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The Right's First Amendment
The Politics of Free Speech & the Return of Conservative Libertarianism
By Wayne Batchis STANFORD UNIVERSITY PRESS
Copyright © 2016 Board of Trustees of the Leland Stanford Junior University
All rights reserved.
ISBN: 978-0-8047-9800-6
CHAPTER 1
Conservatism, the First Amendment, and National Review
What is "conservatism?" As foundational components of the contemporary political lexicon, the word "conservative" and its purported polar opposite "liberal" are bandied about with reckless abandon. In the rough and tumble of everyday American politics, these terms may be used to validate one's policy preferences, to denigrate another's, or merely to represent one's preferred political team. In the United States, there is, of course, no mainstream political party that adopts these words as their own — there is no Liberal Party or Conservative Party per se as in many countries throughout the world — but there might as well be. For even as the two major parties continue to evolve and adapt to their changing constituencies, today the Democratic Party is generally characterized as liberal and the Republican Party is understood to be conservative. By extension, many members of the judiciary, appointed by these very party politicians, must endure these labels as well, even when such labels are unwelcome.
The word "conservative" does, of course, have a core meaning. The American Heritage Dictionary defines conservative as "favoring traditional views and values; tending to oppose change. Traditional or restrained in style. Moderate; cautious." However, it also offers these definitions: "Of or relating to the political philosophy of conservatism. Belonging to a conservative party, group, or movement." Thus, when a judge is identified as conservative, it may suggest that her decisions convey a greater degree of respect for tradition, restraint, and caution than is the norm for judges in her class — the median judge. However, use of the identifier "conservative" might also merely indicate that that particular judge is aligned with the Republican Party, that she was nominated by a Republican president, or that her judicial decision making is perceived to be tainted by an ideological bias.
One thing is clear: Conservatism is not monolithic. Political conservatives, just like liberals, do not always see eye-to-eye. As already alluded to, there are readily identifiable tensions that exist among conservatives, the most familiar being the sometimes-contradictory emphasis on economic freedom lauded by free-market conservatives and deeply rooted tradition celebrated by moralistic conservatives. These two ideological camps largely defined the conservative landscape in the years following World War II, a period that marked the emergence of a coherent conservative movement in America. These two strains of conservative thinking do not necessarily conflict — and may indeed be complementary. David Brooks recounted how when he joined the staff of National Review in 1984, "the magazine, and the conservative movement, was a fusion of [these] two different mentalities." Although Brooks argued that the "traditional conservative" is "less familiar now," he described how these two strains of thinking could in fact support each other. "The economic conservatives were in charge of daring ventures that produced economic growth. The traditionalists were in charge of establishing the secure base — a society in which families are intact, self-discipline is the rule, children are secure and government provides a subtle hand."
Certainly, conservatism today may be broken down into more than just two ideological camps, and the subtle differences can have profound implications for the First Amendment. The awkward but politically beneficial "fusion" of traditional conservatism (what I will refer to as moralistic conservatism) and economic conservatism (heretofore referred to as free-market conservatism) would promote a breed of conservatives that would come to accept a bright line between the two types of individual freedoms. Some freedoms — those curtailed by economic regulations — were deserving of a fierce defense against overzealous government; other individual freedoms — curtailed by moralistic regulations intended to ensure the endurance of traditional societal values — demanded interference from the very same government.
Frank S. Meyer, who joined forces with William F. Buckley as an editor at National Review during its early days, is an example of a thinker and scholar who found this bright line to be essential. While accepting free-market conservatism, Meyer rejected the outright libertarianism of Ayn Rand and believed that economic freedom needed to be grounded in a stable social order. Conservative intellectuals like Meyer saw the need for balance, noting in 1969 a danger from "untrammeled libertarianism, which tends as directly to anarchy and nihilism as unchecked traditionalism tends to authoritarianism." However, Meyer's nuanced view — accepting a selective, and tempered, incorporation of both individual freedom and moralistic restraint — stood in sharp contrast with that of other thinkers who were deeply uncomfortable with the bifurcation of liberty. One of the most notable objectors was the deeply influential economist, F. A. Hayek. Hayek's classical liberalism, with its emphasis on expansive individual liberty, fits quite well with today's free-market conservatism but would not countenance the restraints on individual liberty that typically accompany moralistic conservatism.
