge. Like the rest of twentieth-century socialist doctrine, legal positivism originated in Germany and found its fullest application in the Soviet Union. Thus, the 1927 Soviet Supreme Court stated, “Communism means not the victory of socialist law, but the victory of socialism over any law, since with the abolition of classes with antagonistic interests, law will disappear altogether.”

Western traditions of liberty and democracy rebuffed the full effect of legal positivism, but only so much. Through fits and starts American progressives seized the government and enacted their agenda. The final capitulation came in the 1938 Supreme Court case US v. Carolene Products, which endorsed full government control over Americans’ economic lives, while protecting with a “more searching judicial inquiry” only political rights. The politicization of the Constitution was complete; natural freedom was dead and the welfare state replaced the social contract. Henceforth, what mattered most was building a political coalition to grab the biggest slice of taxpayer pie.

This legacy is evident throughout the elite legal academy today. Lessig’s complaint about the money primary, for instance, is indistinguishable from the 1912 Progressive Party platform: “Behind the ostensible government sits enthroned an invisible government owing no allegiance and acknowledging no responsibility to the people. To destroy this invisible government, to dissolve the unholy alliance between corrupt business and corrupt politics is the first task of the statesmanship of the day.”

Regarding political speech, Tribe follows his forbear Justice Holmes in deriding the libertarian vision of a “neutral baseline, an ‘unregulated’ marketplace of speech” as a “search for something that just isn’t there.” According to Tribe:

“The question in constructing a system of campaign finance . . . should not be: ‘What business has government interfering in the unregulated operations of a supposedly “natural” and politically unmediated marketplace of information and ideas?’ Rather, the question should be: Given that the whole edifice is constructed by political choices, which set of choices will best accommodate the conflicting values that our constitutional framework, prominently including the First Amendment, should be understood to embody?”

Here again, Tribe is wrong. A natural political-speech marketplace does exist. It is a vast, wild, and unforgiving place. And its success is unparalleled in human history: the Internet. A hands-off governmental policy allowed the Internet to organically grow into an unimpeded idea bazaar. According to Federal Elections Commission Commissioner Lee E. Goodman, the Internet has “placed a printing press in the hands of every citizen in America.” The winners are the daring, the clever, and the novel. Capitalism hasn’t distorted this marketplace but fostered its success.

The question, then, is not “How do we impose values on our political-speech fora?” But, “How do we make all our speech venues more like the Internet?” The Roberts Court has taken baby steps toward that goal, but only that. Those wishing to pool a few hundred dollars together to buy radio ads or spend even less contributing to a candidate must register with the government, like a sex-offender would, so Big Brother can keep tabs.

For all their First Amendment foibles, however, the professors don’t lack pretension. Lessig puts out messiah-complex videos and Tribe writes sentences like: “The political branches should be left with some tools to regulate the alchemy through which economic inequality perpetuates itself by transmutation into political and civic inequality.” Whatever that means, it likely has little to do with the political freedom First Amendment drafters had in mind with the majestic words, “Congress shall make no law.”