The Right’s views on free speech have evolved over the last 60 years—could Trump signal another shift?
At risk of stating the obvious, now could not be a more pivotal time for conservatism in America. The political party that has long been synonymous with conservative values is about to nominate a presidential candidate who, to many of the most prominent, proud, and prolific adherents to the conservative brand, poses an existential threat. The great American tradition of free speech is also on bold if not squeamish display, as an unprecedented cacophony of schoolyard banter has seemed to replace dignified political discourse as the new normal in presidential contests. Ironically, the frontrunner who has brought such extraordinary color to the mainstream political lexicon and inspired his adversaries to do the same, has recently advocated “opening up” libel laws so they would be less protective of negative reporting on political candidates by major news outlets.
Now could not be a more pivotal time for conservatism in America.
In the not so distant past, conservative standard-bearers like National Review, would likely have agreed with Donald Trump. But earlier this year this fountainhead of conservatism instigated a sort of intellectual coup against the Republicans’ presumptive presidential nominee, boldly pronouncing that it is “Against Trump” on its front cover. It has clearly taken a position on what vision of conservatism it supports, and it is decidedly not the approach promoted by the Republican frontrunner.
Back in the mid-century halcyon days of National Review, its position on one issue was crystal clear: Free speech without restraint was a menace. At the time, conservatism stood for a narrow First Amendment; mainstream conservatives supported a freedom of speech that could be significantly tempered by common sense and morality. As I explore in The Right’s First Amendment, in the early decades of the magazine’s publication—beginning roughly sixty years ago—the overwhelming majority of National Review opinion pieces on the First Amendment advocated increased restrictions on free speech. In other words, if an early edition of the National Review could somehow comment on the future events of 2016, it would not merely condemn the unusually tasteless verbal sparring that has broken out in the Republican primary contest as a moral abomination and a threat to traditional values, it likely would have also questioned the very right of speakers to traffic in such vulgarity, vicious invective and fighting words.
However, the political world has changed in the past sixty years, and so has conservatism. National Review is now an unapologetically pro-free speech publication. In the past decade, only a tiny fraction of its commentary on free speech expressed a view that supported speech-restrictive policies. Instead of lamenting a society that is overly permissive of speech, conservatives lambast liberals for their eager embrace of hate speech restrictions on college campuses and campaign speech regulations imposed on corporations and the wealthy. A similar transformation has occurred on the Supreme Court. The conservative justices on today’s Court have embrace a broad understanding of the First Amendment, pledging their allegiance to free expression in circumstances that—to a conservative—would have been unimaginable a few decades earlier.
Human nature and history suggest that the instinct to protect the speech one hates may be more tenaciously embraced by those who have felt themselves to be the victim of suppression.
As a constitutional principle, the first amendment’s guarantee of free speech has always had unique qualities. A broadly protective view of free expression invariably means supporting the propagation of messages one finds deeply disagreeable, perhaps even repugnant. A consistently generous First Amendment interpretation is a recipe for internal conflict—which is why the risk of societal-backsliding on free speech is so high. Human nature and history suggest, however, that the instinct to protect the speech one hates may be more tenaciously embraced by those who have felt themselves to be the victim of suppression. The unpopular speaker, in other words, will be more likely to understand the plight of other unpopular speakers.
This is precisely what occurred as conservatives transitioned from the speech suppressors on college campuses in the 1960s and 1970s to the speech suppressed in the 1980s and 1990s. In the era of Vietnam protests and social unrest, it was conservative voices who aggressively sought to tamp down the disruptive expressive activity that seemed to plague the nation’s august institutions of higher learning. The late 1980s however, gave rise to an entirely different ivory tower plague as seen by conservatives: the perceived onset of a pervasive, oppressive, political correctness. In a complete reversal, it was conservatives who began to slip into the role of victim. The First Amendment was rediscovered as a tool for defending traditional conservative views in the face of campus speech codes and a hostile ideological climate. Today, this dynamic has been reignited with headline-producing debates over trigger-warnings, micro-aggressions, and dis-invitations of commencement speakers.
When the conservative justices on the Supreme Court moved, like conservatives more broadly, to a newly robust speech-protective posture, striking down a hate speech law in St. Paul in 1992, it might have been seen as an example not only of this evolving stance on free speech, but also of raw “results-oriented” judging deserving of condemnation—or at minimum, some dose of skepticism. It is, of course, a judicial insult of the first order to accuse a judge of being “results-oriented”—particularly when interpreting the Constitution. Why? Because it violates the central premise of a judge’s role: to fairly and consistently apply neutral legal principles to all—ideological friends and foes alike. However, in constitutional adjudication, an ideological nudge can evolve into a principled change in constitutional meaning. In the past decade we have seen a majority of the Supreme Court’s conservatives willing to strike down on free speech grounds not just those laws adverse to their ideological interests, but laws designed to promote them. They have agreed to declare unconstitutional, not just campaign finance laws that hinder the influence of wealthy conservative corporate interests, but laws intended to protect the sanctity of the funeral of a fallen soldier or enhance parental control over their children’s access to morally objectionable video games.
When it comes to the First Amendment, conservative libertarianism is back. Does a Republican presidential nominee who champions a reinvigorated libel law that would make it easier to silence an ostensibly hostile press portend another shift? Only time will tell.