However, many conservatives — particularly those who wanted to facilitate the emergence of a vital and potent conservative movement in America — were eager to cast a broader net. They observed the pragmatic benefits of joining free-market ideals with moralistic ones. And the success of the efforts of Buckley, Meyer, and others in doing so cannot be denied. They fused a movement that has been credited for the Barry Goldwater presidential campaign and, ultimately, the presidency of Ronald Reagan. Yet fissures in this marriage of convenience remain.
The Voice of Conservatism in the United States: National Review
One approach to understanding conservative political opinion outside of the Court is to look to media sources most likely to reflect the contemporaneous sentiment of political conservatives. Perhaps no other source of opinion stands as prominently as a barometer of mainstream American conservative political thought than National Review. The publication describes itself as "America's most widely read and influential magazine ... for Republican/conservative news, commentary and opinion." It is widely "recognized as the intellectual fountainhead of modern conservatism." Political scientist Ken Kersch, who has utilized the publication to assess the development of conservative constitutional thought, characterizes it as "postwar conservatism's premier magazine," one that "proved crucial in cultivating intellectual talent and in disseminating conservative political ideas." From its inception, the magazine effectively sought to consolidate the disparate — and at times conflicting — strains of thought of the right. Blending humor and penetrating commentary, National Review provided a single stream of conservative opinion, not merely for the intellectual elite, but for a new generation of middle-class suburbanites, many of whom served in World War II. It helped build the conservative coalition we know today "by giving audience to the views of traditionalists, libertarians, anti-Communists and neoconservatives." Because the magazine's influence spans six decades — first published in 1955 — it is a particularly incisive indicator, not only of where current mainstream conservative opinion on free-speech matters lies, but how such opinion has evolved through time.
Such change came into high relief in 2001. Two articles in National Review, separated by just two months, were authored by two respective editors-in-chief — one young, one old. They presented starkly different visions of the First Amendment. The latter piece was penned by the iconic National Review founder William F. Buckley, Jr., who "[m]ore than anyone else, ... has come to embody conservatism itself." "He" — according the younger editor — "made the term 'conservative' respectable." In his article, Buckley derided those who would question the constitutionality of the political spending limits in the most recent round of proposed campaign finance reform. He cuttingly aligned First Amendment challenges to the legislation with "[o]ddball interpretations of the Constitution [that] are the licensed property of constitutional ultramontanists, the kind of people who grew up on the mother's milk of the American Civil Liberties Union." While Buckley implicitly expressed support for those who sought to "fight back" against a surfeit of government regulation, he opined, "in this case, the weapon being used by opponents of McCain-Feingold is a view of the First Amendment's protections that is historically disreputable."
Strikingly, just two months earlier, the current editor of National Review, Richard Lowry, wrote a piece sharply critical of Republican Senator John McCain and his campaign finance reform legislation. Lowry, unlike Buckley, exhibited no signs of reluctance when it came to the First Amendment arguments against the law. Lowry pointed to the "constitutional vulnerability of McCain's efforts" and argued that "[a]s the net of regulations gets wider and wider, the First Amendment problems become starker and starker." These two pieces were written almost ten years before the Supreme Court's Citizens United decision; today there could be little doubt as to which position — Mr. Buckley's or Mr. Lowry's — is a better snapshot of mainstream conservative thinking about the relationship between campaign finance restrictions and the First Amendment. The view that campaign finance regulations conflict with the First Amendment has become conservative conventional wisdom.
One might be tempted to view campaign finance reform as just an anomalous exception to the otherwise prevalent conservative norm adopting a narrow conception of the First Amendment. Lowry himself has acknowledged that American conservatives are not always an entirely cohesive and coherent group. He explains: "We live in a time of intraconservative fights. People ask, 'Are you a neoconservative, a paleoconservative?' The appropriate answer ... is, 'I'm a Bill Buckley conservative.'" However, on the First Amendment, this appeared not to be the case. Indeed, as we shall see, constitutional objection to campaign finance reform is not just a tale of an idiosyncratic few who dared to diverge from the conservative mainstream. Nor is it a tale of a single-issue shift within the domain of expressive freedom that anomalously strays from an otherwise narrow vision. The contrast between Buckley and Lowry is emblematic of a much larger ideological shift in constitutional meaning. When Rich Lowry took over as editor of National Review in 1997, he was a youthful 29 years old and only the third to fill Buckley's shoes. His broader vision of the First Amendment represents a perspective that is increasingly the status quo among conservative thinkers. Lowry's view reflects a changing of the guard when it comes to the conservative political perspective on the First Amendment — one that runs parallel with changes taking place among the conservative wing of the Supreme Court.
