THE RIGHT’S FIRST AMENDMENT: THE POLITICS OF FREE SPEECH AND THE RETURN OF CONSERVATIVE LIBERTARIANISM

Vol. 26 No. 7 (November 2016) pp. 132-137

THE RIGHT’S FIRST AMENDMENT: THE POLITICS OF FREE SPEECH AND THE RETURN OF CONSERVATIVE LIBERTARIANISM, by Wayne Batchis. Stanford: Stanford University Press, 2016. 296 pp. Paper $29.95. ISBN: 978-0-8047-9801-6.

Reviewed by Ken I. Kersch, Department of Political Science, Boston College. Email: kersch@bc.edu.

After what now seems like a perversely protracted refusal by scholars, first, to take modern conservatism seriously as the subject of scholarly inquiry and, second, to attempt to apprehend and explicate it dispassionately on its own terms, rather than as a strawman for showcasing their own posturings and prejudices, there has emerged, in the last decade or so, an avalanche of excellent studies of American conservatism by a talented scholars from an array of academic disciplines, more than making up for lost time. Predictably, in constitutional law and history, one line of that scholarship began by whiggishly tracing contemporary conservative “originalism” backwards from seedtime to the reaping of Robert Bork, Raoul Berger, Edwin Meese, and Antonin Scalia. More sophisticated recent work – which now includes Wayne Batchis’s THE RIGHT’S FIRST AMENDMENT – allows for the possibility that, when looked at over the long term, none of what were once assumed to be defining dimensions of constitutional conservatism, whether a fidelity to “original meaning,” a skepticism about “rights talk,” or an insistence on “judicial restraint,” were either consistently practiced by conservatives, or even argued for: the movement was pluralistic, and constitutional conservatism’s core commitments as we know them today were contested and hard-fought.

Instead of starting with a presumption of what the conservative position would or should be, Batchis takes the straightforward but (oddly) unusual approach of simply asking what it is that self-identified conservatives said over time about the nature, implications, and scope of the First Amendment’s requirement that “Congress shall make no law … abridging the freedom of speech.” Creatively and appropriately – but, again, a bit unusually – Batchis undertakes his empirical examination in two spheres. The first surveys conservative constitutional argument in the public sphere, with special attention to arguments advanced in postwar conservatism’s flagship, crossroads journal, William F. Buckley Jr.’s NATIONAL REVIEW (“NR”) (founded in 1955). The second surveys and anatomizes conservative constitutional arguments by the U.S. Supreme Court’s conservative justices. Batchis asks an array of questions about the character and trajectory of free speech arguments in each of these spheres separately, and about the relationship between arguments in one sphere and those in the other. He finds variety, disagreement, nuance, and development. Batchis’s ultimate thesis is that, over time, the conservative movement, reacting to, reflecting upon, and strategizing in response to particular political controversies and intra-movement ideological trends (campus political correctness and free-market libertarianism, respectively), transformed itself into a strident advocate for, and defender of, latitudinarian understandings of the freedom of speech.

Batchis’s introductory chapter rightly emphasizes that there was no fixed relationship over the long term between what was understood in a particular epoch as “conservative” as a political ideology or disposition, and permissive or latitudinarian understandings of free speech. Adducing pioneering studies by Mark Graber, David Rabban, and others of Gilded Age “conservative libertarianism,” Batchis reminds us that many of that era’s rights-based individualists championed the freedom of speech alongside their better-known (“conservative”) defenses of contract and property rights (Batchis might have underlined, as well that many of the era’s pre-liberal progressives took the opposite position on both (Kersch 2004)). At the same time, before and after, “moralistic conservatives” consistently championed the vigorous exercise of state and local government [*133] police powers to promote public health, safety, and morals, including the aggressive regulation of speech that had a “bad tendency” (again, an approach they typically shared with their political/ideological opponents) (p. 2). Batchis’s focus, however, is on a slightly later conservatism still within in living memory: the more moralistic or virtue-centered conservative argument calling for active government policing of speech, as advanced, typically, by Christian conservatives (mainstream, evangelical, and Roman Catholic), key neoconservatives, and national security-minded Cold War anti-communists. Here, enlisting recent work by the political psychologist Jonathan Haidt (Haidt 2012), Batchis emphasizes the special conservative regard for, amongst other values, “loyalty,” “authority,” and “sanctity” (p. 9).

