October 9, 2017 The Nation.^35
valve to let off toxins that would otherwise
find their way into violence. But America, with
its wide-open approach to hate speech, has a
steady flow of racist and homophobic violence,
not to mention sexual assault in a society where
the most virulent forms of misogynist pornog-
raphy are a click away on the Internet. Others
think that curbing virulent forms of speech
fosters tolerance and community, yet some
Islamic communities in Europe, where you can
be penalized for denigrating race and religion,
nevertheless often seethe with resentment in
ways rarely seen in America—though Trump is
doing his best to catch up on that score. So it’s
hard to draw a connection between the preva-
lence of hate speech and violence and whether
a society restricts or tolerates it.
As Abrams does not tire of pointing out,
from rejecting limits on speech offensive to
minorities to allowing virtually untrammeled
spending in elections, the United States is
out of step with virtually all of our fellow
democracies—a “weirdo” outlier, as Duke
law professor Stuart Benjamin put it on a
recent panel at Yale. But there are also signs
of considerable slippage for First Amendment
rights as traditionally construed in the United
States, where a recent Pew Research Center
poll registered 40 percent approval among
millennials for the proposition that “govern-
ment should be able to prevent people” from
making offensive statements about minorities.
Abrams and his generation of First
Amendment scholars and advocates have had
a significant effect on law and attitudes re-
garding free speech, often quite positive. But
at the same time, since they have dominated
contemporary First Amendment discourse
for decades, they have entrenched the no-
tion that it has gotten in the way of race and
gender equality and fair elections, and made
way for the diminishing zone of privacy. This
accounts for why the First Amendment has
enjoyed, over time, support from the right as
well as the left. Indeed, the right is increas-
ingly coming to “own” the free-speech terri-
tory once held by progressives, since the left
keeps falling for the bait that bigots like Milo
Yiannopoulos and Ann Coulter set out in dar-
ing it to block their campus appearances and
confer on them the status of victims. But it’s
also because so many free-speech advocates
have failed for years to make an affirmative
case for the First Amendment, not just as a set
of ground rules but as an essential element of
advancing social justice.
Free speech to the early ACLU activists
nearly 100 years ago—a diverse assortment of
lawyers, professors, and labor, religious, and
cultural leaders—was a vital tool for stand-
ing in solidarity with social movements and
advancing a progressive society. Indeed, the
ACLU’s first annual report decried “an array of
city ordinances and police regulations restrict-
ing free speech and assemblage” and declared
that “behind this machinery stand the property
interests of the country, so completely in con-
trol of our political life as to establish what is
in effect a class government—a government by
and for business.” It could be a tool for the right
as well, and long before (in one of many harbin-
gers of its current stance) the ACLU stood up
for the rights of neo-Nazis to march in Skokie,
Illinois, in the 1970s, the organization found
itself defending the German-American Bund.
But given its founding by a group of activists
involved in antiwar and left activism—includ-
ing Crystal Eastman and Roger Baldwin—the
ACLU was primarily allied with left-wing
causes, and most of its early clients were people
like textile workers, coal miners, anti-fascist
organizers, and birth-control pamphleteers.I
t’s this spirit of unapologetic First Amend-
ment defense—entwined with move-
ments for equality and social justice—that
is missing today, in particular among many
free-speech lawyers. Without it, there
could be no Movement for Black Lives, no
Dreamers, no Fight for $15, no Occupy Wall
Street, no vibrant resistance movement to
the right’s near-hegemonic takeover of the
federal government and more than 30 states
and its efforts to reestablish a “class govern-
ment”—and yet you would hardly know it
from the way that it’s often written about.
Infused with the spirit of a quote Abrams
uses from the late Saturday Review editor Nor-
man Cousins that “the one word most expres-
sive of democracy is ‘no,’ ” Abrams’s book is
a good example of this obstinacy. While he
acknowledges that there is “no doubt that a
price is paid, sometimes a serious one,” for
adherence to the First Amendment, what
that price is, and who is paying it, is largely
missing from these pages. If you’re a woman
or person of color feeling threatened by a
climate in which racist and sexist speech has
been made mainstream by the president of
the United States—and with pervasive and
frightening ripples through the rest of society,
seen in Charlottesville and coming soon to a
city near you—just toughen up and be thank-
ful for the founding fathers. If you think the
Koch brothers and their many counterparts
around the country are undermining the spirit
of democracy, roll up your sleeves and go to
Washington (or Albany or Sacramento) like
Mr. Smith. For a more thoughtful weighing
by free-speech advocates of the competing
interests at stake, and of the real-world impact
of free-speech guarantees, you’d be better offspending some time with Timothy Garton
Ash’s Free Speech or David Cole’s Engines of
Liberty, both published last year.
The limits of Abrams’s book are large-
ly a matter of tone, not policy. But where
campaign-finance reform is concerned, the
problem is one of substance. In his discussion
of it, he points to the fact that Donald Trump
was outspent by Hillary Clinton, but no fair
assessment of the power of money in politics
should look only at the presidential election.
In fact, the most striking disparity, as a new
paper by Rob Stein and Felicia Wong points
out, is at the state level, where, thanks to years
of investments by the Koch network and oth-
ers, the right’s control of state offices is at its
greatest point since 1928. ( Progressives were
focused elsewhere and are playing catch-up
only now.)
Citing Bernie Sanders, Abrams concedes
that money matters enormously in political
campaigns, and that the vast income disparity
in the nation inevitably favors the wealthy. But
his response expects progressives to counter
what the 1920s ACLU rightly called “class
government” on a wildly skewed playing field:
“Without limiting First Amendment rights,
Congress and state legislatures may adopt
the widest range of legislation to deal with
income inequality ranging from higher taxes
on the wealthy to higher minimum wages for
the least prosperous. Problems of low voter
turnout might be dealt with by legislative
measures aimed at making it easier to vote....”
That sounds nice, but it ignores the fact that
money isn’t thrown around only in elections,
but in lobbying too. According to Stein and
Wong, since 2005, over 75 percent of all the
money for federal lobbying has been spent
on behalf of conservative causes. There’s a
reason why the right spends so much money
on state elections and lobbying: Its priority
is to preserve its skewed advantage through
gerrymandering and voter-suppression laws.
When local governments, usually much more
blue than states as a whole, dare to pass a
minimum-wage, tax, or environmental law,
state legislatures often move to override them.
Justifying unregulated campaign and lobby-
ing spending as free speech undermines the
capacity of the majority of people to control
their own government and has contributed
mightily to the revulsion with a “rigged” sys-
tem that Donald Trump was able to exploit
in his campaign. Abrams does a good job of
channeling the brain of the First Amendment.
But its soul—the passionate, messy business
of using its guarantees to forge a more just
world—is what is missing from these pages.
It’s up to those in the coming generation to
breathe new life into it. Q