Why is it considered “liberal” to compel others to say or fund things they don’t believe?
That’s a question raised by the Supreme Court’s decisions in three cases this year. And it’s a puzzling development for those of us old enough to remember when liberals championed free speech — even when it involved advocacy of sedition or sodomy — and conservatives wanted government to restrain or limit it.
The three cases dealt with quite different issues. In National Institute of Family and Life Advocates v. Becerra, a 5-4 majority of the court overturned a California statute that required anti-abortion crisis pregnancy centers to inform clients where they can obtain free or inexpensive abortions — something the people operating these centers regard as homicide.
The same 5-4 majority in a second case, Janus v. American Federation of State, County, and Municipal Employees, reversed a 41-year-old precedent by ruling that public employees don’t have to pay unions fees covering the cost of collective bargaining. The court, echoing a position taken by President Franklin D. Roosevelt in the 1930s, reasoned that collective bargaining with a public employer is inevitably a political matter and that forcing employees to finance it is compelling them to subsidize political speech with which they disagree.
In the third case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, the court avoided a direct decision on whether a baker, whose Christian beliefs oppose same-sex marriage, could refuse to custom design a wedding cake for a gay couple, despite a state law barring discrimination against gays. Seven justices ruled that the commission showed an impermissible animus against religion, but the four liberal justices endorsed a separate opinion indicating they’d otherwise rule against the baker.
To be sure, rational arguments can be made for the dissenters’ positions: In Becerra they argued that the law simply prevented misleading advertising; in Janus they argued that union members should pay for representation services rendered; in Masterpiece they argued that selling a custom cake was a routine service, not a form of expression. You may not agree, but you can see why others might make these arguments.
But are they “liberal”? That word comes from a Latin root that means “free.”
And “free” is the key word in the First Amendment to the Constitution, which bars Congress from passing laws “prohibiting the free exercise” of religion or “abridging the freedom of speech or of the press.”
The Supreme Court’s First Amendment jurisprudence got its start almost exactly 100 years ago in cases challenging laws, passed by a Democratic Congress and endorsed by a Democratic administration, prohibiting opposition to the government — specifically to American participation in World War I.
The justices hesitated to block such prosecutions, but those considered “liberal” — Republican appointee Oliver Wendell Holmes and Democratic appointee Louis Brandeis — were most likely to look askance. The American Civil Liberties Union was founded in 1920 to defend the free speech rights of everyone, even vile extremists.
Unhappily, the ACLU today subordinates free speech to other values, like defending the sensibilities of certain students on campuses from disagreeing points of view. Other liberals have been moving in the same direction. It’s less important for them that people say what they think and more important that they say what the government requires.
The Economist’s Adrian Wooldridge, in his Bagehot blog, describes the process. Historically, he says, liberals understood that conflict was inevitable and tried to foster freedom, based on their distrust of power, their faith in progress, and their belief in civic respect.
But today, Wooldridge writes, “Liberalism as a philosophy has been captured by a technocratic-managerial-cosmopolitan elite.” They have moved from making “a critique of the existing power structure” to becoming “one of the most powerful elites in history.” In response, we see “a revolt of the provinces against the city,” which includes both Brexit and President Trump. In response, as a commenter to a Niall Ferguson column in the Times of London puts it, “Liberals are increasingly authoritarian.”
A lot like the “liberal” Supreme Court justices, who don’t see a constitutional problem with compelling crisis pregnancy centers to send messages they find repugnant or requiring union members to subsidize political speech they disagree with or forcing people to participate in ceremonies prohibited by their religion.
In the process of supporting these things, liberals are providing support for Friedrich Hayek’s argument in The Road to Serfdom, that movement toward socialism is inevitably movement toward authoritarianism. They seem not to have noticed Yale Law professor Stephen Carter’s observation that “every law is violent,” because “behind every exercise of law stands the sheriff.”
Carter calls for “a degree of humility” in passing and enforcing laws that compel speech against conscience — something today’s “liberals” seem to have forgotten.
