Religious speech gets shorted again

Today, the U.S. Supreme Court denied a petition asking whether a transit authority can reject a Christmas ad for display on its buses just because the ad is religious. This is an easy question, and it’s a shame the Court denied the petition. Justices Gorsuch and Thomas, though, did write a short consolation prize, saying what they would have said if they granted the case: namely, the government can’t discriminate against a religious viewpoint on a topic while allowing other non-religious viewpoints.

The sides of buses are a frequent and heated battleground for free speech. Transit authorities often draw revenue by selling blank space on their buses. In this case, Archdiocese of Washington v. Washington Metropolitan Area Transit Authority, the Catholic Church tried to place a Christmas ad on D.C. buses with the silhouettes of a few shepherds and the phrase “Find the Perfect Gift.” The transit authority rejected the ad.

    The key fact here was that the transit authority allowed other ads about Christmas. All the parties, and the various courts, agreed that Christmas has a “secular” component and a “religious” component. Hence, Wal-Mart and Macy’s and every other retailer could slap their ads on buses across the metropolitan area clamoring about how to celebrate the holiday (by buying their stuff). But a religious advertiser could not express their views on how to celebrate the holiday in that same space, the only difference being the religious nature of the content.

    The Supreme Court has repeatedly stated in other settings that similar restrictions constitute viewpoint discrimination. If the government allows speech on a particular subject matter, it cannot then restrict speech on that topic simply because the viewpoint is religious. That’s true even if the proposed speech drips with religious sentiment–such sentiment deserves equal footing under the First Amendment.

    This isn’t to say that D.C. buses can now be overrun with religious zealotry. D.C. could lawfully limit advertisements to only commercial ads (they don’t). And of course they could always just forego the revenue and say no ads at all. But if the government opens up a space for expression, it must do so even-handedly.

    Ban on inquiries into wage history upheld

    I haven’t read the decision in much depth yet, but the Third Circuit Court of Appeals this week upheld a Philadelphia ban on employer inquiries into job applicants’ wage history.

    This is part of a troubling trend. More and more governments are banning inquiries into information that they don’t want people to use. Seattle and other cities have begun banning criminal background checks by landlords. Portland is set to pass a law that bans landlords from asking about a person’s immigration status. Other municipalities have passed and likely will pass more laws banning inquiries into wage history. The Third Circuit opinion will make it much harder to challenge this kind of speech restriction.

    The Third Circuit decision held that the wage inquiry ban should be subject to the “commercial speech” test. In First Amendment jurisprudence, courts are more forgiving of restrictions on commercial speech than other types of speech. This doctrine, however, is meant to be reserved for advertisements, not any speech that happens to be related to a possible transaction. Here, the Third Circuit extended the rule to include questions asked in the context of an anticipated transaction–an employment contract. This is an unfortunate expansion of a doctrine that arguably shouldn’t exist at all. The First Amendment doesn’t distinguish between commercial and other types of speech, and neither should the courts.

    Climate crisis or censorship crisis?

    Yesterday, the Chair of the U.S. House Select Committee on the Climate Crisis wrote an ominous letter to the CEO of Google. For the second time, the Chair is leaning on Google to police and remove “dangerous climate misinformation” on YouTube. The letter doesn’t threaten direct legal action against Google, but it nonetheless raises serious concern because it runs so counter to the free speech tradition and the value of a robust internet.

    According to the Chair, “YouTube has been driving millions of viewers to climate misinformation videos every day, a shocking revelation that runs contrary to Google’s important missions of fighting misinformation and promoting climate action.” The Chair states her own unequivocal commitment to “promoting ambitious federal policy that will … eliminate barriers to action, including those as pervasive and harmful as climate denial and climate misinformation.” It’s hard not to see the veiled threat here.

    Note the letter’s subtle casting of the consumers of information as passive actors that must be protected, rather than rational actors who choose what information to consume, a choice they’re entitled to make. She says “YouTube has been driving millions of viewers to climate misinformation” and that Google should “correct the record for millions of users who have been exposed to climate misinformation.” This language strips accountability and action from the viewers, as if they are a captive audience held down and forced to view climate denial videos with eyelid clamps like a scene from A Clockwork Orange. But if that content is promoted and viewed, that’s because there’s a consumer demand for it. The passive language used in the letter exemplifies the paternalism that often lurks behind censorship: for their own welfare, we must protect the public from information they wish to consume.

