Magazine article The American Prospect

Who Owns Freedom?

Magazine article The American Prospect

Who Owns Freedom?

Article excerpt

Shortly after Elena Kagan was nominated to the Supreme Court in May, a front-page headline in The New York Times reported that she "Leaned Toward Conservatives" on a key issue. The issue was the First Amendment, and based on a major law review article Kagan wrote in 1996, reporter Adam Liptak predicted that in her views on freedom of expression, Kagan would be closer to conservative justice Antonin Scalia than to John Paul Stevens, the liberal justice she would replace.

Stevens, Liptak noted, had written the 1978 opinion supporting the Federal Communications Commission's ban on George Carlin's "seven dirty words." And he had dissented when the Court in 1989 struck down a Texas law making it a crime to burn the flag. Scalia was in the narrow majority that recognized the right to such inflammatory protest. The "conservative" position, in other words, favored free expression over censorship.

If this is conservatism, sign me up for Team Scalia. Fortunately, it's not quite so simple--three of the Court's liberals joined Scalia on the correct side of the flag-burning case, for example. But the Times' inversion raises a bigger question: At a time when the right has claimed "freedom" as its central principle, do liberals take freedom, particularly civil liberties such as freedom of expression, seriously enough?

At one time, civil liberties, free expression, and the right to peaceful dissent were as central to the progressive vision as civil rights and economic fairness. But in recent years, perhaps as a result of a backlash in the 1990s against "rights-based liberalism," they seem to have receded. Sure, we're all for the rights that result in things we want for ourselves, such as the right for everyone to marry the person they love. But do we have the same commitment to the kind of rights that allow human creativity and political debate to flourish but might also lead to things we don't like, whether it's flag-burning, nasty 30-second political ads, wacky religious movements, pornography, or even hate speech? Similarly, at a moment when we want the current president to be able to overcome obstacles, do we care about limitations on presidential power that seemed so essential when the president was named Bush?

In the wake of the Supreme Court's (incorrect) decision in the recent Citizens United case, for example, it was astonishing to hear progressives cavalierly dismiss the idea that corporations might be presumed to have a right to free speech, albeit one that can be limited with certain justifications, such as to limit the influence of money in politics. …

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