From the sensationalization of Supreme Court Justice Brett Kavanaugh’s confirmation hearing last September, to last month’s media frenzy over potential challenges to Roe v. Wade and new statewide abortion bans, the public has become increasingly fixated on the role the Supreme Court plays in politics.
This public fascination with the judicial branch follows a larger trend of liberal skepticism regarding the Supreme Court’s alleged “weaponization” of the First Amendment. Liberals cite the rulings in Janus v. American Federation of State, County and Municipal Employees, Masterpiece Cakeshop v. Colorado Civil Rights Commission, and National Institute of Family and Life Advocates v. Becerra to argue that under Chief Justice John Roberts, the Supreme Court has manipulated the First Amendment to fight liberal policy.
They see the Supreme Court’s rulings as an attempt to circumvent legislation that protects public sector unions, LGBT individuals, and the right to an abortion in favor of more conservative policy goals. For example, a 2018 New York Times article entitled “How Conservatives Weaponized the First Amendment” described the court’s alleged elevation of “conservative speech” and suppression of “liberal speech.”
But you can’t “weaponize” a fundamental right. The Constitution and the Bill of Rights were written under the premise that individual rights precede government, not the other way around.
The Masterpiece Cakeshop case didn’t create an affirmative right to discriminate against LGBT couples, it upheld an individual’s right to be free from compelled speech, and asserted that the government cannot constitutionally show hostility toward particular religions. Similarly, NIFLA v. Becerra didn’t restrict a woman’s right to an abortion, it prevented the government from compelling private businesses to display political speech they fervently disagree with. And Janus didn’t, as liberal Justice Elena Kagan dissented, allow “black-robed rulers [to override] citizens’ choices,” it protected an individual’s right to not engage in political activity with which he does not agree. These rulings merely gave credence to our country’s unique reverence for freedom of conscience, and actually enforced the First Amendment.
Although a basic reading of the Constitution should make these rulings glaringly self-evident, the debate surrounding First Amendment jurisprudence has become so politicized that many people don’t see them as such. Even though these cases were decided nearly a year ago, the media hasn’t stopped criticizing the Roberts’ court’s alleged contortion of the Constitution for nefarious ends. Unfortunately, partisans now view First Amendment cases as wins and losses in a zero-sum game of constitutional baseball.
This isn’t how it should be: The First Amendment is an apolitical, fundamental freedom from government interference. This means that an individual’s free speech rights shouldn’t ever fall victim to political squabbles and partisan interests. The First Amendment shouldn’t be a weapon of the Left, the Right or any political faction.
Speech is intrinsically valuable in and of itself, regardless of which interest groups its protection threatens. Without a robust marketplace of ideas, we throw away the cornerstone of our American exceptionalism: the liberty to disagree with other people’s ideas.
Politically motivated interest groups and politicians argue that we must interpret the First Amendment in partisan terms, which has led many to believe that free expression is only valuable when it favors a particular political agenda. However, if you want to adopt a limited speech system that caves to popular will, you run the risk of losing it all when the pendulum swings toward the other party. The Supreme Court was specifically designed to be insulated from public opinion precisely to avoid this danger.
That’s why the Supreme Court’s protection of free speech isn’t “weaponization.” If anything, it’s the opposite, because it protects people of all political stripes.
Interest groups and liberal activists have fogged the lens through which we analyze the Constitution, and attempted to brush aside fundamental rights as mere inconveniences that stand in the way of political priorities. Yet our country’s robust protection of free speech is what makes America so exceptional — and we must never take that for granted.
Audrey Fahlberg is a rising fourth-year student at the University of Virginia, where she is an opinion editor and editorial board member for The Cavalier Daily.