In Chapter One, Batchis surveys articles on free speech in NATIONAL REVIEW from its founding to the present. In NR’s early years, he finds both “moralistic conservatism” and “libertarian conservatism.” But Batchis’ count finds that “in the nearly six decades of NATIONAL REVIEW publication, the ratio of pro-free speech to pro-speech-regulation articles has performed a spectacular flip.” (p. 31). In NR’s first decade, (permissive) pro-free speech articles constituted twenty-seven percent of the total; in its most recent decade, the pro-free speech percentage climbed to eighty-seven percent – a sixty-percent change. Batchis’ close inductive reading of articles constituting this trajectory, in conjunction with Haidt’s framework and insights, leads him to refine what was a heretofore a two-dimensional schema of conservative approaches to the freedom of speech to four-dimensions by adding “free-market” and “commonsense” conservatism to the “moralistic” and “libertarian” frames (pp. 32-34). He uses this four-dimensional scheme to map the developmental trajectory, in NR and on the Court.

In Chapter Two, Batchis positions his study within political science’s law and courts/judicial politics literature, arguing that his findings in THE RIGHT’S FIRST AMENDMENT pose a fundamental challenge to the “attitudinal model” of judicial decision making, which posits that liberal justices vote for liberal positions and conservative justices vote for conservative ones -- they “vote,” in this sense, “politically” rather than “legally.” Batchis rightly points out that, as this study (for one) shows, “such an approach … begs the most important questions.” (p. 49). “[I]t tells us nothing about how, why, or if the relationship between political conservatism and free speech values has changed over time” (p. 49). He observes, moreover, that “even what it means ‘to speak’ has [also] arguably changed dramatically” (pp. 49-50). One doesn’t need to be especially observant to notice, as you would think a legion of breast-beating empiricists might, that “[t]he meaning of ‘free speech,’ as well as the meanings of ‘conservatism’ and ‘liberalism,’ is to some extent a moving target” (p. 63). The attitudinal model not only misses this crucial legal and political fact, but, Batchis suggests (providing evidence), that its more ambitious practitioners have fudged their models to obscure this fact by cynically and deliberately manipulating their coding (pp. 57-61).

But he digresses. Turning back from behaviorist story-telling to empirically verifiable facts, and drawing on Jack Balkin’s concept of “ideological drift” (Balkin 1993), Batchis explains how political actors – in this case conservatives confronted by a succession of freedom of speech controversies – operate in particular contexts over time, contexts in which they hew to precedents and patterns, strategize politically, think, and change their minds. Here, Batchis recounts the progress of entrepreneurial conservative legal organizations considering matters of commercial speech, political campaigns, and the politics of the academy in re-thinking the value of free speech in principle and politics, and coming to see the value of adopting formerly “liberal” free speech “attitudes” as their own.

Chapter Three, entitled “Political Correctness and the Rise of the Conservative Victim,” traces what Batchis posits as one of the most significant of these transformations. He starts with a baseline mid-century orientation formed by a “mass society” frame under which even libertarian conservatives like Frank Meyer (in NR) likened 1960s student protests to fascist [*134] mobs “designed to intimidate constitutional government” (p. 71), and describes a virulently speech-restrictive Right-Wing anticommunism (here, the frame and analogy was to criminal conspiracy and the sovereign right of a free society to self-preservation), and a moral foundationalism positing an important role for government in supporting values of authority, traditional morality, respect for institutions, and law and order. As things changed on the Left, things changed on the Right. With the ascendance on the Left of radical, anti-liberal feminism and critical race theory, both of which, focusing on power over rights, called for the strict regulation and punishment of ostensibly racist and sexist speech, the center of gravity of what had seemed like a largely settled “conservative” position started to shift.

Chapter Four carries these developments forward into the courts, charting the emergence of what was now a visible change of direction in the thinking and voting of key conservative judges. The chapter begins with a close and sustained analysis of the arguments in R.A.V. V. CITY OF ST. PAUL (1992), a case involving a hate-speech prosecution for a racially-motivated cross-burning on a black family’s lawn (Batchis focuses on Justice Scalia’s argument concerning the non-neutrality, or political bias, of the hate-speech law). The chapter also discusses the important U.S. District Court campus anti-speech code decision of DOE V. UNIVERSITY OF MICHIGAN (1989) (penned by a Jimmy Carter appointee), and the cross-burning case of VIRGINIA V. BLACK (2003), which Batchis considers alongside R.A.V. to show ongoing divisions on the Right, whether nuanced or sharp (notable, of course, were Justice Clarence Thomas’s vote to uphold the constitutionality of the criminal prosecution for the cross-burning here, as well as Justice Samuel Alito’s traditionalist conservative dissent from the Court’s decision to afford First Amendment protections to the profoundly disturbing protests at military funerals mounted by the fringe, Far Right Westboro Baptist Church (SNYDER V. PHELPS (2011)). Batchis recounts the founding (1999) and growing activism of the Foundation for Individual Rights in Education (FIRE) in fighting campus political correctness, noting the ongoing resistance by the group to being labeled a “conservative” organization.

