Liberals like free speech in well-regulated doses

  • George Will / Washington Post columnist
  • Saturday, June 22, 2002 9:00pm
  • Opinion

WASHINGTON — When the history of today’s liberalism is written, the writers may marvel at that political persuasion’s remarkable reversal of convictions regarding persuasion. Nothing more tellingly illuminates the contemporary liberal mind than the retreat from the defense of First Amendment guarantees of free speech.

This year’s enactment of yet more campaign finance regulations that expand government restrictions on the quantity of political speech is just the latest confirmation of what professor Martin Shapiro of the University of California School of Law at Berkeley noted in 1996. He wrote that "almost the entire First Amendment literature produced by liberal academics in the past 20 years has been a literature of regulation, not freedom — a literature that balances away speech rights. … Its basic strategy is to treat freedom of speech not as an end in itself, but an instrumental value." Perhaps emboldened by the liberal media’s enthusiasm for campaign regulations, other would-be speech regulators have brought two lawsuits that suggest the future direction of liberal attempts to shrink First Amendment protections.

The Michigan Education Association, a teachers union, is suing the Mackinac Center for Public Policy, a free-market think tank, charging that the center "misappropriated" the "likeness" of the MEA’s president when it quoted him in a fund-raising letter. MEA’s president, announcing establishment of a think tank whose mission would be partly to counter the center’s research and policy work, said: "Quite frankly, I admire what they have done."

When the center quoted this, supplying the center’s name for the pronoun, the MEA filed suit, demanding to be given the center’s mailing list, and that it be given all funds contributed in response to the fund-raising letter. It also demanded that a permanent gag order be imposed to forbid the center from referring to MEA officials in future fund-raising letters. Welcome to the brave new world of speech regulation in Year One, A.M.F. — anno McCain-Feingold.

One aim of the political class in passing that campaign regulation — which is heading for a probably chastening rendezvous with the Supreme Court — was to restrict when and how issue advocacy groups can run any ad that so much as "refers" to a political candidate. In the same spirit, the MEA is asserting that a nonprofit public policy organization must get an opponent’s permission before quoting them.

The center, assisted by the Institute for Justice, a Washington-based public interest organization of libertarian bent, will easily defeat the MEA’s frivolous claim of "misappropriation." A real example of that offense would be Coca-Cola using advertising featuring, without Michael Jordan’s permission, a picture of him drinking a Coke. But Jordan drinking a Coke is not a newsworthy public event. The MEA’s president speaking at a press conference is, and people may report it without being sued.

Furthermore, the U.S. Supreme Court has held that fund-raising appeals by public interest organizations are not unprotected commercial speech. They enjoy full First Amendment protection because "solicitation is characteristically intertwined with informative and perhaps persuasive speech."

Another attempt to abridge First Amendment protections is being mounted by critics of Nike’s overseas labor policies. Nike responded to criticism by changing some policies but defending others in advertisements, press releases and letters to newspapers and athletic directors. Critics sued, saying that some Nike statements were false — and were commercial speech punishable under the law proscribing false "advertising." California’s Supreme Court sided 4-3 with the critics, saying: "Speech is commercial if its content is likely to influence consumers," and some consumers are concerned about labor practices.

But the U.S. Supreme Court may side with the dissenters. They, and the American Civil Liberties Union, reject the idea that there should be asymmetrical protections of different sides in public issue debates. That is, they reject the doctrine that because a business’ self-defense may have the incidental effect of helping it sell its product, the business’ self-defense is commercial speech and hence, unlike the speech of its critics, can be regulated — and can provoke costly lawsuits.

This doctrine will have a chilling effect on debate, pressuring businesses to forgo self-defense in order to avoid the threat of lawsuits. Thus do liberals continue to constrict public debate to further their purposes.

When the history of today’s liberalism is written, the writers may … tread lightly. Otherwise they may be sued by liberals demanding subordination of the historians’ rights of freedom of expression to some greater social good that supposedly would be impaired unless the historians’ speech is regulated.

You say it can’t happen here? Notice what already is happening.

George Will can be reached at The Washington Post Writers Group, 1150 15th St. NW, Washington, DC 20071-9200.

Talk to us

> Give us your news tips.

> Send us a letter to the editor.

> More Herald contact information.

More in Opinion

toon
Editorial cartoons for Tuesday, July 15

A sketchy look at the news of the day.… Continue reading

2024 Presidential Election Day Symbolic Elements.
Editorial: Perkins, in strong field, best for Marysville council

The fifth-grade teacher hopes to improve outreach and participation with neighborhood meetings.

State should have given ferry contract to shipyard here

The state of Washington’s decision to award its newest ferry construction contract… Continue reading

Some Democrats did question Biden’s fitness to run

Recently, a letter to the editor said that Democrats would not say… Continue reading

Dowd: Trump’s good-looking Cabinet making him look bad

Trump’s toadies are keeping the truth from him and making decisions on their own that dog the president.

Goldberg: Why Nebraska may make GOP pay for its awful bill

It will be tough for Democrats to win the Senate, but an independent union leader could tip the balance.

Comment: Trump era will prove consequential; but as he hopes?

Trump has taken far-reaching steps in foreign and domestic policy. What follows will write his history.

Authorities search for victims among the rubble near Blue Oak RV park after catastrophic flooding on the Guadalupe River in Kerrville, Texas, on Sunday, July 6, 2025. The half-mile stretch occupied by two campgrounds appears to have been one of the deadliest spots along the Guadalupe River in Central Texas during last week’s flash floods. (Jordan Vonderhaar/The New York Times)
Editorial: Tragic Texas floods can prompt reforms for FEMA

The federal agency has an important support role to play, but Congress must reassess and improve it.

2024 Presidential Election Day Symbolic Elements.
Editorial: Retain Escamilla, Binda on Lynnwood City Council

Escamilla was appointed a year ago. Binda is serving his first term.

A Volunteers of America Western Washington crisis counselor talks with somebody on the phone Thursday, July 28, 2022, in at the VOA Behavioral Health Crisis Call Center in Everett, Washington. (Ryan Berry / The Herald)
Editorial: Dire results will follow end of LGBTQ+ crisis line

The Trump administration will end funding for a 988 line that serves youths in the LGBTQ+ community.

toon
Editorial cartoons for Monday, July 14

A sketchy look at the news of the day.… Continue reading

Comment: Midterm messaging fight for working class has begun

And Democrats have a head start thanks to the GOP’s all-in support for cuts to the social safety net.

Support local journalism

If you value local news, make a gift now to support the trusted journalism you get in The Daily Herald. Donations processed in this system are not tax deductible.