    Note also the absolutism woven into the letter. Google cannot both be committed to climate action and committed to an open culture of public discourse. In the war for humanity’s survival, one priority must dominate above all others.

    The letter also relies on the tired tactic of impugning speakers’ motives. Anyone who expresses “climate misinformation” on YouTube just wants “to protect polluters and their profits at the expense of the American people.” It’s impossible for an absolutist to consider that views opposed to her own might be sincerely held. Plus, research has shown that political views frequently do not line up with individual self-interest. Only a shallow thinker or someone with an agenda assumes a political viewpoint is rooted in a selfish motive.

    As for the constitutional implications of the letter, there is no question that the federal government cannot impose on Google the duty to remove “climate misinformation” or “climate denial” content. False speech is not exiled from the sanctuary of First Amendment protection. Of course, some false speech can be penalized, such as libel, slander, or fraud. But these are circumstances where there’s some other legally cognizable harm associated with the false statement for which recovery is warranted. There is no general rule that false speech is unprotected.

    Government should never be in the position of arbitrating truth. Particularly in the context of hotly debated political controversies, allowing government to label one side as gospel and penalize dissidents opens the door to legally enshrined orthodoxy. As Justice Robert Jackson said 80 years ago: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” That’s what the power to ban “climate misinformation” entails.

    Indeed, government refereeing of truth will almost always shade toward discrimination against disfavored viewpoints. For example, there is “misinformation” out there on both sides of the climate debate. Those who peddle wild doomsday predictions are just as unhinged as those denying the realities of climate change. Yet the Chair does not propose to censor such misinformation.

    When I see such zealous effort to shut someone up, I can’t help but ask myself why the censor is so afraid. The targeting of this speech is likely only draw attention to it. Why worry about the hacks? I’ve always believed what John Milton expressed centuries ago in the Areopagitica: “Let [Truth] and Falsehood grapple; who ever knew Truth put to the worse in a free and open encounter?” Of course, that doesn’t mean that falsehoods lack convincing power, but truth in the end has the edge. Rather than pick the winner in advance, we do much better by letting truth emerge through open debate, bloodied but victorious.

    Supreme Court hears vital freedom-of-religion case

    Today, the Supreme Court heard  the most important case on the intersection of religion and education to arise in decades–Espinoza v. Montana Department of Revenue. A few years back, Montana had passed its first school-choice program, a tax-credit scheme that allowed a small tax credit for donations to scholarship programs that helped kids afford private school.

    As in any state, many of Montana’s private schools are religious. Right after the state legislature passed the tax-credit statute, the Montana Department of Revenue promulgated a rule that immediately gutted the program by forbidding students attending religious schools from receiving scholarship money.

    The Department based its rule on Montana’s Constitution, which says the legislature can’t “make any direct or indirect appropriation or payment from any public fund or monies . . . for any sectarian purpose or to aid any church, school,” etc. Plenty of states have very similar “no-aid” clauses. Revenue claimed that scholarships for religious students under the tax-credit scheme violated the “no-aid” clause.

    It’s worth taking a moment to consider how bizarre this argument is. These scholarships are funded by private donations–the money never enters a public coffer. Yet Revenue thinks such donations would constitute state aid to religion because the donor gets a tiny tax credit (up to $150) for the donation. Underlying this argument is the strange notion that any money the government declines to collect from you is still the government’s money.  This would mean, for instance, that every charitable donation eligible for a tax deduction would likewise constitute a government appropriation. Revenue’s argument has always looked to me like an extremely weak pretext for blatant discrimination against religious students.

    So Kendra Espinoza and a few other parents with kids at religious schools sued the Department of Revenue, claiming, among other things, that Revenue’s rule violated their free exercise of religion under the First Amendment. Kendra won at trial, and then lost spectacularly at the Montana Supreme Court. In fact, the Montana Supreme Court did something even worse than the Department of Revenue–it invalidated the entire tax-credit program, such that even students at secular private schools could no longer receive scholarship assistance.

    Thankfully, the Supreme Court took up the case, and they heard oral argument today. (My colleagues and I filed an amicus brief with the Court in support of Kendra).

    The oral argument transcript shows a Court divided along the typical ideological lines. The liberal justices seemed preoccupied with standing–whether the petitioners had the right to sue. One justice implied that only taxpayers (who have a financial interest because of the tax credit) and schools (who receive the scholarship money) should have the right to sue. This is a weird take, given that families and students are obviously the intended beneficiaries of the scholarship program.