Chapter Five recounts “The Rise of Free-Market Conservatism” and its implications for speech-protective conservatism. Here, Batchis focuses on the Right’s emerging championship of the “commercial speech” doctrine and its constitutional opposition to campaign finance regulation. Again, the focus is on change, here juxtaposing Justice William Rehnquist’s old school rejection of the commercial speech doctrine to new conservative thinking (in NR in 1974, by the University of Chicago economist Ronald Coase) questioning “the presumed dichotomy between ‘the market for goods and services’ and the ‘market for ideas’” (p. 130), and chronicling William F. Buckley Jr. change of heart on free speech after being legally compelled, against his will, to join a labor union as host of PBS’s FIRING LINE: Buckley fought back on First Amendment grounds, with the support of the ACLU. Batchis charts the progress of these matters in the Supreme Court as well, starting with BIGELOW V. VIRGINIA (1975), where, fueled by an “ideological nudge” (pp. 55, 137) (since the case involved advertisement for abortion services, which he substantively favored), Justice Harry Blackmun – who had recently authored ROE V. WADE (1973) – came down in favor of affording constitutional protection for commercial speech. Batchis continues with VIRGINIA STATE BOARD OF PHARMACY V. VIRGINIA CITIZENS CONSUMER COUNCIL (1976) and BATES V. STATE BAR OF ARIZONA (1977) (voiding limits on lawyer advertising, with most of the older conservative justices – Burger, Rehnquist, Powell, and Stewart – dissenting), and moves onto cases involving the regulation of advertising concerning food and drugs, including tobacco. The chapter provides an extended discussion of the now well-known “Powell Memo” (1971) in which the future Justice, a corporate lawyer and former President of the American Bar Association, sounded the alarm about a concerted attack on the American free enterprise system and sought to rally the U.S. Chamber of Commerce to mount an aggressive constitutional defense. [*135]

Chapter Six carries the story forward towards convergence and consensus, from the initial moralistic conservative framing, onto a compromise position mid-way between that and free market conservatism, to a “remarkably unified” conservative position on commercial speech (p. 159). In this, Batchis focuses on the role of Michael Greve’s Center for Individual Rights (CIR) (founded 1988)), paralleling that played by FIRE involving campus political correctness (as I recall, although Batchis doesn’t note it, CIR in its early years – pre-FIRE –actually launched the anti-PC legal fight against campus speech restrictions). Naturally, this is also a story about a broader re-thinking of principles, as the diverse substantive areas taken up in Batchis’ chapters intersected and spoke to each other in the minds of conservatives, off the courts and on.

The book culminates in Chapter Seven on “CITIZENS UNITED and the Paradox of Associational Speech,” with “the Court’s conservatives … merely tracking their trajectory on free speech, now decades in the making.” (p. 183). The tone and approach of this chapter is markedly different, reflecting its origins as a stand-alone law review article. Here, Batchis provides a sustained normative critique of the practice of affording constitutional free speech protections to associations, as opposed to individuals, and proposes what he argues is a more sensible doctrinal approach moving forward. The book ends with a brief conclusion.

THE RIGHT’S FIRST AMENDMENT makes valuable contributions on a number of fronts. While redundant and a bit standard-issue in places, it provides a clear overview of the subject, and, in short space, makes its case passably well. But it is not a deep historical or intellectual historical excavation of its subject, relying as it does, in canvasing movement thought, on short takes from NATIONAL REVIEW only. Conservatives wrote a lot about free speech from the 1950s through the 1980s in many other venues as well, including the AMERICAN POLITICAL SCIENCE REVIEW (Willmoore Kendall), other magazines and journals, and in some prominent and influential books, including Sidney Hook’s HERESY, YES -- CONSPIRACY, NO! (1953), Walter Berns’s FREEDOM, VIRTUE, AND THE FIRST AMENDMENT (1957) and THE FIRST AMENDMENT AND THE FUTURE OF AMERICAN DEMOCRACY (1976), and Harry Clor’s OBSCENITY AND PUBLIC MORALITY: CENSORSHIP IN A LIBERAL SOCIETY (1969) (and Clor’s other books). Herbert Storing’s measured criticism of Martin Luther King, Jr.’s protest marches (“The Case Against Civil Disobedience” [1969] (in Bessette 1995)) remains a challenging and sophisticated statement (some of these authors made published condensed statements in article form in NR, and some, like Berns, are covered by Batchis because NR reviewed their books). Many other conservative organizations, pre-CIR, pre-FIRE made free speech arguments in the period – think, for instance, of anti-smut campaigners (like the Roman Catholic Legion of Decency) or the libertarians (e.g. The Cato Institute). Mentioning this is not to criticize the book (much) for not doing what was never part of its cabined agenda – but to remind readers that there remains considerable room for filling in a deeper and more nuanced picture. Still, Batchis does cover major thinkers and political actors on the Right to the extent they reprised their arguments in NR. Batchis does a better job of surveying the substantive focus of the free speech controversies in recent years than those of the 1950s and 1960s.

