In response to a proposal from the editors of the Boston Globe, hundreds of newspapers on Thursday published editorials about the importance of a free press. The New York Times was among them, quoting William Brennan’s decision in Times v. Sullivan, which insisted that “debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”
Presumably, such “vehement, caustic, and sometimes unpleasantly sharp attacks” on public officials would include, inter alia, showing a film critical of Hillary Rodham Clinton while she was seeking the presidency, publishing material critical of the Obama administration’s climate policies, or advocating the protection of the right enshrined in the Second Amendment. But, of course, the same people who are patting themselves on the back today for their championing of the First Amendment are the same people who have celebrated the suppression of such “uninhibited, robust, and wide-open” public discourse, often with the New York Times cheering them on.
In the first instance there is the case of Citizens United, a nonprofit advocacy group that was prohibited, in plain contravention of the First Amendment, from showing a film called Hillary: The Movie. The Supreme Court has affirmed that this was a violation of Citizens United’s rights under the First Amendment, and the response of the Democratic party — again, with the blessing of the New York Times — was to attempt to gut the First Amendment, which every Democrat in the United States Senate voted to do under the leadership of Harry Reid. In the second and third cases are the Democratic officials at the state and federal level who have been and are abusing their investigatory and regulatory powers to retaliate against organizations that are critical of certain global-warming and gun-control initiatives. Democratic activists have gone so far as to argue that Charles and David Koch should be imprisoned for their political activities, and that “climate denial” should be a criminal matter. None of that is consistent with our traditional understanding of the First Amendment and of free expression more generally.
The point here isn’t to point out the obvious hypocrisy, though hypocrisy abounds in the matter. The point, rather, is to ask: How should we think about the First Amendment — as a narrowly construed legal provision or as part of a generally liberal attitude toward free speech?