    A number of the justices discussed a odd quirk about the Montana Supreme Court’s decision. The basic question they raised is this: since the Montana Supreme Court took the scholarship program away from everyone, are petitioners now being treated equally? But the sole reason the Montana Supreme Court struck down the program was to prevent religious students from receiving scholarship. A government action taken for a discriminatory reason is, well, discriminatory. If the legislature had excluded religious students when it enacted the program, the program would still stand. And if the legislature tried to enact the same program, providing equal treatment to religious and secular students alike, the Court would strike it down. That’s discrimination based on religious status–pretty straightforward.

    One justice cited to James Madison’s famous Memorial and Remonstrance Against Religious Assessments, arguing that the founders wouldn’t have wanted public funds flowing to religious schools like this (again no public funds were flowing to Montana religious schools under this program, but why let accuracy get in the way of a good narrative). That’s a terrible misreading of Madison. The Memorial and Remonstrance was an attack on preferential aid to religion, not to a program that provided public benefits to all groups, including religious ones. The difference is vital. Can the government deny churches police protection, fire protection, sewer connections, electrical service, or any other public benefit on the grounds that the government would be providing indirect public funding to religious institutions? Surely not. In fact, that’s exactly what the Supreme Court said in a recent case called Trinity Lutheran, where Missouri denied a church daycare access to a government program that helped renovate playgrounds.

    There is a difference between Trinity Lutheran and this case, arguably, which is that here the money goes more directly to religious indoctrination, not something secular like playground materials. But at bottom, public funding is fungible. Providing police protection and other general public benefits obviously makes it easier for a religious institution to fulfill its religious mission.

    This case should be an easy one. The government offered a benefit to all private schools. To include religious schools doesn’t “establish” religion. It just treats religious groups equally, as the Constitution requires.

    A happy ten-year anniversary to the case people love to hate

    This month marks the ten-year anniversary of one of the most despised and misunderstood Supreme Court cases: Citizens United v. Federal Election Commission.

    I love Citizens United. It stands as perhaps the most important First Amendment decision of the last decade. Yet it’s come to symbolize the illicit marriage between money and power, while what actually happened in the case is largely an afterthought. I remember encountering an enraged signature-gatherer outside a Trader Joe’s a few years ago who was engaged in one of the many campaigns to amend the Constitution to put an end to Citizens United. I thought he might have a coronary when I told him that it was one of my favorite Supreme Court decisions. I deeply regret not asking him if he could rehearse for me the facts of the case. Maybe he would’ve surprised me.

    So what did Citizens United actually say? The law at issue banned corporations from using general treasury funds for electioneering, with civil and criminal penalties for corporations that spent money to speak on pressing political issues of the day. The Supreme Court said that a small-time political organization (that happened to be incorporated), Citizens United, could not be banned from publishing a film critical of a presidential candidate. It’s hard to find speech of a higher order of significance than that.

    Citizens United held that government cannot ban political expenditures just because people choose to speak through the corporate form. This is a classic example of an old rule–government cannot censor speech based on the identity of the speaker.

    Much of the fury over Citizens United is premised on a guttural abhorrence for the corporation. But corporations are just groups of people who have chosen to organize through a particular structure. And most don’t realize that the law at issue in Citizens United also banned unions from using general treasury funds for electioneering communications.

    Much of the popular criticism of the case that I’ve seen seems to believe that Citizens United was the first case to establish that corporations had First Amendment rights. It wasn’t. In fact, not even the dissenters in the case would’ve held that corporations lack such rights. That was an uncontroversial and settled matter. And it should be obvious as to why. If corporations don’t have First Amendment rights, then the New York Times doesn’t have First Amendment rights, along with many other media organizations. (I’ve heard the excuse that freedom of the press would still protect media organizations independently, which is a misunderstanding of the freedom of the press, which doesn’t offer greater speech protections to media than non-media).

    Citizens United gets a bad break, and I wish it a happy anniversary.

    A blatant campaign-finance boondoggle

    The City of Seattle is poised to pass a plainly unconstitutional campaign-finance law later this month. The bill would limit contributions to political action committees that are not controlled by or connected to a candidate to $5000 per election cycle. The Ninth Circuit Court of Appeals, which would govern the outcome of any litigation, has already said several times that limiting contributions to independent PACs (meaning independent of a candidate’s campaign) violates the First Amendment.

