Empty Words: The Supreme Court’s unequal view of speech

Today, another Supreme Court ruling with far-reaching implications for the rights of women in this country in the much-touted Hobby Lobby case will be decided. Last week’s ruling in McCullen v. Coakley striking down the 35 foot buffer zones in front of Massachusetts abortion clinics on First Amendment grounds, however, should continue to trouble us all: it is, in many ways, the triumph of unequal speech in American public life, investing more power and protection in the already-privileged at the expense of those with weaker voices.

It’s the latest in a long line. The Citizens United case, which construed campaign finance restrictions to be a burden on the speech of the wealthy, made the U.S. a pioneer in debasing speech to the point where it could be reliably quantified: into units of dollars. “Unlimited money” in national politics translated directly into “unlimited speech” for those able to write large cheques. The scrupulously neutral view of the conservative justices was that anyone could share in this right; but it becomes a bit like how laws against vagrancy apply to rich and poor alike. There is a question of power, privilege, and circumstance that is left studiously unconsidered in what “equality” actually means there.

Now, much the same has happened in McCullen.

Anyone who has spent too much time arguing in the comments sections of news websites is aware of the First Amendment fallacy routinely wielded with all the clumsiness of an unedited Wikipedia article. Someone claims that an attempt to moderate or argue with their views constitutes an assault on their “right to free speech,” or, perhaps, they are defending a beloved celebrity or TV show being criticised. Either way, what happens time and again is that a deeply ignorant and debauched reading of First Amendment protections is flung like monkey leavings, without nuance, into most online discussions.

What we are now faced with is a Supreme Court majority who thinks like these angry and defensive commenters. Slate legal analyst Dahlia Lithwick put it well when she said what she objects to “is that there appears to be a two-tiered approach to zoning out areas for speech we don’t want to hear. The right to be free from unwanted speech is reserved to only some.” She argues further that the conservative justices only seem to have empathy for those whose speech they agree with—such as anti-gay petition-signers—and none for, say, women trying to get an abortion.

It mirrors the culture of online comment wherein the most keenly felt “violation” of the First Amendment, no matter how legally spurious, is the personal one. Criticism of your deeply held beliefs, values, or your favourite movie or comedian; they all cut deeply. Far more than any harm your speech does to someone unlike yourself. This solipsism certainly seems to be an undercurrent in too many of the justices’ reasoning on these cases.

But it is bigger than that too, as evidenced by the fact that this Court is perhaps the most corporate-friendly in decades, interpreting many regulations as burdens on the First Amendment rights of corporate executives, including a ruling in Sorrell v. IMS Health that struck down a Vermont law preventing drug companies from acquiring patient prescription data; companies wanted this information to target advertisements more effectively.

In spite of the fact that commercial speech has always been treated differently because of its inherent profit-driven motive, Justice Kennedy performed his signature move and ignored power inequities in his consideration of the case, resorting to the vague platitudes beloved of online commenters: “Many are those who must endure speech they do not like, but that is a necessary cost of freedom.”

One is almost surprised he didn’t misquote Voltaire.

What free speech absolutists imagine the “marketplace of ideas” to be. (Painting: Raphael’s “The School of Athens”- 1504)

We adore these fuzzy notions of speech, but flinch from the contest of rights it creates, preferring the mythic “marketplace of ideas” and the fiction that it sorts the wheat from the chaff in public discourse. Such a vision asks nothing of us and, best of all, allows us to treat speech as a responsibility-free exercise. Say what you wish; the market will sort it out.

Such a powerless vision of speech, however, actually rides roughshod over the rights of others. Women do, after all, have a tattered but still extant right to an abortion; why was so little attention given to how their rights are consistently burdened, not just by the violently aggressive speech of furious pro-life protesters and proselytysers who deliberately seek such women out at their emotional nadirs, but also by state governments making it harder and harder for women to exercise this right?

Sexual harassment often involves speech; so does slander; so do threats; so do hate crimes, often as not. Most of these things remain legally actionable—if only barely, sometimes. Online harassment is notoriously difficult to prosecute and most police departments either fail to take it seriously or elect to play ping-pong with the FBI over jurisdiction.

What the valiant free speech absolutists of our time, both on the Court and in the comment sections of countless blogs and websites, fail to grapple with is the fact that we do not live in a truly equal society. Some of us do have more speech than others, more right to that power than others, creating cultural distortions that actually prevent people from exercising the full range of their rights. By protecting the speech of pro-life protestors (which in and of itself was never under threat by a buffer zone; they were allowed to say the same things from that distance), we have yet again chipped away at a woman’s right to choose—and, frankly, it is a right that some genderqueer people and trans men might need to avail themselves of as well. As our own Alexandra Brodsky argued, a history of very real violence and aggression is often sired by the “speech” of those protesters.

The pro-life protests mirror how online harassment, made up of the unlimited speech of the angry, has a chilling effect on those it targets. Women, by necessity, cannot speak on equal terms online with men; our speech is treated differently, burdened more heavily. It is not the fantasy level playing field that the conservative Supreme Court justices or free speech absolutists imagine.

The only restriction on speech that they could ever discern was one imposed by government. It is why Citizens United came into force: campaign finance was a government imposition. Same with Sorell: government regulation burdening corporate speech. The dramatic ruling in Shelby County v. Holder that struck down section 4 of the Voting Rights Act also played out on similar terrain: the federal government was seen to be imposing itself on local government. Of course, not all government impositions are created equally either: apparently the literally fenced-in “free speech zones” so beloved of American party-political conventions remains unchallenged by the Court and rated no mention in McCullen. Ignored in each case was how power was not abridged but made further entrenched, at the expense of those with less of it.

But there is no room or time for thinking about how we, as private citizens, can police each other’s rights. The way those abortion protesters can, in their way, act as a force with more immediate impact than aloof governments to impinge on the right of a person to have an abortion or access other reproductive healthcare. Power is not confined to obvious relationships that wear uniforms or titles; power exists between private citizens as well, cleaving to the invisible lines drawn by cultural beliefs, prejudices, and norms.

More than half of the Court continues to ignore this from behind the safety of their own gargantuan buffer zone. Ostensibly to preserve the image of a court unswayed by public opinion. But what of a Court swayed by ignorance of power?

Katherine Cross always enjoys dancing with Justice Kennedy in these articles.