Third Party & Independents Archives

Freedom of Speech The Supreme Court & The Progressive View

The problem with freedom of speech for liberal Supreme Court Justices seems to be that it allows too much freedom of speech. In what they believe is too many contexts. In two separate articles in The Federalist, Robert Tracinski - a Randian and atheist apparently - defends freedom of speech in all it’s forms; while Phillip Williamson, who clerked for Kethledge, gets into the weeds of several recent cases at the District level that potential nominee Raymond Kethledge has ruled on. And ruled in a way that gave reason and shelter to religious activity outside the immediate confines of the church.

Taken together, these two articles are a stunningly forceful reminder of what's at stake with the next Supreme Court nominee. Consider Tracinski's reporting on Justice Kagan's views as expressed in the recent NYT article on conservatives apparently "weaponizing" the First Amendment.

Justice Kagan's already viral comment in her dissent on Janus - "The First Amendment was meant for better things." - is her way of trying to contain free speech into limited and regulated areas of life. As Tracinski writes:

As the Left has gained more political power, it has championed regulations that have spread out like a fine net into every part of human life ... The more the government seeks to dictate all of our decisions -- what kind of cakes we have to bake, what medical advice we can offer, who gets to negotiate with our employer on our behalf -- the more they necessarily impinge on our freedom of speech. That is the Left's problem with First Amendment protections for people they think should be regulated to keep them in line.

The administrative state exists because progressives do not trust those who do not think the same way with running their own affairs, even in the most simple, basic ways. Like how thick the walls of your house can be. Or whether you have the right to build a treehouse for your kid. Or if your kid can sell lemonade at a stand.

Or whether you can run a charity service with volunteers that offer meals, for example, to the community.

Williamson delves into Kethledge's concurrence in Acosta v. Cathedral Buffet where the Department of Labor under the Obama Administration ruled that the church violated labor regulations by not paying volunteers who worked at the church's buffet where meals were provided. Here's Williamson on Kethledge's words in that decision:

Kethledge also wrote separately in Cathedral Buffet to admonish that the government "has no business regulating" the statements of a pastor to his congregation. He further wrote that "[w]hat is perhaps most troubling about the Department's position" was "the conceit of unlimited agency power that lies behind it. The power of a federal agency is no more than worldly. The Department should tend to what is Caesar's, and leave the rest alone." With that rhetorical tour de force, Kethledge armed future litigants in the fight for religious liberty in the face of intolerance and government overreach.

This is precisely what Tracinski is referring to. The administrative state inserts itself in every cursed detail of your civic life, regulating your behavior in accordance with the norms they construct, often beyond the reach of your elected representatives who nowadays prefer to hand off the details of regulations, rules, and laws to officials (and they are officials for all intents and purposes, make no mistake) of some department or agency.

And when it comes to the balance within the Establishment Clause between freedom of worship and the prohibition of an official religion (unlike the Church of England) Williamson writes:

Taken together, cases like Cathedral Buffett and Sunrise demonstrate Kethledge's understanding that religious belief is not something that happens solely inside a church; people of faith put their beliefs into practice through charities, businesses, and other endeavors, and the constitutional right to free exercise of religion applies to those activities as well. Protecting the right of religious believers to take their faith into the world has never been more important, as recent cases in the Supreme Court involving religious business-owners have shown.

Kethledge also recognizes that, while the Constitution's Establishment Clause prohibits the government from adopting an official religion, it does not require excluding all mentions of religious belief from public life.

It is important to remember every word of the Establishment Clause:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

There would be, under a Liberal/Progressive Supreme Court, a corralling and confining of speech in all its guises: economic, cultural, religious, political, philosophical etc. No other country affords the same protections to speech as America and her constitution do. Not a monarchy like the UK. Not any member of Western Europe whose member nations, once again, are balanced between nationalism and socialism. Not in Latin America where even a reasonably functioning state with a transparent judiciary and the freedoms that flow from that are beyond them save for all but a couple of members. Not in Japan - despite it's prosperity and cohesion - or the rest of Asia, nor in Africa. Not in Australia and New Zealand, or Canada where speech is increasingly curtailed by political identity.

Yes, America as well is moving towards a stand-off between a possibly socialist Democrat party and an increasingly nationalist GOP. But aside from the fact that that sort of stand-off may be an exaggerated media frenzy rather than the reality of voter views, we should remember how vital the Constitution is and how important Trump's nominee will be. That nominee will be ruling from the bench long after Democrats have declared and then undeclared themselves socialists. And long after the GOP has declared and then undeclared itself in favor of nationalist policies. And long after President Trump's tweets have provoked the Left into its raging activist and its creeping bureaucratic assaults on freedom.

Posted by AllardK at July 9, 2018 7:04 PM
Comment #428807

Thanks for providing us with the info about how crazy Kethledge is. His main chance of being appointed was if trAmp looked at the pictures of the candidates, and decided to appoint the whitest one. Kavanaugh was the favorite, so he’s probably a crook like all these religious nuts who don’t believe that the Constitution is the law of the land, that private contracts supersede the law, and of course that money is speech.

Posted by: ohrealy at July 9, 2018 8:42 PM
Comment #436937

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Posted by: Lara Sutton at January 18, 2019 11:27 PM
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