    The rationale is pretty straightforward. Any limit on political spending is a limit on speech, so it must satisfy the First Amendment. In Buckley v. Valeo, the United States Supreme Court said that contribution limits directly to candidates are usually okay because they (arguably) reduce the likelihood of corrupt quid pro quo exchanges between candidates and donors. But Buckley struck down limits on independent expenditures (meaning expenditures that aren’t donated to a candidate but speak independently for or against a candidate). Independent expenditures, unlike direct contributions, are not coordinated or controlled by the candidate, so there is less of a risk that an independent expenditure is actually an illicit quid pro quo. Since limits on independent expenditures restrict speech without actually doing anything to prevent corruption, they violate the First Amendment.

    Contributions to PACs that engage in independent expenditures are basically the same as independent expenditures–there isn’t a direct connection to a candidate, so there simply is no genuine risk of corruption. The City of Seattle probably knows this, and they either don’t care or they hope to change the state of the law. I look forward to the forthcoming judicial rebuke.

    Really, I find the entire premise behind limits on either contributions or expenditures to be highly dubious. While there are no doubt a few instances where a contribution to a candidate is given in direct exchange for some future favor once the candidate wins office, the vast majority of contributions are not that. They’re donations to support a candidate because his platform reflects the donor’s policy preferences. Most corrupt exchanges of money, when they do occur, almost certainly occur under the table and outside the context of highly regulated campaign contributions. Thus, contribution limits penalize a wide range of legitimate political speech to get at a vanishingly small (and unknowable) number of malefactors.

    Defenders of campaign-finance laws tend to emphasize the huge amount of political spending as per se evidence of the need for reform. (When you compare the amount of political spending to other spending in the economy, it becomes quite clear that the amount of money in electoral politics simply isn’t that much). This claim that money in elections is fundamentally bad has always struck me as bizarre. That money is spent by both sides on political speech that informs the public. Why should we assume that this is a bad thing? Of course all political speech has a partisan aim–to convince voters to vote for so-and-so. But the information hardly compels voters to do so. At the end of the day, it seems much better to have a public informed by politically motivated communications than to have less information.

    Campaign-finance advocates also like to point out that candidates who receive the most money tend to win. Again, it isn’t obvious why this is a bad thing. It seems rather obvious that popular candidates will attract both dollars and votes, not because they get lots of money, but because they’re popular. This is a classic failure to acknowledge the difference between correlation and causation. To date, no significant evidence has surfaced demonstrating that dollars cause votes.

    And what about the concern over undue influence? Of course, politicians may be responsive to high-dollar donors. But again, this is a correlation issue. The NRA gives money to candidates who support the NRA’s  policy preferences. When the candidate reaches office and fights gun control, is it because of the NRA’s support, or was the NRA’s support prompted by the candidate’s pre-existing policy platform? Over and over, the deeply felt convictions of campaign-finance advocates seem to rest on a house of cards.

    In any case, even if risk of quid pro quo corruption is a valid reason to restrict speech, Seattle’s bill goes well beyond that rationale. PACs engage in core political speech, as do the individuals who donate to them. That speech merits protection.

    School choice at the Supreme Court

    Another school funding case is knocking at the U.S. Supreme Court’s door. This case, Espinoza v. Walborn, hales from Montana, where the state’s fledgling school-choice program was killed moments after it left the crib. The Court now has a chance to revive it and land a major victory for educational choice across the country.

    Montana’s first school-choice law, passed in 2015, took the form of a tax-credit scholarship program. If a taxpayer donated to an approved scholarship organization, she could claim up to $150 of the donation as a tax credit. The scholarship organizations then dished out scholarships to help parents afford to put their kids through private school.

    Then the Montana Department of Revenue gutted it. The Department promulgated a rule that none of that scholarship money could go to religious private schools. This basically killed the program, since the vast majority of private schools in Montana–and in most states–are religious schools.

    The Department claimed that the state constitution prohibited the scholarship dollars from going to religious schools because of the state ban on indirect public aid to religious schools. This is an absurd argument. The scholarship funds are privately donated dollars–they never touch a public coffer. The fact that someone can claim a tax credit hardly means that the donation becomes “public funds” because of diverted revenue. Such an argument, extended to its logical conclusion, would mean that all money is the government’s, and when it graciously declines to tax us, that extra money of ours is in fact part of the public fisc.

