Why Free Speech Is Not Enough

Kevin Lamarque/Reuters
Jeff Sessions being sworn in as US attorney general, with his wife Mary Sessions, President Donald Trump, and Vice President Mike Pence, February 2017

“Civil liberties once were radical.” So begins Laura Weinrib’s important revisionist history of the origins of American civil liberties, provocatively entitled The Taming of Free Speech: America’s Civil Liberties Compromise. In her account, the fight began in the early twentieth century as a radical struggle for workers’ rights and redistributive justice. The central claim was for a “right of agitation,” which its proponents believed predated the Constitution and afforded workers the right to engage in direct collective action to pressure employers for higher wages and better working conditions. To these early civil libertarians, all the forces of the state, and especially the courts, were enemies, allied with business interests and against labor. As Morris Ernst, first general counsel to the American Civil Liberties Union, summed it up in 1935, “The decisions of the courts have nothing to do with justice.”

By 1938, however, Roger Baldwin, the ACLU’s executive director, proclaimed that the ACLU had “no ‘isms’ to defend except the Bill of Rights.” The ACLU had shifted its focus from labor’s struggle for economic justice to a defense of the “neutral” rights of speech and association, rights that could be invoked not just by individual workers and unions but by Henry Ford and big business. As Baldwin put it one year later, “We are neither anti-labor nor pro-labor. With us it is just a question of going wherever the Bill of Rights leads us.”

Sam Lebovic tells a related story in Free Speech and Unfree News. In his account, American constitutional law has favored a classical liberal “freedom of the press,” which stresses the importance of staving off state censorship, over “freedom of the news,” a concept formulated by Franklin Delano Roosevelt, which envisions the state working proactively to ensure access to information against concentrated media ownership. Lebovic argues that the liberal conception of free speech and a free press, founded on the “free marketplace of ideas,” is and always has been inadequate to address the threats to “freedom of the news,” including not just the power of media moguls, but also the consequences of the Internet and the state’s overreliance on secrecy.

Both authors argue that the dominant conception of civil liberties is insufficiently ambitious. They worry that as formulated, civil liberties are as much a tool for the powerful as for the powerless. A “free marketplace of ideas,” Lebovic argues, has the same flaws as “laissez-faire” capitalism; it gives those with greater means the ability to skew debate in their favor. Weinrib characterizes the ACLU’s adoption of this classical liberal conception of free speech as shifting “from the complicated calculus of the ‘right of agitation’ to a streamlined civil libertarianism that was impervious to inequalities in the marketplace of…

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