American Political Development scholars concerned with argument and discourse over time (see, e.g., Hattam and Lowndes 2007; Berk, Galvan, and Hattam 2013) might wish for more engagement with their recently proposed models for studying developmental changes in political thought and argument in the public sphere. By deciding to frame dynamics that would fit well with this sophisticated APD literature as counters to law and courts behavioralism/attitudinalism, Batchis perhaps unwittingly – and, in the end, pointlessly – opens himself up to the criticism that his study fails to establish causation, as opposed to correlation. Self-styled “scientists” might ask if the arguments in NR “caused” the thinking of conservative Supreme Court justices to change [*136] the way they might otherwise have “voted” (and the arguments they made justifying their votes).

But, of course, this cause and effect framing would bowdlerize what Batchis is really focused on here, and doing. By spending considerable time countering the attitudinalists, and making that his leitmotif, Batchis risks falling between two stools. I’m inclined to cut him some slack on this, though, because he makes a useful point on very important matters – probably futilely – concerning frameworks, categories, classifications, change, and ostensibly scientific aspirations to the establishment of cause and effect in the study of judicial politics. Positioned as he is at the mid-range between history/APD and the mainlines of (Americanist) political science in a way likely to prove less than satisfying to either, Batchis is able to make a significant, corrective contribution to the judicial politics literature – in fact, if not to likely professional effect.

Readers interested in judicial politics – and the development of modern conservatism’s thinking and action concerning the freedom of speech and civil liberties more generally – will find this book useful, and thought-provoking along many dimensions.

REFERENCES:

Balkin, J.M., 1993. “Ideological Drift and the Struggle Over Meaning,” CONNECTICUT LAW REVIEW 25: 869.

Berk, Gerald, Galvin, Dennis, and Hattam, Victoria, 2013. RECONFIGURING INSTITUITONAL ORDER AND CHANGE. Philadelphia: University of Pennsylvania Press.

Berns, Walter, 1957. FREEDOM, VIRTUE AND THE FIRST AMENDMENT. Baton Rouge: Louisiana State University Press.

Berns, Walter, 1976. THE FIRST AMENDMENT AND THE FUTURE OF AMERICAN DEMOCRACY. New York: Basic Books.

Clor, Harry, 1969. OBSCENITY AND PUBLIC MORALITY: CENSORSHIP IN A LIBERAL SOCIETY. Chicago: University of Chicago Press.

Haidt, Jonathan, 2012. THE RIGHTEOUS MIND: WHY GOOD PEOPLE ARE DIVIDED BY POLITICS AND RELIGION. New York: Vintage.

Hattam, Victoria, and Lowndes, Joseph,, 2007. “The Ground Beneath Our Feet: Language, Culture, and Political Change.” In Stephen Skowronek and Matthew Glassman, editors, 2007. FORMATIVE ACTS: RECKONING WITH AGENCY IN AMERICAN POLITICS. Philadelphia: University of Pennsylvania Press.

Hook, Sidney, 1953. HERESY, YES – CONSPIRACY, NO! New York: J. Day and Co.

Kendall, Willmore. “The ‘Open Society’ and its Fallacies,” 1960. AMERICAN POLITICAL SCIENCE REVIEW 54: 972-79.

Kersch, Ken I., 2004. CONSTRUCTING CIVIL LIBERTIES: DISCONTINUITES IN AMERICAN CONSTITITUIONAL LAW. Cambridge University Press.


Powell, Jr. Lewis F. to Mr. Eugene B. Sydnor, Jr. Education Committee, U.S. Chamber of Commerce, August 23, 1971. “Confidential Memorandum: Attack of American Free Enterprise System.

Storing, Herbert, 1969. “The Case Against Civil Disobedience” In Joseph Bessette, editor, 1995. TOWARD A MORE PERFECT UNION: WRITINGS OF HERBERT STORING. Washington, D.C.: American Enterprise Institute.

CASE REFERENCES:

BATES V. STATE BAR OF ARIZONA, 433 U.S. 350 (1977).

BIGELOW V. VIRGINIA, 421 U.S. 809 (1975).
[*137]

DOE V. UNIVERSITY OF MICHIGAN, 721 F.Supp. 852 (E.D. Mich. 1989).

R.A.V. V. CITY OF ST. PAUL, 505 U.S. 377 (1992).

ROE V. WADE, 410 U.S 113 (1973).

SYNDER V. PHELPS, 562 U.S. 443 (2011).

VIRGINIA V. BLACK, 538 U.S. 343 (2003).

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© Copyright 2016 by author, Ken I. Kersch.