    Nonetheless, the government prevailed at the Montana Supreme Court. In fact, the Court did the state one better–they just invalidated the whole tax-credit program, even for the few parents who might use a scholarship to send their kids to a secular school.

    It’s a terrible blow to parents in Montana trying to find some genuine variety in education. But it also gives the Supreme Court a chance to right a wrong that has been festering in education policy for well over a century. The Supreme Court should hold that barring religious schools from accessing a neutral and generally available funding program violates the Free Exercise Clause and the Equal Protection Clause of the U.S. Constitution.

    The portion of Montana’s state constitution that laid the tax-credit program in an early grave is known as a Blaine Amendment, named after 19th-century Congressman James Blaine. In 1875, Blaine proposed a federal constitutional amendment that would, among other things, prohibit states from funding “sectarian” schools with public money. Blaine’s federal amendment failed, but many states passed state-level amendments to the same effect, and Congress managed to make inclusion of such amendments a condition of statehood for new states entering the union.

    The history is clear that these amendments are rooted in anti-Catholic bigotry. As the United States transitioned to a public school system, public schools had a distinctly Protestant flavor (often state-endorsed or even state-forced). Catholic migrants therefore began forming and attending private religious schools of their own. The backlash was fierce, and anti-Catholic sentiment often expressed itself in hostility to Catholic schools. James Blaine’s proposed amendment was a key manifestation of this bigotry.

    And the bigotry lives on today. Ironically, however, now opponents of genuine choice in education have retrofitted Blaine Amendments as a partisan weapon to combat vouchers, tax credits, and education savings accounts. Montana’s law is only the most recent victim. If the Supreme Court doesn’t grant this case and strike down these state laws rooted in religious bigotry, it won’t be the last.

    Expression at the polls

    Last election, Jillian Ostrewich drove to a polling place at a Houston rec center, expecting to vote. But she made the mistake of wearing a “Houston Fire Fighters” t-shirt. An election worker confronted Jillian, insisting that she couldn’t vote unless she turned the offending shirt inside out. The rationale: a measure on the ballot was related to firefighter pay, and the shirt was related to firefighters.

    Tony Ortiz suffered a similar fate in Dallas. Tony’s crime was wearing a MAGA hat while he stood in the voting line outside his local library. An election worker said he couldn’t wear the hat to the polls because the MAGA slogan constituted “electioneering.” Tony responded that the hat had nothing to do with any issue or candidate on the ballot. The election worker threatened to call the police.

    These election workers were relying on a Texas law that forbids electioneering or wearing “a badge, insignia, emblem, or other similar communicative device relating to a candidate, measure, or political party appearing on the ballot” in or near a polling place. The law even prohibits someone from wearing an ID if the name is the same as someone appearing on the ballot. A violation is a criminal misdemeanor. Today, my colleagues and I at Pacific Legal Foundation filed a lawsuit on behalf of Jillian and Tony challenging the Texas ban.

    As it happens, the Supreme Court issued a decision just last year striking down a similar law in another case brought by Pacific Legal Foundation called Minnesota Voters Alliance v. Mansky. The Minnesota law in MVA prohibited wearing a “political badge, political button, or other political insignia” in the polling place. The Court said states can limit some electioneering at the polling place to prevent voter intimidation and excessive disruption. But the government has to have some clear and logical basis for sifting “what may come in from what must stay out.”

    The word “political” was not a clear boundary. As the Court noted, almost anything could be considered political, and the fuzzy language offered too much wiggle room for abuse and discrimination. The attorney arguing for Minnesota drove this point home during an onslaught of blistering questions in oral argument: how about a rainbow flag shirt? Permitted, maybe. How about a “Parkland Strong” shirt? Permitted, probably. How about an NRA shirt? Definite no. How about a shirt with the text of the Second Amendment? Definite no. At about that point, most everyone knew the outcome of the case–the attorney had just proven the inherently arbitrary standard he was trying to defend.

    The Texas case filed today is a bit different. For one, the ban extends to 100 feet outside the polling place, which clearly encompasses sidewalks and other public areas where speech rights enjoy their widest berth. But the ban is not quite as amorphous as the word “political.” Instead, the ban extends to messages that relate to a candidate, measure, or party on the ballot.