Examining the six-decade history of National Review — focusing exclusively on articles substantively addressing free-speech rights — we see a striking pattern. Over this time period there has been a consistent, but gradual, decline in the ratio of pro–speech-regulation articles to pro–free-speech articles. In the first decade of publication, between the years 1955–1964, 73 percent of such articles expressed a pro–speech-regulation sentiment, between 1965 and 1974 the number was 58 percent, while during the periods from 1975 to 1984 and 1985 to 1994 pro–free-speech and pro–speech-regulation articles reached an equilibrium of 50 percent each. The period from 1995 to 2004 saw a decline of the percentage of pro–speech-regulation articles to 40 percent, and from 2005 to 2014 the percentage has fallen dramatically to just 13 percent.
The results reveal a steady shift among conservative thinkers and commentators away from a narrow understanding of free speech and toward a more expansive one. Indeed, 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. The percentage of pro–free-speech articles from the magazine's inception to the most recent decade examined has increased a stunning 60 percentage points, from 27 percent to 87 percent. These figures support the conclusion that mainstream conservative political opinion concerning the meaning of the First Amendment has changed substantially in the past half century (Figure 1).
PERCENTAGE OF NATIONAL REVIEW FIRST AMENDMENT–RELATED ARTICLES THAT ARE PRO–SPEECH REGULATION
A Conservative Typology
Although far from an exhaustive list, for purposes of this study I have identified four strains of conservatism that appear to exert significant influence in guiding conservative convictions with regard to the First Amendment: moralistic conservatism, libertarian conservatism, free-market conservatism, and commonsense conservatism. This typology is not an attempt to capture a holistic portrait of any individual conservative thinker or group of thinkers; it merely seeks to distill and identify some of the most relevant core beliefs and recurrent themes that underlie the politically conservative approach to the First Amendment.
For the purposes of this study, I have defined moralistic conservatism as an ideology that places legal primacy on the promotion and maintenance of the three moral values of loyalty, patriotism, and sanctity. According to moral foundations theory, these values represent three of the (at least) six psychological systems that make up the foundation of morality for cultures across the globe. As moral psychologist Jonathan Haidt explains, these three moralities "show the biggest and most consistent partisan differences. Liberals are ambivalent about these foundations at best, whereas social conservatives embrace them." The other three moral foundations — care, liberty, and fairness — more commonly cross ideological boundaries and are therefore, for our purposes, not appropriately classified as a part of a uniquely conservative moralism.
Moralistic conservatism may advocate balancing away freedom of expression where such freedom is seen as an impediment to achieving morally important goals. An example of this approach might be found in certain "indecency" cases in which slim majorities of the Supreme Court have at times been willing to uphold restrictions on distasteful speech where the countervailing interests are deemed sufficient. They might likewise support the view that entire categories of immoral expression do not fall within the ambit of the First Amendment — as the Court has concluded in the area of so-called obscene speech.
Libertarian conservatives were the primary advocates of free speech in the late nineteenth century. Yet, for them, freedom of expression was just
one aspect of the personal liberty "to be free in the enjoyment of all faculties." Courts were expected to protect this freedom as part of their obligation to prevent untrammeled majorities from violating individual rights. [Thus, they] did not separate the system of free expression and the system of private property.
From the perspective of moral foundations theory, the most influential psychological system for political libertarians is, not surprisingly, liberty. Both liberals and conservatives generally share a concern for liberty as a moral foundation, but the liberties emphasized can be quite different.
(Continues...)
Excerpted from The Right's First Amendment by Wayne Batchis. Copyright © 2016 Board of Trustees of the Leland Stanford Junior University. Excerpted by permission of STANFORD UNIVERSITY PRESS.
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