Harvard Progressives Botch the First Amendment

RNLA campaign finance blogger Paul Jossey has a piece in the Federalist arguing how far afield the Harvard law faculty has come from the original understanding of the First Amendment. These professors wield enormous influence in politics, policy, and even popular culture, yet they interpret the First Amendment in a way unmoored from history, precedent, or social science.

The First Amendment, as the words imply, is a simple restriction on government—on democracy. As political scientist John Samples states:

The First Amendment offers a classic statement of negative liberty: it enjoins the government from abridging individual freedom. It does not ‘empower’ the individual to achieve some good. It does not give the individual the means to speak or to persuade others. It does not direct the government to use speech . . . to some social end. It does not require ‘good speech’ or ‘polite speech’ or ban ‘negative speech.’ 

But all this freedom from government is too much for Harvard professors Larry Lessig, Larry Tribe, and Cass Sunstein. Our most important freedom, our ability speak, advocate, and criticize government, should be curtailed and controlled by government because it’s not “fair.”

Tribe argues we should ignore the First Amendment’s mandate and insert ‘values’ into the First Amendment that would limit its liberty directive and make it more egalitarian. Cass Sunstein actually wrote a book titled “Democracy and the Problem of Free Speech.” And Lessig uses his privileged position as a Harvard professor to travel around the globe regaling raptured audiences with tales of how average folks like him are getting hosed.

The problem is they are completely wrong.

The founders’ envisioned the First Amendment as a rampart of liberty against the government. As Madison stated when he introduced it: “the people shall not be abridged of their right to speak, write or to publish their sentiments and the freedom of the press, as one of the great bulwarks of liberty shall be inviolable.” The Founders weren’t concerned with rich patrons financing press operations or some pamphleteer drowning out the rest by flooding the streets with ten times more pamphlets. Popular government is what kept them up at night.

Nor does social science support their cause. The professors claim money and the speech it enables ‘corrupts’ the system allowing the rich to have their way. Those that study such things disagree. The American Political Science Association in 2013 stated: “Most research suggests that there is a weak connection between campaign spending and election outcomes or between sources of campaign funding and roll-call–voting behavior.” Political scientist Seth Masket asserts, “To some extent, the money gives [the rich] access to politicians, which isn’t nothing. But politicians are wary of boldly adopting a wealthy donor’s views . . . The super wealthy are certainly paying a lot of money into the political system these days, but it’s far from clear what they’re getting out of it.”

Bob Bauer, a leading Democrat lawyer, whose eye for empirical reality frequently puts him at loggerheads with reformers, put itthusly: “The challenge for Cass Sunstein and others is to explain how this case [about corruption] can be put forward with evidence that matches up to the theory.” In the congenial world of academic disputes, that is tantamount to a severe rebuke.

In the end, what the professors are left with is an ideologically infused view of the First Amendment based on nothing outside their own conceptions of what’s “fair”—or to be Harvard about it, their arguments are ipse dixit.

It’s no secret an egalitarian-infused political speech milieu infused would benefit and raise the influence of those who spend their days publicly writing, pontificating before Congressional panels, being quoted in the media, and so on. In short exactly the kind of thing these professors spend their time doing.

Perhaps those of us not provided those types of elite platforms shouldn’t be surprised the professors are trying to gain influence at the cost of those they disagree with. But they should at least fortify their arguments with some colorable evidence.