    This slightly narrower language probably doesn’t save the Texas law. After all, almost anything can be considered related to a candidate if the candidate has taken any kind of position on it. If a candidate has criticized Trump (have any not?), then is Tony’s MAGA hat “related” to the candidate? If Ben & Jerry’s takes a position on a ballot measure, does a Ben & Jerry’s shirt relate to that ballot measure? Maybe, but it depends on the election worker–and therein lies the problem. As the Supreme Court said in MVA, “A rule whose fair enforcement requires an election judge to maintain a mental index of the platforms and positions over every candidate and party on the ballot is not reasonable.” Not only would such an index be impossible, but the contents and application of that index would be dictated by an election worker’s own biases and background.

    The integrity of the electoral process is vital. But surely Jillian’s firefighter shirt or even the much-reviled MAGA emblem do not imperil the right to vote. Wed don’t shed the right to express ourselves in peaceable ways when we step into a polling line.

    Musk in contempt?

    The SEC wants to slam Elon Musk with contempt over a thirteen word tweet. Musk has taken to Twitter to both vaunt his company and castigate the SEC. He’s under an existing SEC settlement that requires company oversight of his communications. Musk’s brief tweet on Feb. 19 that stoked the ire of the SEC said: “Tesla made 0 cars in 2011, but will make around 500k in 2019.” The SEC swooped in, charging that Musk hadn’t received preapproval for the tweet and convinced Musk had misled the public.

    The SEC’s overzealous attempt to wield the contempt power is disturbing. Especially given Musk’s vocal and mocking disdain for the SEC, the regulator’s attempted coup over the content of his tweets raises serious First Amendment concerns. Here, it seems the 500K estimate was not precise, but Musk went on to clarify on his Twitter feed, and he didn’t conjure the number from the ether. At worst, it was incomplete information. Welcome to Twitter. I just can’t quite stomach the fact that a regulator is out there lurking, ready to pounce on any linguistic imprecision in a forum where brevity is the name of the game. Obviously, Musk’s statements have an impact on the market, but investors are sophisticated actors who should be expected to do their homework. The SEC’s paternalistic and aggressive monitoring of Twitter feeds should raise our hackles.

    Originalism and defamation

    Today, Justice Clarence Thomas issued a solo opinion urging the Supreme Court to reconsider a hallmark case in First Amendment law–New York Times v. Sullivan. That case held that defamation claims brought by public figures had to meet a heightened standard of proof by showing “actual malice” by the alleged defamer. The basic premise is that muscular use of private defamation suits discourages criticism of public figures and thus clashes with First Amendment interests.

    Justice Thomas’s primary complaint with this standard is that judges created it with a wave of the wand rather than a serious analysis of the original understanding of the First Amendment. He points out that the ratifiers of the Constitution gave no indication that they intended to abrogate the long-standing common law of libel that had existed in the colonies and England for centuries. For those who believe that the Constitution’s meaning should reflect what the ratifiers thought the language meant at the time, I think Justice Thomas makes a convincing case.

    Why protect speech?

    The U.S. Supreme Court has extended more protection for speech than other major courts that adjudicate rights, such as the European Court of Human of Rights. Nonetheless, the Supreme Court is frequently wrong about why speech deserves constitutional protection. That error has undermined the First Amendment that the Court purports to protect. Continue reading

    A short note on ideological neutrality

    William‘s excellent post on dishonesty reminded me of an equally excellent post by John McGinnis over at Liberty Law Blog on the ACLU and free speech. The post ended, though, with the following sentence:

    It would be a tragedy for our nation if the ACLU’s decision begins to dissolve the strong social fabric supporting the ideologically neutral First Amendment.

    Ach. There is nothing neutral about the First Amendment. It’s a law based on liberal ideology. The idea of free speech is based on liberal ideology. The other ideologies out there pay great lip service to free speech, but there’s no First Amendment in the post-colonial states of Africa and Asia. Free speech is trumped by an ambiguous form of censorship called “hate speech” in other OECD countries (Western Europe, Australia-New Zealand, Japan). There is no First Amendment in Russia or China or Venezuela.

    Liberalism is the only ideology out there that actually encourages rival ideologies to attack it, not with provocative laws but with one specific law that allows all factions the same space for their platform. The First Amendment is not neutral at all; it is instead an aggressive flaunting of liberalism’s staying power and ability to deliver freedom.

    When libertarians start thinking of their preferred values as “neutral” or “centrist” they begin to echo the Left, which has been dishonest with itself for the past 45-50 years. That’s a road I’d hate to the movement plod through.