What is the First Amendment For?

Stanley Fish, and left wing law professor and NY Times columnist, writes a column today that attempts to give a principled justification for the votes of the four left wing “Justices” in the “Citizens United” free speech case (that’s the one where the government claimed it could block companies from publishing books that advocated for or against a political candidate).  In his article, he claimed that Stevens (the author of the losing side) was engaging in “consequentialist” reasoning

Stevens also values robust intellectual commerce, but he believes that allowing corporate voices to have their full and unregulated say “can distort the ‘free trade in ideas’ crucial to candidate elections.” In his view free trade doesn’t take care of itself, but must be engineered by the kind of restrictions the majority strikes down. The marketplace of ideas can become congealed and frozen; the free flow can be impeded, and when that happens the only way to preserve free speech values is to curtail or restrict some forms of speech, just as you might remove noxious weeds so that your garden can begin to grow again. Prohibitions on speech, Stevens says, can operate “to facilitate First Amendment values,” and he openly scorns the majority’s insistence that enlightened self-government “can arise only in the absence of regulation.”

The idea that you may have to regulate speech in order to preserve its First Amendment value is called consequentialism. For a consequentialist like Stevens, freedom of speech is not a stand-alone value to be cherished for its own sake, but a policy that is adhered to because of the benign consequences it is thought to produce, consequences that are catalogued in the usual answers to the question, what is the First Amendment for?

What Fish ignores, because it would completely destroy his point, is that the same left wingers who are perfectly happy having the government block political speech that they don’t like, are utterly opposed to letting the government ban books, or movies, or nude dancing, that others dislike, but that the lefties are ok with.

The idea that there are strong public policy reasons to keep Boston from banning pornographic books or magazines, but there are also strong public policy reasons to allow Congress to ban political speech by people who’ve joined together into a corporation for teh purpose of getting their political views out, is an idea so wrethedly lame that not even an “intellectual” could be stupid enough to believe it.

Stevens didn’t vote the way he did out of principle.  He voted that way because he has no principles.  Because the only thing that matters to him is getting what he wants, and the Constitution, the law, and reason can all go to hell if they get in the way of that.

ht: Tom Maguire

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One Response to “What is the First Amendment For?”

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